# Anmolakram & Ors v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** Criminal Misc. Writ Petition No. 1087 of 2022
- **Bench:** Rakesh Srivastava, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anmolakram-ors-v-state-of-u-p-ors-48455
- **Pages:** 5

## Headnote

Law
-
Constitution
of
India,1950 - Article 226 - UP Control of
Goondas Act, 1970 - Sections 2(b)(i), 3 &
3(1) - Indian Penal Code,1860 - Sections
153, 153-B & 294 - Writ filed against the
Show Cause Notice issued under Goondas Act,
only on the basis of two criminal cases exist
against the accused - preliminary objection -
writ petition not maintainable being premature -
matter is still under consideration - remedy of
appeal available - no plea of 'lack of jurisdiction'
- writ petition is dismissed on the ground of
availability of alternative remedy.(Para - 8)

Writ Petition Dismissed. (E-11)

List of Cases cited:-

## Text

5 All. Anmolakram & Ors. Vs. State of U.P. & Ors.
1189
in Case No.2796 of 2012, pertaining to
Case Crime No.561 of 2012, Section 4/5
Explosive Substances Act, 1908, Police
Station Kotwali Mahoba, District Mahoba,
bearing Case No.2796 of 2012 pending
before Court of Chief Judicial Magistrate-
Mahoba.

26. A further writ in the nature of
mandamus is issued commanding opposite
party
no.3
(Sessions
Judge,
District
Mahoba) to transmit the relevant records of
case no.2796 of 2012 to the Special Court
constituted under the National Investigation
Agency Act, 2008 at Lucknow.

27. The Registry is directed to
circulate the order to the District Judges
after obtaining approval from Hon'ble the
Chief Justice.
----------
(2022)05ILR A1189
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.03.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SAURABH LAVANIA, J.

Criminal Misc. Writ Petition No. 1087 of 2022

Anmolakram & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Surya Kant Tripathi

Counsel for the Respondents:
G.A.

(i)
Criminal
Law
-
Constitution
of
India,1950 - Article 226 - UP Control of
Goondas Act, 1970 - Sections 2(b)(i), 3 &
3(1) - Indian Penal Code,1860 - Sections
153, 153-B & 294 - Writ filed against the
Show Cause Notice issued under Goondas Act,
only on the basis of two criminal cases exist
against the accused - preliminary objection -
writ petition not maintainable being premature -
matter is still under consideration - remedy of
appeal available - no plea of 'lack of jurisdiction'
- writ petition is dismissed on the ground of
availability of alternative remedy.(Para - 8)

Writ Petition Dismissed. (E-11)

List of Cases cited:-

1. Executive Engineer, Bihar St. Housing Board
Vs Ramesh Kumar Singh (1996 vol. 1 SCC 327),

2. Kabir Chawla Vs St. of U.P .& ors. (1994
Suppl. Vol. 1 SCC 274),

3. Ballabh Chaubey Vs Additional District
Magistrate Mathura & anr. (1997 All.L.J. 1630),

4. N. K. Bapna Vs U.O.I. (1992 vol. 4 JT 49),

5. St. of Tamil Nadu Vs P K Shamsuddin (1992
vol. 4 JT 179),

6. Subhash Mujimal Gandhi Vs L. Miningliana
(1994 vol. 6 SCC 14),

7. Raja Vs St. (1972 All. L. J. 537),

8. Harsh Narain Vs District Magistrate (1972
All.L.J. 762).

(Delivered by Hon'ble Rakesh Srivastava,
J. & Hon'ble Saurabh Lavania, J.)

1. The show-cause notices issued by
the Additional District Magistrate, Sitapur,
Respondent 2 herein, under Section 3 (1) of
the Uttar Pradesh Control of Goondas Act,
1970 (for short the 'Act') are under
challenge in the present writ petition.

2. Ms. Rupa Mishra, Advocate
holding brief of Shri Suryakant Tripathi,
the learned counsel for the Petitioners has
contended that the notices have been issued
on the basis of two criminal cases; it is
contended that Section 2(b)(i) defines
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
'Goonda' to mean a person who either by
himself or as member or leader of a gang,
habitually commits or attempts to commit,
or abets the commission of an offence
punishable under Section 153 or 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;
that only on the basis of two criminal cases,
it cannot be said that the petitioner is a
person,
who
habitually
commits
the
aforesaid offences. It is contended that the
general nature of the material allegations
against the Petitioners in respect of Clauses
(a) (b) and (c) of sub-section (1) of Section
3 of the Act have not been mentioned in the
notices and as such the said notices are
illegal.

3. Ms. Ruhi Siddiqui, learned
Additional
Government
Advocate
appearing
on
behalf
of
the
StateRespondents on the other hand has raised a
preliminary
objection
regarding
the
maintainability of the writ petition. The
counsel contends that the Petitioners have
yet to appear before Respondent 2 and
show-cause; the writ petition at this stage,
is premature and should not be entertained.

4. At this juncture, it is relevant to
keep in mind the observations made by the
Apex Court, though in a slightly different
context in Executive Engineer, Bihar State
Housing Board vs. Ramesh Kumar Singh,
(1996) 1 SCC 327. Paragarph 10 of the said
report reads as under: -

"10. We are concerned in this case,
with the entertainment of the Writ Petition
against a show cause notice issued by a
competent statutory authority. It should be
borne in mind that there is no attack against
the vires of the statutory provisions
governing the matter. No question of
infringement of any fundamental right
guaranteed by the Constitution is alleged or
proved. It cannot be said that Ext. P-4
notice is ex facie a ''nullity' or totally
"without jurisdiction" in the traditional
sense of that expression -- that is to say,
that even the commencement or initiation
of the proceedings, on the face of it and
without
anything
more,
is
totally
unauthorised.
In
such
a
case,
for
entertaining a writ petition under Article
226 of the Constitution of India against a
show-cause notice, at that stage, it should
be shown that the authority has no power or
jurisdiction, to enter upon the enquiry in
question. In all other cases, it is only
appropriate that the party should avail of
the alternate remedy and show cause
against the same before the authority
concerned and take up the objection
regarding jurisdiction also, then. In the
event of an adverse decision, it will
certainly be open to him to assail the same
either in appeal or revision, as the case may
be, or in appropriate cases, by invoking the
jurisdiction under Article 226 of the
Constitution of India."

(emphasis supplied)

5. In Kabir Chawla vs. State of U.P.
and others, 1994 Supp (1) SCC 274, while
dealing with a challenge to a notice issued
under Section (3)(1) of the Act, the Apex
Court has held as under :

"The Petitioner has made a grievance
in relation to the proceedings that have
been initiated against him by the District
Magistrate, Nainital, by the show-cause
notice dated March 10, 1993 under Section
3 (1) of the U.P. Control of Goondas Act,
1970. The petitioner states that he has
submitted his reply to the show-cause
notice but no final order has been made so
far and that he has to appear before the
5 All. Anmolakram & Ors. Vs. State of U.P. & Ors.
1191
District
Magistrate.
The
petitioner,
however, prays that the said proceedings
may be quashed. We do not find any
ground for quashing the said proceedings at
this
stage.
The
matter
is
under
consideration
before
the
District
Magistrate. It is open to the petitioner to
satisfy the District Magistrate that no
ground has been made out for passing the
order against him. In the writ petition the
petitioner has not made out a case that in
issuing the show-cause notice the District
Magistrate was actuated by mala fides.
There is, therefore, no reason to assume
that the District Magistrate would not give
a fair consideration to the matter. We are,
therefore, unable to accept the submissions
of the petitioner in this regard."

(emphasis supplied)

6. In Ballabh Chaubey vs. Additional
District Magistrate (Finance), Mathura
and another 1997 All LJ 1630, a Division
Bench of this Court considered the question
of maintainability of a writ petition at the
stage of notice under Section 3 of the Act
and after taking into account the provisions
of the Act and a catena of decisions of the
Apex Court as well as of this Court,
dismissed the writ petition on the ground of
availability
of
alternative
remedy.
Paragraphs 7A to 11 of the said report are
extracted below :

"7A. The detention laws like National
Security Act, or Conservation of Foreign
Exchange and Prevention of Smuggling
Activities Act make serious in road in the
liberty of a person. Under these laws a
person is detained without any prior notice
and that too on the subjective satisfaction
of
the
detaining
authority
which
satisfaction cannot be challenged on merits.
The person detained gets only a right to
make representation against his detention
but that too after he has been detained and
he has been deprived of his liberty. The
decision of the representation naturally
takes
time.
The
principle
that
the
machinery provided by the Act should not
be permitted to be bypassed by taking
recourse to proceedings under Article 226
of the Constitution prior to execution of the
detention order was reiterated even in such
cases.
In
Additional
Secretary
to
Government of India v. Smt. Alka Subhash
Gadia, 1991 (1) JT 549, the submission on
behalf of the detaining authority is noticed
in para 25 of the Report which is as under :

"It was contended by Sri Sibbal,
learned Additional Solicitor General, on
behalf of the appellants that since the
detention law is constitutionally valid, the
order passed under it can be challenged
only in accordance with the provisions of,
and the procedure laid down, by it. In this
respect there is no distinction between the
orders passed under the detention laws and
those passed under other laws. Hence, the
High Court under Article 226 of this Court
under Article 32 of the Constitution should
not exercise its extraordinary jurisdiction in
a manner which will enable a party to bypass the machinery provided by the law."

The Court after considering the
submissions of the parties held as follows
in para 30:

"............... The power under Articles
226 and 32 are wide, and are untrammelled
by any external restrictions and can reach
any executive order resulting in, civil or
criminal
consequences.
However,
the
Courts have over the years evolved certain
self-restraints for exercising these powers.
They have done so in the interests of the
administration of justice and for better and
more efficient and informed exercise of the
said powers. These self-imposed restraints
are not confined to the review of the orders
passed under detention law only. They
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
extend to the orders passed and decisions
made under all laws. It is in pursuance of
this self-evolved judicial policy and in
conformity with the self-imposed internal
restrictions that the Courts insist that the
aggrieved person first allow the due
operation and implementation of the
concerned law and exhaust the remedies
provided by it before approaching the High
Court and this Court to evoke their
discretionary extraordinary and equitable
jurisdiction under Articles 226 and 32
respectively. That jurisdiction by its very
nature is to be used sparingly and in
circumstances where no other efficacious
remedy is available............"

This decision has been subsequently
followed in N.K. Bapna v. Union of India,
1992 (4) JT 49, State of Tamil Nadu v. P.K.
Shamsuddin, 1992 (4) JT 179: (AIR 1992 SC
1937) and Subhash Mujimal Gandhi v. L.
Miningliana, 1994 (6) SCC 14: (1994 AIR
SCW 4975). The provisions of detention laws
are far more stringent than the Control of
Goondas Act as here order is passed after
notice and trial and the person against whom
order is passed does not lose his liberty. He is
merely deprived of his right to live in a
particular area from where he is externed but
is free to reside any where else in the country.
There is no reason why the same principle
should not apply in the present case as well.
The law being well settled that where a
Statute provides a machinery of its own, the
aggrieved person should first exhaust the
remedies provided under the Statutes before
approaching the High Court under Article
226 of the Constitution and the High Court
would not normally entertain a petition
straightway, the present petition challenging
the notice is liable to be rejected on the
ground of alternative remedy.

8. In Raja Sukhnandan v. State, AIR
1972 All 498: (1972 All LJ 537), the writ
petition was filed at the stage of notice.
The
Division
Bench
examined
the
contention based upon the constitutional
validity of U.P. Control of Goondas Act
but refused to consider the submission
regarding illegality of the notice on the
ground that the same could be agitated
before the District Magistrate and if the
decision went against the petitioner, in
appeal before the Commissioner. In Kabir
Chawla v. State of U.P., 1994 SCC (Cri)
577 the validity of the notice u/S. 3 of the
Act was assailed but the Supreme Court
declined to go into this question on the
ground that the petitioner could satisfy
the District Magistrate who was seized of
the matter. It may be mentioned here that
in all the cases where validity of notice
issued under similar Statute relating to
externment of Goondas was assailed
before the Supreme Court, the matter had
been taken in appeal against final orders
of externment (see Gurucharan Singh v.
State of Bombay, AIR 1952 SC 221, Hari
Khenu Gawli v. Dy. Commissioner of
Police, AIR 1956 SC 559 : (1956 Cri LJ
1104); Bhagubhaj v. District Magistrate,
AIR 1956 SC 585 : (1956 Cri LJ 1126)
and State of Gujarat v. Mehboob Khan,
AIR 1968 SC 1468 : 1969 Cri LJ 26.

9. There is another reason for not
entertaining the writ petition at the stage of
notice. As the preamble of the Act shows it
has
been
enacted
to
make
special
provisions for the Control and Suppression
of Goondas with a view to the maintenance
of Public Order. The provisions of the Act
are intended to prevent further mischief by
a Goonda and not to secure his conviction
in a pending case. If a person is permitted
to challenge the notice at the initial stage
and seek stay of the proceedings the very
purpose for which notice is issued and the
law under which it is issued will be
5 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
1193
frustrated as the externment order remains
in operation only for a limited period.

10.
Learned
counsel
has
next
submitted that in Ramji Pandey v. State of
U.P., 1981 All LJ 897 : 1981 All LJ 897
writ petition had been filed challenging
the notice under Section 3 of the Act and
the writ petition was allowed by a Full
Bench of this Court and therefore the
present petition also deserves to be
entertained. The judgment of the Full
Bench shows that the question whether
writ petition should be entertained against
a notice was not at all considered. The
only question which was canvassed and
was considered by the Bench was whether
the notice was in accordance with the
requirement of Section 3 of the Act. No
such argument that a writ petition under
Article 226 of the Constitution should not
be entertained at the stage of notice seems
to have been canvassed and therefore no
decision has been given on this point. It is
what settled that a decision is an authority
for when it actually decides. What is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
flows
from
the
various
observations made in it. (See M/s Orient
Paper and Industries Ltd. v. State of
Orissa, AIR 1991 SC 672 para 19).
Doctrine of precedent is limited to the
decision itself and as to what is necessarily
involved in it. Judicial authority belongs
not to the exact words used in this or that
judgment, nor even to all reasons given,
but only to the principle accepted and
applied as necessary grounds of decision
see Krishna Kumar v. Union of India,
(1990) 4 SCC 207 : (1990 Lab IC 1490
paras 18 and 19). The Full Bench having
not,
considered
the
question
of
maintainability of the writ petition at the
stage of notice the decision rendered by it
cannot be held to be an authority or
binding (sic) precedent for holding the
writ petition to be maintainable.

11. In view of the reasons discussed
above the, writ petitions are dismissed on
the ground of alternative remedy."
 (emphasis supplied)

7. The validity of Section 3 of the Act
has been considered by this Court in Raja v.
State, 1972 All LJ 537 and in Harsh Narain v.
District Magistrate, 1972 All LJ 762. In both
of these cases, the two Division Benches
have upheld the validity of the Act.

8. It is not the case of the Petitioners
that Respondent 2 has no power or
jurisdiction to issue the show-cause
notice. The matter is under consideration
before Respondent 2. It is open to the
Petitioners to show to Respondent 2 that
on merits no case is made out against
them. If an order is passed against the
Petitioners it would be subject to an
appeal
to
the
Commissioner.
We,
therefore, do not think it appropriate to
consider the matter on merits in this
proceeding.

9. In the result, the writ petition is
dismissed on the ground of availability of an
alternative remedy.
----------
(2022)05ILR A1193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHBAD 19.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Misc. Writ Petition No. 4096 of 2022

Om Prakash & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents