# Jainendra @ Chhotu Singh v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-21
- **Case number:** Criminal Misc. Writ Petition No. 9400 of 2005
- **Bench:** Amitava Lala, Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jainendra-chhotu-singh-v-state-of-u-p-and-others-40802
- **Pages:** 11

## Headnote

Constitution of India, Art. 21, 226-read
with Control of Gundas Act, 1970 Section
3 (1)(a)(b)(c), 6-writ petition against
show
cause
notice-held-not
maintainable-aggrieved person has right
to explain the material before the D.M.-
examine
the
witnesses
against
the
speaking order passed by Magistratestatutory provision for appeal under
section 6 of the Act the impugned
notices-held-in conformity of full Bench
decision of the Hon'ble Court-need no
interference.

Held: Para 17

Experience says that as against the show
cause a person has every right to give
reply saying that the materials are not
sufficient for the purpose of calling. It is
within
the
domain
of
the
District.
Magistrate to consider all aspects of the
matter and give his opinion. Reasonable
opportunity of tendering an explanation
is not bare opportunity. The person
concerned will have. a right to consult
and defend the cause by a counsel of his
choice and have an opportunity of
examining as well as examining any
other witnesses as he wishes to produce
in support of his explanation, unless for
the reasons to be recorded in writing the
District Magistrate is of opinion that the
request is made for the purpose of
vexation or delay. Apart from that, as per
Section
6
of
the
Act
any
person
aggrieved by an order made under
Section 3,4or 5 may appeal to the
Commissioner within fifteen days from
the date of the order. The appellant or
his counsel will be entitled to inspect the
record which was not disclosed to him at
the inquiry, if any, held under Section 3.
The Commissioner may either confirm
the order, with or without modification,
or set it aside, and may, pending disposal
of the appeal, stay the operation of the
order subject to such terms, if any, as.
He thinks fit. Therefore, the Act is well
guided
unless,
of
course,
factual
situation like Ramji Pandey (supra)
arose. In fact both the Full Bench and
the Supreme Court discouraged formal
service of notice under Section 3 of the
Act. The notice will be backed by some
materials,
which
can
indicate
the
criminal activities. Only by virtue of such
notice the right of individuals will not
adversely affect nor the right under
Article 21 of the Constitution of -India
will be infringed. It will be infringed only
when no indications are given in. the
notice in respect of Clause (a), (b) and
(c) of Section 3 (1) of the Act or it is not
referred. If it is indicated, sufficiency as
regards general materials are complied
with. Now, it is for the persons, who got
the notice, to give reply contradicting
such reference and proceed with the
matter. Therefore, we can, not justify the
cause of interference with the show
cause notice. This order is passed not
only in conformity with the aforesaid Full
Bench judgements rat

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Section 6A of the Court Fees Act as
applicable in the State of U.P. reads as
under:-
" 6-A. Appeal against order to pay
court-fee. (1) Any person called upon to
make good a deficiency in court-fee may
appeal against such order as if it were an
order appeal able under Section 104 of the
Code of Civil Procedure.

The party appearing shall file with
the memorandum of appeal, a certified
copy of the plaint together with that of the
order appealed against.

(2) In case an appeal is filed under
Sub-section (1), and the plaintiff does not
make good the deficiency, all proceedings
in the suit shall be stayed and all interim
orders made, including an order granting
an injunction or appointing a receiver,
shall be discharged.

(3) A copy of the memorandum of
appeal together with a copy of the plaint
and of the order appealed against shall be
sent forthwith by the appellate court to the
[Commissioner of Stamps].

(4) If such order is varied or reversed
in appeal, the appellate court shall if the
deficiency has been made good before the
appeal is decided grant to the appellant a
certificate, authorising him to receive
back from the Collector such amount as is
determined by the appellate court to have
been paid in excess of the proper court
fee.

(5) The court may make such order
for the payment of costs of such appeal as
it deems fit, and where such costs are
payable to the Government, they shall be
recoverable as arrears of land revenue."

In my view, the order of the Civil
Judge is an order which is appealable
under Section 6A of the Act. The question
as to whether the court fee payable should
be under Section 7 (iv-A) or under
Section 17(iii) of Schedule II of the Court
Fees Act can be questioned by the
plaintiff by filing an appeal under Section
6A of the Court Fees Act.

In view of the aforesaid, the
petitioner has a statutory remedy of filing
an appeal under Section 6A of the Court
Fees Act as applicable in the State of
Uttar Pradesh. The writ petition is
therefore dismissed on the ground of an
alternative remedy. Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2006

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Writ Petition No. 9400 of 2005
Connected with
Crl. Misc. Writ Petition Nos.3590 of 2004, 3591
of 2004, 5978 of 2004, 8619 of 2004, 6906of
2005, 11868 of 2005, 11884 of 2005, 11885 of
2005, 11901 of 2005, 11911 of 2005, 12310 of
2005, 12333 of 2005, 12397 of 2005, 12526 of
2005, 12527 of 2005, 12550 of 2005, 12652 of
2005, 12753 of 2005, 12768 of 2005, 12802 of
2005, 12859 of 2005, 12879 of 2005, 157 of
2006, 340 of 2006, 363 of 2006, 1593 of
2006, 1682 of 2006, 1768 of 2006, 1805 of
2006, 2339 of 2006, 2465 of 2006, 2545 of
2006, 2643 of 2006, 2730 of 2006, 3424 of
2006, 3983 of 2006.

Jainendra @ Chhotu Singh
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri N.K. Mishra and others
1 All] Jainendra @ Chhotu Singh V. State of U.P. and others
15
Counsel for the Respondents:
Sri Surendra Singh
Sri Neeraj Kant Verma
Sri A.N. Mulla
A.G.A.

Constitution of India, Art. 21, 226-read
with Control of Gundas Act, 1970 Section
3 (1)(a)(b)(c), 6-writ petition against
show
cause
notice-held-not
maintainable-aggrieved person has right
to explain the material before the D.M.-
examine
the
witnesses
against
the
speaking order passed by Magistratestatutory provision for appeal under
section 6 of the Act the impugned
notices-held-in conformity of full Bench
decision of the Hon'ble Court-need no
interference.

Held: Para 17

Experience says that as against the show
cause a person has every right to give
reply saying that the materials are not
sufficient for the purpose of calling. It is
within
the
domain
of
the
District.
Magistrate to consider all aspects of the
matter and give his opinion. Reasonable
opportunity of tendering an explanation
is not bare opportunity. The person
concerned will have. a right to consult
and defend the cause by a counsel of his
choice and have an opportunity of
examining as well as examining any
other witnesses as he wishes to produce
in support of his explanation, unless for
the reasons to be recorded in writing the
District Magistrate is of opinion that the
request is made for the purpose of
vexation or delay. Apart from that, as per
Section
6
of
the
Act
any
person
aggrieved by an order made under
Section 3,4or 5 may appeal to the
Commissioner within fifteen days from
the date of the order. The appellant or
his counsel will be entitled to inspect the
record which was not disclosed to him at
the inquiry, if any, held under Section 3.
The Commissioner may either confirm
the order, with or without modification,
or set it aside, and may, pending disposal
of the appeal, stay the operation of the
order subject to such terms, if any, as.
He thinks fit. Therefore, the Act is well
guided
unless,
of
course,
factual
situation like Ramji Pandey (supra)
arose. In fact both the Full Bench and
the Supreme Court discouraged formal
service of notice under Section 3 of the
Act. The notice will be backed by some
materials,
which
can
indicate
the
criminal activities. Only by virtue of such
notice the right of individuals will not
adversely affect nor the right under
Article 21 of the Constitution of -India
will be infringed. It will be infringed only
when no indications are given in. the
notice in respect of Clause (a), (b) and
(c) of Section 3 (1) of the Act or it is not
referred. If it is indicated, sufficiency as
regards general materials are complied
with. Now, it is for the persons, who got
the notice, to give reply contradicting
such reference and proceed with the
matter. Therefore, we can, not justify the
cause of interference with the show
cause notice. This order is passed not
only in conformity with the aforesaid Full
Bench judgements ratio of this High
Court but also on the sufficiency of
materials in the notice
Case law discussed:
1981 ACJ-385 (FB), 1972 ALJ-762, 1999 (2)
JIC-192 (Alld.), AIR 1991 sC-22, 2002 JIC (2)-
469 (Alld.), 2002 JIC (2)-548, AIR 1996 SC691, J.T. 1995 (8) SC-331, 2006 (5) SCC-228

(Delivered by Hon'ble Amitava Lala, J.)

1. All the aforesaid matters are
related to necessity and requirement of
notice under section 3 of Uttar Pradesh
control of Goondas Act, 1970. Since the
cause of action of individual action of the
individual cases are uniform in nature all
the aforesaid matters are taken up together
for the purpose of disposal by this solitary
judgement having binding effect on all the
writ petitions, after making scrutiny of the
cases individually.
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2. The Uttar Pradesh Control of
Goondas Act, 1970 (hereinafter referred
to as the 'Act') was promulgated with an
intention for the control and suppression
Of Goondas with a view to maintenance
of the public order.

Section 2-(a) and (b) of the Act, is as
follows: -
"(a) "District Magistrate" includes an
Additional
District
Magistrate
specially empowered by the State
Government in that behalf;
(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, 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, 1987 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 indecent
remarks or teasing women or girls; or

(vi) is a tout;
Explanation.- 'Tout' means a person who-

(a) accepts or obtains, or agrees to
accept or attempts to obtain from any
person for himself or for any other person,
any gratification whatever as a motive or
reward for inducing; by corrupt or illegal
means any public servant or member of
Government, Parliament or of State
Legislature, to do or forbear to do
anything or to show favour or disfavour to
any person or to render or attempt to
render any service or disservice to any
person,
with
the
Central
or
State
Government,
Parliament
or
State
Legislature,
any
local
authority,
Corporation, Government Company or
public servant; or

(b) procures, in consideration of any
remuneration moving from any legal
practitioner
interested
in
any
legal
business, or proposes to any legal
practitioner or to any person interested in
legal business to procure, in consideration
of any remuneration moving from either
of them, the employment of legal
practitioner in such business; or

(c) for the purposes mentioned in
explanation (a) or (b), frequents the
precincts of civil, criminal or revenue
Courts,
revenue
or
other
offices,
residential colonies or residences or
vicinity of the aforesaid or railway or bus
stations, landing stages, lodging places or
other places of public resort; or

(vii) is a house-grabber.

Explanation. -'House-grabber' means a
person who takes or attempts to take or
aids or abets in taking unauthorised
possession or having law-fully entered
unlawfully remains in possession, of a
1 All] Jainendra @ Chhotu Singh V. State of U.P. and others
17
building including land, garden, garages
or out-houses appurtenant to a building."

Scope and ambit of Section 3 of the
Act, which is relevant for the purpose of
consideration, as also as follows:-

(a) that any person is a Goonda; and

"3. Externment, etc. of Goondas.-
Where
it
appears
to
the
District
Magistrate.- .

(a) that any person is a Goonda; and

(b) (i)
that his movements or acts in
the district or any part thereof are causing,
or are calculated to cause alarm, danger or
harm to persons or property; or

(ii) that there are reasonable grounds for
believing that he is engaged or about to
engage, in the district or any part thereof,
in the commission of an offence referred
to in sub-clause (i) to (iii) of clause (b) of
Section 2, or in the abetment of any such
offence; and

(c) that witnesses are not willing to
come forward to give evidence against
him by reason of apprehension on their
part as regards the safety of their person
or property-

the District Magistrate shall by notice in
writing inform him of the general nature
of the material allegations against him in
respect of clauses (a), (b) and (c) and give
him a reasonable opportunity of tendering
an explanation regarding them.

(2) The person against whom an order
under this section is proposed to be made
shall have the right to consult and be
defended by a counsel of his choice and
shall be given a reasonable opportunity of
examining himself, if he so desires, and
also of examining any other witnesses that
he may wish to produce in support of his
explanation, unless for reasons to be
recorded in writing the District Magistrate
is of opinion that the request is made for
the purpose of vexation or delay.

(3) Thereupon the District Magistrate on
being
satisfied
that
the
conditions
specified in clauses (a), (b) and (c) of
subsection (1) exist may by order in
writing-

(a) direct him to remove himself outside
the area within the limits of his local
jurisdiction or such area and any district
or districts or any part thereof, contiguous
thereto, by such route, if any, and within
such time as may be specified in the order
and to desist from entering the said area
or the area and such contiguous district or
districts or part thereof, as the came may
be from which he was directed to remove
himself until the expiry of such period not
exceeding six months as may be specified
in the said order;

(b) (i)
require such person to notify his
movements or to report himself, or to do
both, in such manner, at such time and to
such authority or person as may be
specified in the order;
(ii) prohibit or restrict possession or use
by him of any such article as may be
specified in the order;
(iii) direct him otherwise to conduct
himself in such manner as may be
specified in the order,

until the expiry of such period, not
exceeding six months as may be specified
in the order."
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
3. According to the petitioner/s,
there should not be any mechanical
reasoning in the notice. The Act is not
punitive but preventive. Therefore, if the
notice is defective, all proceedings taken
on the basis of such notice are void ab
initio. Since the challenge is thrown in
respect of the notice to be issued on the
part of the District Magistrate being part
and parcel of the State infringing the right
of the citizens, writ lies challenging the
notice. Whenever certain thing is directed
by law to do in certain manner, the same
has to be done accordingly. The legal
notice under preventive law is to be made
with the subjective satisfaction of the
cause.

4. In 1981 All. C.J. 385 (Ramji
Pandey Vs. State of U.P. and others) a
Full Bench of this High Court considered
the point of issuance of notice stating
therein general nature of material
allegations. Factually in that case the
District Magistrate, Ballia, issued a notice
to the petitioner therein directing him to
appear before him at a particular date and
time to give his explanation in writing as
to why an order should not be passed
against him. The petitioner instead of
appearing before the District Magistrate
filed the writ petition under Article 226 of
the Constitution of India challenging
validity of the notice. The question arose
before such Bench what does the
expression "general nature of material
allegations"
denote.
The
expression
"material allegations" has not been
defined under the Act. According to the
dictionarical
meaning,
the
word
"material" means important and essential
of significance. The word "allegation"
means statement or assertion of facts.
Thus, the notice under Section 3 (1) of the
Act should contain the essential assertions
of facts in relation to the matter set out in
Clauses (a), (b) and (c) of Sub-section (1)
of Section 3 of the Act. It need not to
refer any evidence or other particulars or
details. The name of witnesses, and
persons who may have made 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 in between
"general
nature
of
material
allegations"
and
"particulars
of
allegations". In the former 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.

5. Ultimately it was held by the Full
Bench of this Court "In our opinion, it is
difficult to uphold the respondents'
contention that the list of first information
reports of list of cases in which the
petitioner was convicted or the list of
cases, in which the petitioner was
acquitted or the list of pending criminal
cases against the petitioner is sufficient to
meet the requirement of setting out "the
general nature of material allegations. The
impugned notice is, therefore, not in
accordance with Section 3(1) of the Act
as it fails to set out general nature of
material
allegations
against
the
petitioner."

6. In the aforesaid referred case, the
learned Standing Counsel urged that on a
liberal construction of the notice the
material allegations, on the basis of which
action against the petitioner is proposed to
be taken, are discernable, and as such the
notice
is
not rendered
illegal and
proceedings taken against the petitioners
1 All] Jainendra @ Chhotu Singh V. State of U.P. and others
19
are valid. It is true that validity of a notice
is generally upheld if it substantially
conforms with the requirement of law but
while considering the validity of a notice
issued under Section 3 of the Act the
same considerations, can not be applied.
As noted earlier, the Act is extraordinary
.in nature. Its provisions permit serious
inroad on the liberty of a citizen as the
provisions permit externment of a citizen
without a judicial trial.

7. Ultimately following the earlier
ratio of the judgement in 1972 ALJ 762
(Harsh Narain Vs. District Magistrate)
the Full Bench held that executive must
strictly comply with the provisions of the
Act. Therefore, if a notice issued under
Section 3 (1) of the Act is not in
accordance with the provisions of the Act
and if it fails to comply with the
mandatory requirements of setting out
"general
natural
of
material
allegations", further proceedings initiated
in pursuance of that notice would also be
rendered illegal. It was further held that
the impugned notice issued to the
petitioner is fatal to the proceedings taken
against him as it failed to comply with the
mandatory provisions under the aforesaid
section of the Act.

8. The point again arose from the
Full Bench of three Judges, as aforesaid,
to a Full Bench of five Judges as reported
in 1999 (2) JIC 192 (AII) (FB) (Bhim
Sain Tyagi Vs. State of U.P. through
D.M. Mahamaya Nagar).It was held
therein that it may be useful to mention
that the right of the petitioners to offer
explanation would have to depend upon
the material allegations consequently, the
reasonably opportunity which is afforded
by Sub-section (2) of producing his
evidence in support of his explanation,
which is guaranteed to the petitioner,
should not be exercised if the petitioner
do not come to know the general natural
of materials allegations against them. In
the administration of criminal law in our
country one comes across two very
important terms (i) charge and (ii)
statement of accused. In fact these two are
fundamental
requirements
of
the
principles of natural justice, which have
to be followed before an accused is
condemned. One would shudder at the
idea that an accused shall have stood
condemned when the charge would only
narrate that there is an F.I.R. against him
registered under Section 302 I.P.C.at a
police station or that in the statement of
the accused only a question is put to him
that an F.I.R. has been lodged against him
under Section 302 I.P.C. in a police
station and that alone held sufficient
compliance of law. For action against a
proposed
Goonda,
the
provisions
contained under Section 3 of the Act,
bereft of the technicalities and broader
legal necessities in a trial of an accused
under the Criminal Procedure Code,
combine not only the "charge" and the
"statement of the accused" but also
requires his "defence evidence". Thus, the
proposed Goonda must get the fullest
opportunity to defend himself. Therefore,
the
general
nature
of
material
allegations must be disclosed to him by
the District Magistrate.

9. However, before closing the
chapter the Full Bench consisting of five
Judges of this High Court held in view of
AIR
1999
SC
22
(Whlrlpool
Corporation Vs. Registrar of Trade
Mark, Mumbal and others) ground of
alternative remedy does not affect the
jurisdiction of the High Court. Ramji
Pandey (supra) is good law. A show
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
cause notice fails to indicate general
nature of material allegations may be
challenged and on that ground quashed
the notice under Article 226 of the
Constitution of India with liberty to the
respondents to issue a fresh notice in
accordance with law.

10. However, in the aforementioned
case in the impugned notice the District
Magistrate has set out matters as required
by Clause (a), (b) and (c) in the prescribed
form. The prescribed form as well as the
impugned notice both, seek to maintain a
distinction between the material allegation
and the matters set out in Clause (a), (b)
and (c).

11. We can not have any doubt nor
we can raise any dispute with regard to
aforesaid two Full Bench judgements of
this High Court consisting of three Judges
in Ramji Pandey (supra), which was
also held good by another five Judge
Bench in Bhim Sain Tyagi (supra). It is
to be remembered that if there is no
material, the individual petitioner has
every right to challenge the notice in the
writ jurisdiction of the Court and there is
no bar to that extent. But if there is some
material, then the notice can not be held
to be defective but will be tested on the
basis of the factual analysis by the
appropriate Magistrate, who called upon
to explain and, therefore, in the cases
where some materials are available,
entertaining writ will be premium to the
illegality at the cost of public law and
order system. It is to be remembered that
protecting the lawful citizens, who are
higher in number in the society, is much
more important than the accused being
lesser in number. It is well known that the
alternative remedy is no bar under Article
226 of the Constitution of India. But it is
also to be remembered that the High
Court in its wisdom controls it on the
basis of the individual cases.

12. On the other hand, Mr. Surendra
Singh, learned Additional Government
Advocate, contended before this Court
that in two Division Bench judgements
reported in 2002 (2) JIC 469 (All) (Gore
Lal Vs. State .of U.P. and others) and
2002 (2) JIC 548 (All) (Rajey @ Raj
Kumar Vs. State of U.P. and others)
this Court held that the above cases are
distinguishable in nature in view of the
Supreme Court judgement reported in
AIR 1996 SC 691= JT 1995 (8) SC 331
(The executive Engineer, Bihar State
Housing Board Vs.Ramesh Kumar
Singh and others). The Division Bench
held that a writ petition against a show
cause notice should not be ordinarily
entertained. It is premature in nature
because a show cause notice by itself does
not give rise to a cause of action, as no
adverse order has yet been passed. In the
concluding
portion
of,
the
said
judgements, it has been held by the
Division Bench that "It is well settled that
writ
jurisdiction
is
discretionary
jurisdiction, and this Court will not
ordinarily exercise its jurisdiction against
a show cause notice. It Is possible that
after considering the reply of the
petitioner
the
authority
may
be
satisfied with his explanation." We have
gone through JT 1995 (8) SC 331
(supra), where the Supreme Court held
that normally writ court should not
entertain the writ petition against a show
cause notice issued by a competent
statutory authority. However, exceptions
are only available when there is a
question of infringement of fundamental
right or the issuance of notice is without
jurisdiction. The Court ultimately held
1 All] Jainendra @ Chhotu Singh V. State of U.P. and others
21
that "in the event of 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 the appropriate cases
by invoking the jurisdiction of Article 226
of the Constitution of India."

13. So far as the five Judges Bench
of the Allahabad High Court in Bhim
Singh Tyagi (supra) is concerned, it has
held that the earlier Allahabad Full Bench
judgement of three Judges is good law. A
show cause notice, which fails to indicate
general nature of material allegations,
may be challenged and quashed on that
ground
under
Article
226
of
the
Constitution of India with liberty to the
respondents always to issue fresh notice
in accordance with law.

14. Therefore, such judgements are
not only reflecting correct analysis of law
but it has binding effect on us. But if the
facts of the question of general nature of
material allegations are indicated or
reflected in the notice, such case or cases
should not be interfered with by the writ
court. It is an admitted position what
would be the general nature of material
allegations, is not defined under the Act.
Dictionarically,
it
is
essential
of
significance. Therefore, if an indication as
regards clause (a), (b) and (c) of subsection (1) of Section (3) of the Act is
given, the same is sufficient for the
purpose of denoting material allegations.
Whenever a person is called without any
purpose, then it can be said that there is
no material for calling. But when
someone is called with some material
whatever vague it is, it cannot be said that
there is no material. It is a well settled by
now that when there is no material, the
Court will interfere, but when there is
some material, the Court will not
interfere. In case of some material, only
the authority, who issued the notice
calling upon a person to give reply for the
purpose of meeting the point of some
material, is able to adjudicate the issue,
failing
which one can invoke the
alternative remedy or remedy under writ
jurisdiction. In none of the cases, we find
that the indications of case crime either
now or before have not been indicated.
Language of the notice may not be the
language like Court, but substantial
indication is there. It ought to be because
in all the cases the notices were served
after the aforesaid Full Bench judgements
but not before. Ramji Pandey (supra)
clearly states that no detail requirement is
necessary. Therefore, the indication of
mind for the purpose of calling is good
enough for the purpose of consideration.
In Whirlpool Corporation (supra) the
Supreme Court did not curtail the power
of the High Court in writ jurisdiction but
given an indication what would be the
cases to be considered by the High Court
under Article 226 of the Constitution of
India in spite of having alternative
remedy, such are as follows:

i)
Violation of principle of natural
justice;
ii) Infringement of any fundamental
right;
iii) Order without jurisdiction;
iv) Vires of the Act, Rules, Regulations,
etc are under challenge.

15. In the present case, neither the
question of jurisdiction nor the question
of vires is challenged. Therefore, no such
case is available hereunder. Hence, either
it will be case of violation of principle of
natural
justice
or
infringement
of
fundamental right. Again violation of
principle of natural justice can not be
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
available here since in accordance with
law the concerned Magistrates have given
reasonable opportunity to the petitioners
for tendering explanation in connection
with the notice. If the reply is given,
either it can be accepted or it can be
rejected. In case it is accepted, then such
petitioners cannot have any grievance. If
it is rejected, either he will approach the
forum of alternative remedy or to the writ
court in the appropriate cases. Hence, the
question of violation of principle of
natural justice is also not applicable in the
case. Therefore, the only other point i.e.
infringement of fundamental right by
issuing such notice is applicable or not, is
to be considered by this Court.

16. In the instant case, at best the
question of personal liberty under Article
21 of the Constitution of India might be
the question. But when the law is
provided to give opportunity to explain, it
means legislature wanted to protect the
personal liberty of a person even when
several criminal cases including heinous
crimes are involved with the individuals,
who have made writ petitions herein. In
2006 (5) SCC 228 (Lt. Governor, NCT
and others Vs. Ved Prakash alias Vedu)
the Supreme Court has categorically held
on several points in the case of
externment
in
the
similarly
placed
situation under, a. different Act i.e. Delhi
Police Act, 1978. The show cause notice
involved therein is quoted hereunder for
the purpose of satisfaction what would be
materials of show cause notice:
"That your movement and acts are
causing and are calculated to cause alarm,
danger and harm to person or property.
There are reasonable grounds to believe
that you engage or likely to engage in the
commission of offence punishable under
Chapters XVI, XVII, XXII I PC. Is it a
fact that you were not involved in a single
isolated incident but indulged in, criminal
activities since 1982 and continued and
dangerous so as to render you being at
large in Delhi or in any part thereof is
hazardous to the community.

That the witnesses are not willing to
come forward to give evidence in public
against you by reasons of apprehension on
their part as regards the safety of their
person or property. There are reasonable
grounds to believe that you are likely to
engage yourself in the commission of
offences like those in para (i) above.

You are likely to be called upon to
explain as to why an order for externment
out of the limits of the National Capital
Territory of Delhi for a period of two
years in accordance with the provisions of
Section 47 of the Delhi Police Act, 1978
be not passed against you."

17. The show cause notices
challenged hereunder issued for the
purpose of externment etc. of Goonda
under the Uttar Pradesh Control of
Goondas Act, 1970 are para materia with
such notice. Therefore, that can be a
model of notice giving general nature of
material
allegations.
However,
the
Supreme Court proceeded further on the
basis of the reply in connection with the
show cause and the order therein. Even
from there various other materials can
come out to enlighten the issue. The
satisfaction of the authority although
primarily subjective, should be based on
objectivity. But sufficiency of material
as such may not be gone into by the
writ court unless it is found that in
passing
the
Impugned
order
the
authority has failed to take into
consideration the relevant facts or had
1 All] Jainendra @ Chhotu Singh V. State of U.P. and others
23
based its decision on Irrelevant factors
not germane therefor. Mere possibility
of another view may not be a ground
for interference. The High Court and
the Supreme Court would undoubtedly
jealously guard the fundamental rights
of a citizen. While exercising the
Jurisdiction rested in them invariably,
the courts would make all attempts to
uphold
the
human
rights
of
a
proceedee.
The
fundamental
right
under Article 21 of the Constitution of
India
undoubtedly
must
be
safeguarded. But there the statute and the
precedents were considered to satisfy the
cause when an order was passed in
compliance of the notice and reply.
However, the Supreme Court further held
that the Court must remind itself that the
law is not a mere logic but is required to
be applied on the basis of its experience.
Experience says that as against the show
cause a person has every right to give
reply saying that the materials are not
sufficient for the purpose of calling. It is
within the domain of the District.
Magistrate to consider all aspects of the
matter and give his opinion. Reasonable
opportunity of tendering an explanation is
not
bare
opportunity.
The
person
concerned will have. a right to consult and
defend the cause by a counsel of his
choice and have an opportunity of
examining as well as examining any other
witnesses as he wishes to produce in
support of his explanation, unless for the
reasons to be recorded in writing the
District Magistrate is of opinion that the
request is made for the purpose of
vexation or delay. Apart from that, as per
Section 6 of the Act any person aggrieved
by an order made under Section 3,4or 5
may appeal to the Commissioner within
fifteen days from the date of the order.
The appellant or his counsel will be
entitled to inspect the record which was
not disclosed to him at the inquiry, if any,
held under Section 3. The Commissioner
may either confirm the order, with or
without modification, or set it aside, and
may, pending disposal of the appeal, stay
the operation of the order subject to such
terms, if any, as. He thinks fit. Therefore,
the Act is well guided unless, of course,
factual situation like Ramji Pandey
(supra) arose. In fact both the Full Bench
and the Supreme Court discouraged
formal service of notice under Section 3
of the Act. The notice will be backed by
some materials, which can indicate the
criminal activities. Only by virtue of such
notice the right of individuals will not
adversely affect nor the right under
Article 21 of the Constitution of -India
will be infringed. It will be infringed only
when no indications are given in. the
notice in respect of Clause (a), (b) and (c)
of Section 3 (1) of the Act or it is not
referred. If it is indicated, sufficiency as
regards general materials are complied
with. Now, it is for the persons, who got
the notice, to give reply contradicting
such reference and proceed with the
matter. Therefore, we can, not justify the
cause of interference with the show cause
notice. This order is passed not only in
conformity with the aforesaid Full Bench
judgements ratio of this High Court but
also on the sufficiency of materials in the
notice.

18. Out of the bunch cases if any
writ petition is filed on-the part of the
complainant to take cognizance by the
District Magistrate, the same can be filed
before the District Magistrate itself within
the fore-corners of the Act for the purpose
of taking steps. There is no necessity of
interference of the writ court in this
regard.
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
19. In case any order is passed
following the notice and reply and the
parties feel aggrieved, they can file an
appeal under Section 6 of the Act.
Therefore, in that case also, no order can
be passed by this Court. If any body
wants to get the appeal expedited, he can
also make prayer before the appropriate
authority to such extent.

20. Hence, in view of the above
observations, the writ petition stands
dismissed. Interim orders, if any, stand
vacated.

However, no order is passed as to
costs.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2006

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 13177 of 2006

Sansveer

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Sri M.K. Srivastava

Counsel for the Opp. Parties:
A.G.A.

Code of Criminal Procedure-Section 190
(1)(b)-Power
of
Magistrate
after
receiving the final report-either drop the
proceeding agreeing with conclusion
investigation or take cognigence u/s 190
(1)(b) issue process straight way or may
order for further investigation or can
take
congnigence
upon
original
complaint or protect petition.

Held: Para 4
It is settled law that whenever final
report is submitted by the police for
dropping
the
proceeding
following
courses are open to the Magistrate and
he may adopt any of the fact as the facts
and circumstances of the case, may
require:-

(I) He
may
agreeing
with
the
conclusions arrived at by the police,
accept the report and drop the
proceedings. But before so doing, he
shall give an opportunity of hearing,
he shall give an opportunity of
hearing to the complainant;
(II) He may take cognizance under
Section 190(1)(b) and issue process
straight
away
to
the
accused
without
being
bound
by
the
conclusions
of
the
investigating
agency, where he is satisfied that
upon
the
facts
discovered
or
unearthed by the police, there is
sufficient ground to proceed;
(III) he may order further investigation,
if
he
is
satisfied
that
the
investigation
was
made
in
a
perfunctory manner; or
(IV) he may, without issuing process or
dropping the proceedings decide to
take
cognizance
under
Section
190(1)(a)
upon
the
original
complaint
or
protest
petition
treating the same as complaint and
proceed to act under Sections 200
and 202 Cr.P.C. and thereafter
decide whether complaint should be
dismissed or process should be
issued."

2001 (43) ACC-1096
2000 (56) ACC-113
2006 (55) ACC-1
2006 Cr.L.J.-2602

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.)

1.

Heard
Sri
Manoj
Kumar
Srivastava,
learned
counsel
for
the
petitioner and learned A.G.A. for the
State.