JUDGMENT :

1. Heard Sri Nipun Singh, learned counsel for the petitioners and learned A.G.A. for the State.

2. Petitioner by the instant petition is seeking quashing of the impugned notices under section 110 of the Code of Criminal Procedure, 1973 (for short ‘Code’) dated 01.07.2019, issued by the third respondent, Sub Divisional Magistrate, Kairana, District Shamli.

3. The conduct of the State-respondent in not cooperating with the present proceeding is writ large, that inspite several opportunities counter affidavit was not filed, accordingly, vide order dated 14.09.2022, the Court was restrained to impose Rs. 10,000/- cost on the State-respondent. Counter affidavit on behalf of the third respondent thereafter has been filed.

4. The thrust of the argument of learned counsel for the petitioner rests on two assertions, viz. that the notice under Section 110 of the Code is in violation of the principle of natural justice as no show cause was issued prior to issuing of the impugned notice cum order. Further, proceedings under Section 110 of the Code was initiated on the strength of a solitary case being Case Crime No. 52 of 2019, under section 3/4 Prevention of Damage to Public Property Act, 1984. That single case would not make the petitioners habitual offender.

5. The assertions made in paragraphs 13 and 19 of the writ petition reads thus:

“13. That impugned order/notice under section 11 of Cr.P.C. is in violation of principle of natural justice and therefore the impugned notice dated 01.07.2019 deserves to be quashed. The impugned order is based on solitary report of Station House Officer, police Station Jhinjhana, District Shamli dated 08.06.2019 without applying any mind.

19. That section 110 of Cr.P.C. applies only to habitual offenders, which means the consistent in committing offence, therefore on a solitary case no order could be passed under section 110 of Cr.P.C. the same is meant for habitual offender.”

6. Learned A.G.A. on instructions, submits that charge sheet has been filed in the aforenoted criminal case.

7. The reply to the aforesaid paragraphs has been given in paragraphs 18 and 20 of the counter affidavit, wherein, there is no denial that the mandate of Section 110 of the Code was not complied by issuing a show cause notice, further, it is submitted that on a single case provisions of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1988 (for short ‘Gangster Act’) is attracted. Paragraph 18 and 20 is extracted:

“18. That, the contents of paragraphs No. 12, 13 and 14 of the writ petition as stated are wrong and incorrect hence denied. In reply thereto, it is submitted that the local police who are well familiar with the activities of their territorial limit who submitted the adverse report against the petitioners holding that due to fear of the petitioners no one dare to make complaint against them and therefore, the then Sub Divisional Magistrate rightly issued the notice under section 110 of Cr.P.C. Moreover, on the application of the petitioners the then Sub Divisional Magistrate further directed for enquiry and the report filed by the Revenue Authority were found against the petitioners and therefore, the notice under section 110 of Cr.P.C. does not suffer from any illegality or infirmity.

20. That, the contents of paragraphs No. 16, 17, 18, 19 and 20 of the writ petition as stated are not admitted hence denied. In reply thereto it is submitted that this Hon’ble Court as well as the Hon’ble Apex Court have constantly held in catena of cases that even on the basis of only one case crime the provisions of Gangsters Act is attracted and in view of the above, the order under section 110 of Cr.P.C. is just and proper.”

8. Section 110 of the Code mandates security for good behaviour from habitual offenders. It appears that where the Executive Magistrate receives information that there is within his local jurisdiction a person who is habitual of committing offence, the Magistrate, in the manner provided, r