PUSHPENDRA KUMAR GOEL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the learned AGA. This writ petition has been filed for quashing a show cause notice under section 3(1) of the UP Control of Goondas Act, 1970 (in short, the Goondas Act), dated 20.11.2008, issued by the ADM (Administration), District Muzaffarnagar. The first submission of the petitioner was that the general nature of material allegations were missing in the notice. We find no substance in this contention as it is specifically mentioned in the notice that so far as Case Crime No. 2393 of 2008 under sections 332, 353, 504 and 506 in which the petitioner had been charge sheeted was concerned, he was engaged in marpeet with the team of officials of the Electricity department, and issuing threats to them, thereby interfering with the performance of their official acts. This in our view amounts to conveying the general nature of material allegations. The further contention of the learned counsel for the petitioner that details and evidence are required to be mentioned in the notice is not correct. In an earlier Crl. Misc. Writ Petition No. 2472: Raj Kumar Dubey Vs. State of U.P. and others, decided on 16.02.2009 reported in 2009(3) ADJ 361, this Bench has held in paragraph 6 after considering the two Full Bench decisions in Ramji Pandey Vs. State of U.P. and others: 1981 Cri.L.J. 1083, and Bhim Sen Tyagi Vs. State of U.P. through D.M. Mahamaya Nagar: [1999(2) JIC 192 (All) (FB)]: "6. In Ramji Pandey's case (supra) it has specifically been observed in paragraph 7 of the judgment that although the expression "material allegations" has not been defined by that Act, according to the dictionary meaning, word "material" means "important and essential", "of significance". The word "allegation" means statement or assertion of facts. Thus, the notice under section 3(1) should contain the essential assertions of facts in relation to the matters set out in clauses (a), (b) and (c) of sub- section(1) of Section 3 of the Act. It need not refer to any evidence or other particulars or details. The names of witnesses, and persons who may have made the complaint against the person against whom action is proposed to be taken or the time, date and place of the offence committed by the person need not be mentioned in the notice. There is a distinction between the "general nature of material allegations" and "particulars of allegations." In accordance with the former expression, the notice need not give any details of the allegations, instead the requirement of law would be satisfied if the notice contains a general statement of facts which need not contain any details or particulars." Secondly, it was argued that as the petitioner was said to be involved in only one case as per the notice, he could not be said to be habitually engaged in impermissible activities, which is required for describing him as a 'goonda' under section 2(b) of the Goondas Act, which reads as follows: 'Section 2 (b) "Goonda" means a person who-- (i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code; or (ii) has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or (iii) has been convicted not less than thrice for an offence punishable under the U.P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959; or (iv) is generally reputed to be a person who is desperate and dangerous to the community; or (v) has been habitually passing incident remarks or teasing women or girls; or (vi) is a tout; The decision of the a Apex Court in Vijay Narain Singh Vs. State of Bihar and others: [(1984) 3 Supreme Court Cases 14] was cited to contend that similarity and continuous repetition of prejudicial acts or omissions was necessary for holding that the person was habitually committing acts prejudicial to the public order under the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Bihar Act). It may be mentioned that the said Bihar Act is similar to the National Security Act. Section 2(d) of the said Act defines an antisocial element as under: "2(d) "Anti-social element" means a person who is -- (i) either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code; or (ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or (iii) who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups of castes or communities; or (iv) has been found habitually passing indecent remarks to or teasing women or girls; or (v) who has been convicted of an offence under Sections 25, 26, 27, 28 or 29 of the Arms Act, 1959." It is important to note that clause 2(iv) of the Goondas Act, which refers to a person who "is generally reputed to be a person who is desperate and dangerous to the community" is conspicuously absent in the Bihar Act. In the present case, it has been specifically mentioned in the show cause notice that the general reputation of the petitioner is that he is a person who was desperate and dangerous to the community and that he was engaged in marpeet, giving threats and indulging in goondaism. The third submission of the learned counsel for the petitioner that the notice had been issued to him in a mala fide manner because he had initiated proceedings before the District Consumer Forum, Muzaffarnagar, against the U.P. Power Corporation, wherein his plea was upheld by order dated 17.5.2006 and the bill of Rs. 2806 and surcharge of Rs. 27464 was quashed and Rs. 2000 was awarded as costs. We are not impressed by this contention of the petititioner's counsel, because in our view the mere obtaining of an order from the District Consumer Forum against the U.P. Power Corporation can hardly provide a motive for the ADM (Administration) to issue the impugned notice dated 9.5.2008 against the petitioner under the Goondas Act after two years of the order of the Consumer Forum. We also see no nexus between the U.P. Power Corporation and the respondent no. 2, ADM (A), who issued the impugned notice under the Goondas Act. In any case, in view of the Division Bench decisions of this Court in Ballabh Chaubey Vs. ADM (Finance), Mathura, reported in 1997 ALJ 1630, and Jainendra @ Chhotu Singh Vs State of U.P, 2007(1)JIC 668(All) and in the earlier decision of this bench in Raj Kumar Dubey Vs. State of U.P. and others, 2009(3) ADJ 361 (DB) it would be open to the petitioner to show cause before the Magistrate concerned where he could raise the present as well as other submissions. In Crl. Misc. Writ Petition No. 22605 of 2008, Rakesh @ Pintu Pradhan v. State of U.P. and others, dated 17.12.08 where reliance has been placed on two decisions of the Apex Court in Kabir Chawla v. State of U.P. and others, 1994 SCC (Crl) 577 and State of U.P. v. Chandra Shekhar Shukla (2000) 9 SCC 392 for the proposition that it is inappropriate for this Court to interfere with interim orders such as orders issuing a show notice under the Goondas Act at the initial stage, and it is open to the petitioner concerned to satisfy the Magistrate that there is no ground for passing the order or for issuing the show cause notice against him. For all these reasons we find no force in this writ petition. It is accordingly dismissed.