Allahabad High Court
Km Kajal Jha vs State Of U.P. on 21 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:182971 Court No. - 82 Case :- CRIMINAL APPEAL No. - 10858 of 2024 Appellant :- Km Kajal Jha Respondent :- State of U.P. Counsel for Appellant :- Anurag Sharma Counsel for Respondent :- G.A. Hon'ble Nalin Kumar Srivastava,J.
1. This criminal appeal under Section 86 Cr.P.C. has been preferred by the appellant being aggrieved with the order dated 07.10.2024 passed by Special Judge (Gangster Act) / Additional District & Sessions Judge, Court No.6, Gautam Budh Nagar (for short 'the trial court' hereinafter) in Case Crime No.02 of 2024 (State Vs. Kajal Jha) under Sections 2b(i), 2b(iii), 2b(iv), 2b(viii), 2b(xi), 2b(xii), 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the Gangsters Act'), Police Station Beta 2, District Gautam Budh Nagar, whereby the property release application moved by the applicant/appellant was rejected by the trial court.
2. Heard Sri Anurag Sharma, learned counsel for the appellant, Sri P.K. Giri, learned Additional Advocate General assisted by Sri J.K. Upadhyay, learned A.G.A.-I for the State and perused the record.
3. Learned counsel for the appellant has submitted that in Case Crime No.02 of 2024, the present appellant is one of the accused. She had gone to Bangkok on 02.01.2024 and in her absence, the F.I.R. in the aforesaid case was lodged at Police Station Beta 2, District Gautam Budh Nagar and as a matter of fact, she has absolutely no information of the said case and that is why she did not surrender before the Court in the aforesaid case, but the Court proceeded against her and she was declared absconder and proceedings under Sections 82 and 83 Cr.P.C. were brought into action and her moveable properties were attached by the Court. Subsequently she was arrested by the police and now she has been released on bail by this Hon'ble Court. It is further submitted that the application for release of the attached moveable properties moved by the appellant was rejected by the court concerned by passing the impugned order only on the ground that the properties shown at Serial No.1 to 43 in the application for release under Section 83 Cr.P.C. have already been made subject matter of the case under Section 14 (1) of the Gangsters Act and the Investigating Officer has already sent request letter to the Police Commissioner, Gautam Budh Nagar for the attachment of the said properties under the provisions of the Gangsters Act. On the basis of the said analogy, the learned trial court rejected the application moved by the appellant for the release of her attached moveable properties.
4. Learned counsel for the appellant further submitted that the aforesaid order passed by the learned trial court is not sustainable under law since the appellant, who had been declared absconder by the Court for the reason of her absconding and her moveable properties were sold, was already arrested by the police and had been taken into judicial custody and subsequently was released on bail, therefore, there was no occasion for the trial court to keep her properties attached to secure her appearance before the Court. After the appearance of the appellant before the Court, there was no justification to keep her properties attached by the Court.
5. Another limb of argument is that if any attachment order has been passed under Section 14 (1) of the Gangsters Act, this is an order passed in a separate proceedings which is never binding upon the Court in another proceeding wherein the present release application was moved.
6. In support of his contention, emphasis has been laid down by the learned counsel for the appellant on a decision of Hon'ble Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283 and a prayer to set-aside the impugned order has been made.
7. Per contra, learned State Counsel vehemently opposed the prayer of the appellant and it has been submitted that the impugned order passed by the learned trial court is an illegal order since a request letter was already moved by the Investigating Officer of the case to the Police Commissioner, Gautam Budh Nagar under Section 14 (1) of the Gangsters Act for the attachment of the moveable properties of the appellant. Thus, there was no justification to release the same pending aforesaid proceedings and further a request has been made for the dismissal of the present appeal.
8. The relevant provisions embodied in the Cr.P.C. have to be perused before proceed further which are extracted as below.
9. Section 82 of the Criminal Procedure Code provides as under :
"82. Proclamation for person absconding. - (i) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) ...........................................
(3) .............................................
(4) ..............................................
(5) ................................................"
10. Further, Section 83 of the Code of Criminal Procedure provides as under :
"83. Attachment of property of person absconding. - (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person :
(2) ...............................................
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made -(a) by seizure; or (b) by the appointment of a receiver; or -(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or (d) by all or any two of such methods, as the Court thinks fit.
(4) .....................................................
(5) .......................................................
(6) ........................................................."
11. Further, the provision for the release, sale and restoration of attached property is embodied under Section 85 of the Criminal Procedure Code, which is extracted as below :
"85. Release, sale and restoration of attached property. - (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) .................................................
(3) .................................................."
12. The provision for appeal has been provided under Section 86 of the Cr.P.C. and the contents thereof are given hereinbelow :
"86. Appeal from order rejecting application for restoration of attached property. - Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of first-mentioned Court."
13. From the perusal of the impugned order, this Court finds an admitted fact that the accused-appellant who was declared absconder by the Court and whose property was attached under the Orders of the Court, subsequently was brought before the Court by the Police and sent to jail. There is nothing in the impugned order to show that the absconder was brought / appeared before the Court after the time specified in the proclamation issued by the police was lapsed. The absconder primarily means a person who tries to hide and when with an object to evade the process of law he remains hiding from the place of his residence, he is called an absconder, but at the same time the moment he appears or is brought before the Court and is taken into custody, he is no more an absconder and that is the reason Section 85 of the Code of Criminal Procedure makes a provision that on appearance of a proclaimed person before the Court, the Court shall make an order releasing the property from the attachment. Hence, the appellant who ceased to be an absconder after her appearance before the Court within the ambit of law, was entitled for the release of her property.
14. The reason for rejection of her release application mentioned by the learned trial court in the impugned order is that under the provisions of Gangsters Act, a request letter has already been sent by the Investigating Officer of that case for the attachment of the property of the present appellant to the Commissioner of Police, Gautam Budh Nagar. It was fairly conceded by the learned State Counsel that the said request letter has been moved by the Police subsequent to the passing of the impugned order. Hence, it is an admitted fact that at the time of passing of the impugned order by the learned trial court, although a request letter was sent by the Police to the Commissioner of Police, Gautam Budh Nagar for the attachment of the property of the appellant, but the order thereon was passed subsequent to the passing of the impugned order. Hence, mere pendency of the request letter made under the provisions of the Gangsters Act before the Police Commissioner, Gautam Budh Nagar does not debar the appellant to press her application for release of her attached property and secondly, the proceedings under Section 83 Cr.P.C. and under Section 14 (1) of the Gangsters Act are different and work in different spheres. Even if some proceeding was initiated against the property of the appellant under the provisions of Gangsters Act, it was a separate proceeding and was not concerned with the power of the Court in connection with the attachment of the property of a proclaimed offender under Section 83 Cr.P.C.
15. In view of the aforesaid facts and circumstances of the case, arguments advanced by the learned counsel for the parties and keeping in view the law laid down by the Hon'ble Apex Court as well as in view of the above discussions, this Court is of the view that the present Appeal is liable to be allowed and the impugned order is liable to be set-aside.
16. Accordingly, the Appeal is allowed and the impugned order dated 07.10.2024 passed by Special Judge (Gangster Act) / Additional District & Sessions Judge, Court No.6, Gautam Budh Nagar in Case Crime No.02 of 2024 (State Vs. Kajal Jha) under Sections 2b(i), 2b(iii), 2b(iv), 2b(viii), 2b(xi), 2b(xii), 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, Police Station Beta 2, District Gautam Budh Nagar, whereby the application for release of property moved by the applicant/appellant was rejected by the said court, is hereby set-aside. The court concerned / appropriate authorities are directed to release the goods/articles of the appellant attached in pursuance of order issued under Section 83 Cr.P.C. forthwith.
Order Date :- 21.11.2024 ss