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

- **Citation:** (2021) 1 ILRA 612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-04
- **Case number:** Misc. Bench No. 24256 of 2020
- **Bench:** Rajan Roy, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kareem-v-state-of-u-p-ors-46784
- **Pages:** 7

## Headnote

(A) Criminal Law - U.P. Control of Goondas
Act, 1970: Section 2(b)(i), 3(1)Practice &
Procedure - - The petition is directed against a
notice and the petitioner will have a reasonable
opportunity to defend himself in terms of
Section 3(1) and sub-section 2 thereof, there is
no reason for the Court to interfere in the
matter at this stage. (Para 12)

Writ Petition Disposed of. (E-8)

List of Cases cited :-

## Text

612 INDIAN LAW REPORTS ALLAHABAD SERIES
scheme of the relevant Acts, Rules and
Orders referred hereinabove does not
support it and in view of the valid
distinction
between
them
and
the
recognized political parties, we do not find
it to be acceptable. As per scheme of the
Act, 1951, the Rules, 1961 and especially
the Symbols Order, 1968, reservation of
symbols is only for recognized political
parties whereas allotment of symbols is for
all
political
parties,
recognized
or
unrecognized and even for independent
candidates.

59. In view of the aforesaid, the
unrecognized
political
parties
and
independent candidates as they are distinct
from recognized political parties and there
is a valid rational criteria for such
distinction, therefore, the contention of the
petitioner that the Election Commission of
India is acting in a discriminatory and
arbitrary manner is not tenable in law.
Moreover, this is Public Interest Litigation
but there is nothing to show that the interest
of the masses or the public at large is in any
manner adversely affected by the questions
raised in the petition.

60. For all these reasons, this Writ
Petition fails and is dismissed.
----------
(2021)01ILR A612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.01.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 24256 of 2020

Kareem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Anurag Singh

Counsel for the Respondents:
G.A.

(A) Criminal Law - U.P. Control of Goondas
Act, 1970: Section 2(b)(i), 3(1)Practice &
Procedure - - The petition is directed against a
notice and the petitioner will have a reasonable
opportunity to defend himself in terms of
Section 3(1) and sub-section 2 thereof, there is
no reason for the Court to interfere in the
matter at this stage. (Para 12)

Writ Petition Disposed of. (E-8)

List of Cases cited :-

1. Suresh Tewari Vs St. of U.P. & ors. Writ
Petition No. 12459 (M/B) of 2018

2. Vijay Narain Singh Vs St. of Bihar & ors.
(1984) 3 SCC 14

3. Ballabh Chaubey Vs A.D.M. (Finance),
Mathura & anr. Criminal Misc. Writ Petition No.
2954 of 1996 ; 1997 A. Cr. R. 387 (1997 ALJ
1630)

4. Additional Secretary to Government of India
Vs Smt. Alka Subhash Gadia JT (1991) 1 SC
549

5. Raja Sukhnandan Vs State AIR 1972 ALL 498

6. Kabir Chawla Vs St. of U.P. 1994 SCC (Cri.)
577

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Mrs. Saroj Yadav, J.)

1. Heard Sri Anurag Singh, learned
counsel for petitioner and Shri S.P. Singh,
learned A.G.A.

2. This writ petition has been filed
under Article 226 of the Constitution of
India seeking a writ in the nature of
certiorari quashing a notice dated
1 All. Kareem Vs. State of U.P. & Ors.
613
18.03.2020
issued
by
the
District
Magistrate, Sitapur under Section 3(1) of
the U.P. Control of Goondas Act, 1970. He
has also sought a writ of mandamus
directing the opposite party no. 3 and 4 not
to harass the petitioner in pursuance to the
aforesaid notice, which is impugned herein.

3. The contention of learned counsel
for petitioner Sri Anurag Singh is that the
notice has been issued on the basis of a
single criminal case, whereas, Section
2(b)(i) defines 'Goonda' to mean a person
who either by himself or as member or
leader of a gang, habitually commits or
attempts
to
commit,
or
abates
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, or Chapter XXII of the said
code. The lodging of a single criminal case
against the petitioner does not make him, a
person, who habitually commits any
aforesaid offence. In this regard he relies
upon a judgment of this Court dated
23.05.2018 rendered in Writ Petition No.
12459 (M/B) of 2018; Suresh Tewari Vs.
State of U.P. and Ors. He also relies upon
an interim order passed by this Court on
22.09.2020 in Writ Petition No. 14688
(M/B)
of
2020
wherein
this
Court
interfered at the interim stage on the ground
that a single criminal case would not make
the person a Goonda under Section 2(b)(i)
as it would not be proof of the fact that he
is habitual of committing an offence
referred in the said provision. It is also the
contention of learned counsel for petitioner
that in the single F.I.R. lodged against the
petitioner there were five accused but only
the petitioner and one other person,
namely, Sahabuddin have been proceeded
under the Goondas Act. He informed that
petition of Sri Sahabuddin is pending, but,
there is no interim protection therein.

4. We have perused the judgment
dated 23.05.2018 as also the interim order
dated 22.09.2020. We have also perused
the record and we find that petition is
directed against a notice under Section 3(1)
of the U.P. Control of Goondas Act, 1970.
Section 3(1) of the said Act pertains to
Externment, etc. of Goondas. It requires the
District Magistrate, on the satisfaction of
the eventualities mentioned in Clause (a),
(b) and (c) of Sub-section 1 of Section 3, to
inform the person concerned by notice in
writing of the general nature of the material
allegation against him in respect of Clause
(a), (b) and (c) and give him reasonable
opportunity of tendering an explanation
regarding them.

5. Sub-section 2 of Section 3 goes on
to state the rights of the person, against
whom an order under the said section is
proposed to be passed, to consult and be
defended by a counsel and also to have a
reasonable
opportunity
of
examining
himself or any other witness 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.
Thereafter, the District Magistrate, on
being satisfied that the conditions specified
in Clause (a), (b) and (c) of Sub-section 1
exists, may by order in writing take the
actions contemplated in Clause (a) and (b)
of Section 3(3) of the Act, 1970 for
externment etc.

6. Now, in the present case as of now
no order has been passed under Section 3
of the Act, 1970. All that has been by the
District Magistrate is to issue a notice to
petitioner under Section 3(1). In response
to which, the petitioner shall have the rights
as mentioned in the said sub-section as also
614 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-section
2
and
only
after
such
opportunity the final order, if at all, would
be passed under Sub-section 3 of Section 3
of the Act, 1970.

7. 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'.

8. 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.

9. 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 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 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
1 All. Kareem Vs. State of U.P. & Ors.
615
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
self-imposed 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 selfevolved 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 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. Bapna 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
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
616 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

10. The writ petitions were dismissed
on the ground of availability of efficacious
alternative remedy. As would be evident
from a reading of the judgment, the
Division Bench relied upon the decision of
the Supreme Court reported in JT 1991 (1)
SC
549;
Additional
Secretary
to
Government of India Vs. Smt. Alka
Subhash Gadia. It also relied upon AIR
1972 All 498; Raja Sukhnandan Vs. State
which is a judgment of this very Court. It
also relied upon a judgment reported in
1994 SCC (Cri.) 577; Kabir Chawla Vs.
State of U.P., wherein the validity of notice
under Section (3) of the Goondas Act, 1970
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 ceased of the
1 All. Kareem Vs. State of U.P. & Ors.
617
matter. The Division Bench also noticed
that all those cases which were cited before
it in support of petitioner's contention, were
those where the validity of notice had been
seen by the Courts in Appeal against final
order of externment. The relevant extract of
the judgment in the case of Kabir Chawla
(supra) is quoted hereinbelow:-

"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
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."

11. Thereafter Hon'ble the Supreme
Court proceeded to consider the other
grievance of the petitioner before it
regarding preventive detention on the
basis of an order passed by this District
Magistrate which was a different issue.

12.

In
view
of
the
above,
considering the fact that the petition is
directed
against
a notice
and
the
petitioner
will
have
reasonable
opportunity to defend himself in terms
of Section 3(1) and Sub-section 2
thereof, there is no reason for this Court
to interfere in the matter at this stage.
The only reason we are not delving at
length on the object of the Act, 1970 the
scheme of the purpose sought to be
achieved by it is that it might prejudice
the petitioner in his defence before the
District Magistrate, therefore, leaving it
open for the petitioner to respond to the
notice before the District Magistrate and
to avail all the rights under Sub-section
1 and 2 of Section 3 before the District
Magistrate., we are not inclined to
interfere with the impugned notice.

13. We however make it clear that
the District Magistrate while considering
the response and granting reasonable
opportunity to the petitioner shall not
pay lip service to the provisions of the
Act, 1970, so far as they grant right to
the petitioner to defend his case and
shall not act with a predetermined and
mechanical mind but shall apply his
mind duly, properly, objectively and
effectively to the facts of the case and
the material available before him before
deciding as to whether any of the actions
as contemplated under Sub-section 3 of
Section 3 of the Act, 1970 are required
to be taken or not.

14.

Subject
to
aforesaid
observations,
the
writ
petition
is
disposed of without prejudice to the
rights of the petitioner as aforesaid,
without interfering with the impugned
notice.
----------
618 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE CHANDRA DHARI SINGH, J.

Misc. Bench No. 24492 of 2020

Waseem Haider ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Muballi Gussalam

Counsel for the Respondents:
G.A.

(A) Criminal Law- Code of Criminal
Procedure,1973 - Section 154, 156, 190,
200 -ractice & Procedure - Alternative
remedies to FIR - Writ of mandamus to
compel the police to perform its statutory
duty under Section 154 Cr.P.C. can be denied
to the informant/victim for non-availing of
alternative remedy under Sections 154(3),
156(3), 190 and 200 Cr.P.C., unless the four
exceptions enumerated in the decision of the
Apex
Court
in
the
case
of
Whirlpool
Corporation Vs Registrar of Trade Marks
(1998) 8 SCC 1, come to rescue of the
informant/victim. .(Para 45)

The verdict of Apex Court in the case of Lalita
Kumari Vs Government of U.P. & Ors. (2014)
2 SCC 1 does not pertain to issue of
entitlement
to
writ
of
mandamus
for
compelling the police to perform statutory
duty under Section 154 Cr.P.C. without
availing alternative remedy under Section
154(3), 156(3), 190 and 200 Cr.P.C. .(Para
45)

The informant/victim after furnishing first
information regarding cognizable offence
does not become functus officio for seeking
writ of mandamus for compelling the police
authorities to perform their statutory duty
under Section 154 Cr.P.C. in the case the FIR
is not lodged. (Para 45)

The proposed accused against whom First
information of commission of cognizable
offence is made, is not a necessary party to
be impleaded in a petition under Article 226
of the Constitution of India seeking issuance
of writ of mandamus to compel the police to
perform their statutory duty under Section
154 Cr.P.C.(Para 45)

(B) Writs - Constitution of India - The
power to issue writ of mandamus has its own
well defined self-imposed limitations, one of
which is availability of alternative efficacious
remedy on the basis of which the Writ Court
can deny issuance of the said writ. (Para 17)

Writ Petition Rejected. (E-8)

List of Cases cited :-

1. Lalita Kumari Vs Govt. of U.P. & ors. (2014)
2 SCC 1

2. Whirlpool Corporation Vs Registrar of Trade
Marks (1998) 8 SCC 1

3. Abhinandan Jha Vs Dinesh Mishra (1967) 3
SCR 668

4. H.N. Rishbud & Inder Singh Vs St. of Delhi
(1955) 1 SCR 1150

5. Sevi Vs St. of T.N. 1981 Supp SCC 43

6. Sakiri Vasu Vs State of U.P. & ors. (2008) 2
SCC 409

7. Aleque Padamsee & ors. Vs U.O.I. & ors.
(2007) 6 SCC 171

8. Sudhir Bhaskar Rao Tambe Vs Hemant
Yashwant Dhage & ors. (2016) 6 SCC 277

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. This writ petition has been filed by
the petitioner Waseem Haider seeking