# Deepu Yadav @ Deep Singh v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-21
- **Case number:** Criminal Misc. Writ Petition No. 14042 of 2023
- **Bench:** Anjani Kumar Mishra, Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepu-yadav-deep-singh-v-state-of-u-p-ors-49395
- **Pages:** 5

## Headnote

Criminal Law - U.P. Control of Goondas
Act, 1970 - Section 3(1) - A notice issued to
the petitioner under Section 3(1) of U.P. Control
of Goondas Act- challenge to a notice is not
tenable- existence of an alternative remedy
before
the
District
Magistrate-have
every
opportunity of replying to the impugned showcause notice issued -and to contest the
proceedings.

W.P. dismissed. (E-9)

Cases cited:

## Text

11 All. Deepu Yadav @ Deep Singh Vs. State of U.P. & Ors.
71

Even learned AGA has seconded the
submissions that have been made by
learned counsel for the first informant and the
assertions made in the counter affidavit on
record.

Under the circumstances, this court is
constrained to hold that prima facie, the
allegation in the first information report that the
victim is minor, is correct.

Since there exists the educational record of
the victim regarding her age, this court does not
consider it necessary to open the sealed
ossification test report as also the statement of
the victim under section 161 and 164 Cr.P.C.
because the same is not required to be looked
into in view of section 94 of the Act of 2015.

In any case, these documents have been
brought on record on the basis of a prima facie
false statement made on behalf of the victim.

Since it has been held herein-above that
the allegation in the first information report that
the victim is minor, stands established from the
material on record, the allegations in the first
information report contain the ingredients of a
cognizable offence. The FIR under the
circumstances cannot be quashed.

As the issue involved in the petition is
whether the victim is minor or her statement
under section 161 and 164 Cr.P.C. is also of no
consequence because no person can depose, on
the basis of the personal knowledge about his or
her own age or date of birth.

The writ petition is accordingly dismissed
with costs of Rs. 5000/- upon the petitioners for
having made a false assertion both in the
petition and before the Court.
----------
(2023) 11 ILRA 71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2023
BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Criminal Misc. Writ Petition No. 14042 of 2023

Deepu Yadav @ Deep Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dileep Singh Yadav

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Control of Goondas
Act, 1970 - Section 3(1) - A notice issued to
the petitioner under Section 3(1) of U.P. Control
of Goondas Act- challenge to a notice is not
tenable- existence of an alternative remedy
before
the
District
Magistrate-have
every
opportunity of replying to the impugned showcause notice issued -and to contest the
proceedings.

W.P. dismissed. (E-9)

Cases cited:

1. Kareem Vs St. of U.P. through Principal
Secretary- Misc. Bench No. 24256 of 2020

(Delivered by Hon'ble Anjani Kumar
Mishra, J.
&
Hon'ble Vivek Kumar Singh, J.)

1. Heard learned counsel for the
petitioner, learned A.G.A. for the State and
perused the record.

2. The writ petition has been filed
seeking following relief:
72 INDIAN LAW REPORTS ALLAHABAD SERIES

"Issue a writ, order or direction
in the nature of writ of certiorari quashing
the impugned notice issued by District
Magistrate, Auraiya/respondent no. 2 in
Case No. D-202303050000546, under
Section 3(1) of U.P. Control of Goondas
Act, Police Station- Arvakatra, District-
Auraiya."

3. Challenge in the writ petition is to a
notice issued to the petitioner under Section
3(1) of U.P. Control of Goondas Act. In our
considered opinion, challenge to a notice is
not tenable. The petitioner still have every
opportunity of replying to the impugned
show-cause notice issued to him and to
contest the proceedings, if any, that may be
drawn on its basis.

4. Counsel for the petitioner has relied
upon the judgment and order dated
10.08.2023 passed by a Co-ordinate Bench
of this Court in Criminal Misc. Writ
Petition No. 12619 of 2023 (Govardhan vs.
State of U.P.). Therein the notice was on
the basis of a solitary case.

5. However, in Kareem vs. State of
U.P. through Principal Secretary, Misc.
Bench No. 24256 of 2020, vide order dated
04.01.2021, a co-ordinate Bench has
refused to interfere in similar circumstances
on the ground of existence of an alternative
remedy of showing cause before the
District Magistrate. This judgment is earlier
in time and is based also on pronouncements
of the Apex Court, but has not been considered
in the judgment cited. In Kareem (supra) also,
challenge tothe notice was on the ground that it
had been issued on the basis of a single criminal
case judgment is extracted below:

"Now, coming to the definition of
'Goonda' the Court finds that Goonda means a
person who is covered by (i) of Section 2(b) or
Clause (ii) or Clause (iii) or Clause (iv) or
Clause (v) of the said Section. All the clauses
are disjunctive as is evident from the use of the
word 'or'.

Clause (iv) of Section 2(b) makes it
very clear that a person can be categorized as
Goonda if he is generally reputed to be a
person who is desperate and dangerous to the
community. This provision has not been
considered in Suresh Tiwari' case (supra),
though, Section 2(b) has been quoted in the said
judgment. As regards the decision in Imran
alias Abdul Qudus Khan the said case also
considers meaning of the words 'habitual
criminal' and does not delve upon other clauses
of Section 2(b). The decision of the Supreme
Court rendered in the case of Vijay Narain
Singh Vs. State of Bihar and Ors. reported in
(1984) 3 SCC 14 as referred in the judgement
in Suresh Tiwari's case (supra) deals with
Section 2(b) of Bihar Control of Crimes Act,
1981 and it was not a case of challenge to a
notice.

Be that as it may, the specific issue as
to maintainability of writ petition under Article
226 of the Constitution of India against a notice
issued under Section 3(1) of U.P. Control of
Goondas Act, 1970 came up for consideration
before a Division Bench of this Court in case of
Ballabh Chaubey Vs. Additional District
Magistrate (Finance), Mathura and Anr;
Criminal Misc. Writ Petition No. 2954 of 1996
decided on 22.01.1997 reported in 1997 A. Cr.
R. 387 (1997 ALJ 1630). A Division of this
Court specifically considered this issue and
after referring to various decisions of this
Court and that of the Hon'ble Supreme
Court opined not to entertain the writ
petition at the stage of notice and gave
cogent and detailed reasons in support of
its conclusion. Relevant extract of the said
decision is quoted hereinbelow:-

"8. The detention laws like
National Security Act, or Conservation of
Foreign Exchange and Prevention of
11 All. Deepu Yadav @ Deep Singh Vs. State of U.P. & Ors.
73
Smuggling Activities Act make serious inroad 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 by-passed 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, JT 1991 (1) SC 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
by-pass the machinery provided by the
law."

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

"................... The power under
Article 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-restraint 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 selfimposed restraints are not confined to the
review of the orders passed under detention
law only. They 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 selfimposed 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
said 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. Bapan v.
Union of India, JT 1992 (4) 49; State of
Tamil Nadu v. P. K. Shamsuddin, JT 1992
(4) 179 and Subhash Mujimal Gandhi v.
L. Miningliana, 1994 (6) SCC 14. 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
74 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

9. In Raja Sukhnandan v. State,
AIR 1972 All 498, 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 under
Section 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
Khemu
Gawli
v.
Dy.
Commissioner of Police, AIR 1956 SC
559; Bhagubhaj v. District Magistrate,
AIR 1956 SC 585 and State of Gujarat v.
Mehboob Khan, AIR 1968 SC 1468.

10. 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
frustrated as the externment order remains
in operation only for a limited period.

11. Learned counsel has next
submitted that in Ramji Pandey v. State of
U.P., 1981 Cri LJ 1083, 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
a
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 well-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
11 All. Chabi Nath Vs. State of U.P.
75
Krishna Kumar v. Union of India, AIR
1990 SC 1782 pages 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 precedent for holding the writ
petition to be maintainable.

12. In view of the reasons
discussed above the writ petitions are
dismissed on the ground of alternative
remedy."

6. Under the circumstances, no
interference is called for at this stage.

7. Accordingly, this petition fails and
is dismissed.
----------
(2023) 11 ILRA 75
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2023
BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 325 of 1997

Chabi Nath ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri K.N. Pandey, Sri Santosh Kumar Yadav

Counsel for the Opposite Party:
Govt. Advocate

Criminal
Law-The
Indian
Penal
Code,1860-Sections 325 & 326--- Criminal
revision against the judgment and order of
conviction and sentencing under Section 326
I.P.C and was sentenced to three years rigorous
imprisonment--- The accused gnawed the nose
of the informant with his teeth--- The teeth of
human being cannot be considered as deadly
weapon as per the description of deadly weapon
enumerated under Section 326 I.P.C.---The
alleged injury caused by the revisionist to the
informant would fall under Section 325 I.P.C
which is meant for the punishment for
voluntarily causing grievous hurt--- Conviction
under Section 326 I.P.C is converted into
Section 325 IPC.

Revision partly allowed. .(E-15)

List of the cases referred-:

1. Shakeel Ahmed Vs State (Nct of Delhi) 2001
0 (Supreme) SC 911

2. Jamil Hassan Vs St. of U.P. 1974 Crl.J. 867

3. Chaurasi Manjhi Vs St. of Bihar, A.I.R 1970
Patna 322

4. Gopal Bhai Chhagan Lal Soni Vs St. of Gujrat,
(1972) 13 Guj L.R 848

5. Jagat Singh & anr. Vs St. of Delhi 1984 SCC
Online Delhi 93

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri K.N. Pandey, and
Santosh Kumar Yadav, learned counsel for
the revisionist, learned A.G.A for the State
and perused the record.

2. This criminal revision has been
preferred
by
the
convicted
accusedrevisionist against the judgment and order
of
conviction
and
sentencing
dated
28.08.1992 passed by Judicial Magistrate-I,
Bareilly in Criminal Case No. 884 of 1992
- State Vs. Chhabi Nath & Ors., by which
the
accused-revisionist
was
convicted
under Section 326 I.P.C and was sentenced
to three years rigorous imprisonment
without awarding any amount of fine and
also against the judgment and order passed
by Additional District & Sessions Judge-