# Lalta Prasad Dubey v. The Director General of Police, U.P. and others - **Citation:** (2001) 1 ILRA 285 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2001 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-prasad-dubey-v-the-director-general-of-police-u-p-and-others-39618 - **Pages:** 3 ## Text 1All] Lalta Prasad Dubey V. The Director General of Police, U.P. and others 285 obligatory to issue notice to the petitioner under sub-section (1) of section 3 of the Act informing him of the general nature of the material allegations against him and giving him a reasonable opportunity of tendering an explanation regarding them. The averments in the writ petition and also the contents of the order clearly show that no notice was issued to the petitioner and he was not afforded any opportunity of tendering an explanation. 'Goonda' has been defined in sub-section (b) of section 2 of the Act. There is no finding that the petitioner comes within the expression 'Goonda' as provided under the Act. No proceeding under the Act can be initiated against a person simply on the basis of a report by the S.H.O. that he is likely to create disturbance in the election. The power under the Act can be exercised on the basis of objective consideration of evidence and material and no on the basis of a report made by S.H.O. which itself is based upon his subjective satisfaction. Therefore, the impugned order is not only illegal but also wholly without jurisdiction and cannot be sustained at all. 4. Learned A.G.A. has submitted that against an externment order passed under sub-section (3) of section 3 of the Act, an appeal lies to the Commissioner under section 6 and, therefore, this writ petition is liable to be dismissed on the ground of alternative remedy. The principle requiring exhaustion of statutory remedies before the writ will be granted is a rule of convenience, discretion and policy and not a rule of law. There are also exceptions to such a principle. If the authority against whom the writ is sought is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation, a writ can be issued in an appropriate case. Similarly, if the order impugned violates the fundamental right or if the same has been passed in violation of principles of natural justice, this Court will not hesitate to entertain a writ petition. In the present case, the impugned order has been passed in complete violation of principles of natural justice and also in complete violation of the procedure prescribed under the Act. The A.D.M. seems to have been in complete misapprehension about his authority and was dealing with the case as if it related to a matter pertaining to preventive detention where the order can be passed on the subjective satisfaction of the detaining authority. In our opinion this is a most appropriate case where this Court must interfere and exercise its power under Article 226 of the Constitution. 5. In the result, the writ petition succeeds and is hereby allowed. The impugned order dated 18.11.2000 of Additional District Magistrate (Finance & Revenue), Baghpat, externing the petitioner from the limits of the district is quashed. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &5,0,1$/ 6,'( &5,0,1$/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( *3 0$7+85 - 7+( +21·%/( *3 0$7+85 - 7+( +21·%/( 86 75,3$7+, - 7+( +21·%/( 86 75,3$7+, - &ULPLQDO 0LVF :ULW 3HWLWLRQ 1R RI 6UL /DOWD 3UDVDG 'XEH\ «3HWLWLRQHU 9HUVXV 7KH 'LUHFWRU *HQHUDO RI 3ROLFH 83 /XFNQRZ DQG RWKHUV «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y the Court 1. This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued directing the Superintendent of Police, Jaunpur to comply with the order dated 10.5.2000 passed by the learned IIIrd Addl. Sessions Judge, Jaunpur in S.T. No.340 of 1998. 2. We have heard learned counsel for the petitioner, learned A.G.A. for the State and have perused the record. 3. It is averred in the writ petition that an incident took place in which three persons including the nephew of the petitioner were murdered. After investigation, charge sheet was submitted against the accused and in due course, the case was committed to the Court of Sessions for trial. The trial has been registered as S.T. no.340 of 1998 and is pending in the court of learned IIIrd Addl. Sessions Judge, Jaunpur. The petitioner is an eye witness of the aforesaid case. It is also averred in the writ petition that the accused are hardened criminals and they are extending threats to the petitioner not to appear as a witness in court. It is further averred that threats have been extended to some other eye witnesses as well. The record shows that the petitioner moved an application before the learned IIIrd Addl. Sessions Judge, Jaunpur on 10.5.2000 stating that he was receiving threats to his life and therefore security may be provided to him. The learned IIIrd Addl. Sessions Judge passed order on the same day directing the Superintendent of Police, Jaunpur to provide security to the petitioner as he had received threats and he needed protection both at home and while coming to court for purpose of giving evidence. The D.G.C. (Criminal), Jaunpur had also written to Superintendent of Police informing him about the order passed by the court. The grievance of the petitioner is that inspite of clear direction by the learned IIIrd Addl. Sessions Judge, no security has been provided to the petitioner so far. 4. The State Government has issued a G.O. bearing no.376 Chha dated 19.2.96 laying down the conditions under which security shall be provided at the State expense. Para 7 of the G.O. lays down that security shall be provided for a limited period to a person who is doing pairvi of a case in which his relation has been murdered. The same para also provides for giving security to 1All] D.K. Joshi V. The State of U.P. and others 287 prosecution witnesses. The petitioner is an eye witness of the incident and he happens to be real uncle of one of the deceased. On facts, the case is entirely covered by para 7 of the G.O. It is averred in para 8 of the writ petition that Superintendent of Police, Jaunpur has not complied with the order passed by the learned IIIrd Addl. Sessions Judge on account of some oblique motive. Certain allegations have also been made against the Superintendent of Police but we do not want to go into that question. In view of the fact that the case of petitioner is covered by para 7 of the G.O. and also that there is direction given by the learned IIIrd Addl. Sessions Judge, the Superintendent of Police, Jaunpur ought to have provided security to the petitioner. The inaction of the authority in not providing security to the petitioner in the facts and circumstances of the case, is not justified. 5. The record shows that the petitioner has filed a transfer application in this Court being Criminal Misc. (Transfer) Application no.310 of 2000 seeking transfer of the case from Jaunpur to some other place on the same ground namely that there is apprehension to the life of the petitioner. Sri Ranjit Saxena learned counsel for the petitioner has given an undertaking that in view of the order which we propose to pass in the present writ petition, the petitioner will get the transfer application dismissed so that the trial may proceed. 6. The writ petition is accordingly, allowed. A writ mandamus is issued commanding the respondents nos. 1,2,4,5 and 6 to provide two armed guards to the petitioner for his security till the prosecution evidence in S.T. no.340 of 1998 pending in the court of learned IIIrd Addl. Sessions Judge, Jaunpur is concluded. 7. Office is directed to place a copy of this order on the record of Criminal Misc. (Transfer) Application no.310 of 2000. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '(&(0%(5 '$7(' $//$+$%$' '(&(0%(5 %()25( %()25( 7+( +21·%/( %,12' .80$5 52< - 7+( +21·%/( %,12' .80$5 52< - 7+( +21·%/( $. <2* - 7+( +21·%/( $. <2* - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI '. -RVKL «3HWLWLRQHU 9HUVXV 7KH 6WDWH RI 83 2WKHUV«5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL 81 6KDUPD 6KUL 6XQHHW .XPDU &RXQVHO IRU WKH 5HVSRQGHQWV 6KUL 6DEKDMHHW