Allahabad High Court
Vikash Yadav vs State Of U.P. And 3 Others on 30 March, 2022
Bench: Ashwani Kumar Mishra, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- CRIMINAL MISC. WRIT PETITION No. - 3192 of 2022 Petitioner :- Vikash Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shivam Shukla,Rahul Srivastava Counsel for Respondent :- G.A Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Rajnish Kumar,J.
1. This Writ Petition has been filed under Article 226 of the Constitution of India challenging the orders dated 10.9.2021 and 9.12.2021, passed by the District Magistrate, Azamgarh in case No. 630 of 2021 (Computer Case No. 0202115090000630) State Vs. Vikas Yadav alias Guddu under Section 14 (1) of the Uttar Pradesh Gangsters and Anti Social Activities ( Prevention) Act, 1986 ( hereinafter referred to as the 'Act of 1986') whereby petitioner's representation for release of his vehicle ( Truck bearing registration number UP 61AT 2942) attached under Section 14 of the Act of 1986, has been rejected.
2. Arguments are advanced on behalf of petitioner to submit that the District Magistrate has failed to take note of relevant materials on record and the scheme of the Act has not been correctly applied. It is also urged that application of mind on part of the District Magistrate is lacking which renders the orders impugned otherwise wholly arbitrary. Reliance is placed upon judgments of this Court in Badan Singh Vs. State of U.P. and others, 2001 (43) ACC as also in Afzal Begum Vs. State of U.P. 2012 (1) ACR 456 to submit that the orders impugned are liable to be quashed.
3. Learned A.G.A., on the other hand, opposes the prayer made in the writ petition, primarily on the ground that the petition is not maintainable, at this stage, inasmuch as the factual inquiry contemplated by the Court is yet to be undertaken and the petitioner has otherwise not exhausted the remedies available to him as per the Act of 1986. Attention of the Court has been invited to Sections 14 to 18 of the Act of 1986 in order to submit that after attachment of property is made and representation against it is rejected (as is the case here) the person aggrieved i.e. petitioner herein, has the remedy available under the Act of 1986 to approach the Court hearing cases arising out of the Act of 1986, for an appropriate order in the matter, on the basis of enquiry conducted in the matter on the issue as to whether the property in question is acquired by a gangster, from the proceeds of crime triable under the Act of 1986, or not? The determination by Court on the above question remains subject to an appeal contemplated under Section 18 of the Act of 1986 and the writ petition filed directly against the order of attachment and rejection of representation without availing the remedy before the Court concerned is not maintainable. Submission thus is that interference by the Writ Court would not be warranted at this stage, inasmuch as orders of administrative authority are yet to attain finality under the Act of 1986.
4. We have heard Sri Rahul Srivastava, advocate for the petitioner and learned A.G.A. for the respondents and perused the materials brought on record.
5. In order to appreciate the arguments advanced it would be worth referring to the statutory scheme contained in Sections 14 to 18 of the Act of 1986, providing for attachment and release of properties. Attachment of property is permissible under Section 14 of the Act of 1986 by the District Magistrate, where he has reason to believe that such property, whether movable or immovable, has been acquired by a gangster as a result of commissioning of offence triable under the Act of 1986. The provisions of Code of Criminal Procedure are held applicable by virtue of sub-section (2). Sub-section (3) of Section 14 contemplates appointment of an Administrator for managing the property attached under Section 14 (1) of the Act while sub-section (4) of Section 14 provides for police help to the Administrator for proper and effective administration of such property. Any person aggrieved by attachment of property under Section 14 is entitled to make a representation against the order of attachment, under sub Section (1) of Section 15 of the Act of 1986, showing the circumstances and the sources by which such property was acquired to dislodge the opinion formed by the administrative authority that the property has been acquired from the proceeds of crime triable under the Act of 1986.
6. Sub-Section (2) of Section 15 provides that if the District Magistrate is satisfied with the genuineness of the claim made under sub Section (1), he shall release the property from attachment to the claimant. However, where such a representation is not accepted or if no representation is made, the matter is referred by the District Magistrate alongwith his report to the Court, having jurisdiction to try an offence under Section 16(1) of the Act of 1986. Sub Section (2) of section 16 of the Act of 1986 also provides that where the District Magistrate refuses to attach any property or has ordered for release of such property, the State Government or any person aggrieved by such refusal or release shall also have remedy of approaching the Court for an inquiry on the question as to whether property, which is the subject matter of attachment, has been acquired by proceeds of crime, as a result of commissioning of any offence triable under the Act of 1986. On receipt of such reference or application, the Court is required to fix a date for inquiry after giving notice and for such purposes the Court, while conducting inquiry will have the power of Civil Court. Based upon the inquiry so conducted, the concerned Court would adjudicate the question as to whether the property is acquired by a Gangster by commissioning offence triable under the Act of 1986. The determination made by the Court is then subjected to appeal contemplated under Section 18 of the Act of 1986.
7. The statutory scheme, noticed above, has a specific purpose to achieve inasmuch as the determination made by administrative authorities about property in question having been acquired by a gangster from proceeds of crime, triable under the Act of 1986, is made subject to a judicial enquiry by the competent court, which is entrusted with the powers of civil court to determine the factual and legal issues, finally, subject to an appeal under Section 18 of the Act of 1986. The object of conferring such power upon the court is to check arbitrary exercise of power by the administrative authorities and to ensure that none is deprived of his property except in accordance with law. Since the powers of court for undertaking such enquiry is wide and comprehensive and is otherwise efficacious and effective, we find no reason not to allow the issues to be determined in the manner stipulated in the Act of 1986 and refrain from entertaining a petition for judicial review under Article 226 of the Constitution of India.
8. In light of the above deliberations, we would not be inclined to entertain the present writ petition, at this juncture, directly against the order of District Magistrate and to embark upon a factual and legal inquiry in the matter, which is yet to be undertaken by the Court authorised to do so, at the first instance and thereafter by the appellate court.
9. Learned counsel for the petitioner has relied upon the judgment of learned Single Judge of this Court in Badan Singh (supra), wherein the Court proceeded to observe as under in para-18:-
"18. Chapter XXIX of the Code of Crimi nal Procedure, 1973 under caption "Appeal" contains twenty three sections running from Ss. 372 to 394. Section 372 provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Section 373 makes provision for appeal against order passed under S. 117 and 121, Cr. P.C. Under S. 374 appeal lies to the Supreme Court and the High Court against the order of conviction. Section 375 bars appeal against the order of conviction on the accused admitting his guilt. Section 376 provides that no appeal shall lie in petty cases, Under S. 377 right has been conferred on the State Government to move in appeal against inadequacy of sentence. Section 378 provides for filing appeal against the order of acquittal. Section 379 makes provision for appeal to the Supreme Court aginst the order of the High Court reversing acquittal to conviction. Special right to appeal in certain cases is provided under S. 380. Section 381 and 382 prescribe the procedure for filing of appeal in the Court of Sesions and the manner of hearing. The Act is a penal Statute and Section 3 thereof prescribes punishment to be awarded to a gangster as well as public servant redering illegal help or support to a gangster. No separate procedure is prescribed to challenge the order of conviction or acquittal passed by the Special Judge in exercise of power conferred by the Act. So on a conspectus of Chapter XXIX, Cr. P.C. and Ss. 3 and 18 of the Act what appears is that appeal would lie against the order of conviction or acquittal under the Act and not against the order of attachment of the District Magistrate or the order of the Special Court on the reference made by the District Magistrate. Even assuming that Section 18 has the application and orders of the District Magistrate and the Special Court can be challenged by way of appeal yet I would hold that the writ petition under Art. 226 of the Constitution is maintainable when the very order of attachment passed by the District Magistrate is illegal, arbitrary and without jurisdiction. For arriving at such conclusion, I derive support from the decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 7 JT (SC) 243 : ((1998) 8 SCC 1 : AIR 1999 SC 22) where it is laid down that availability of effective and efficacious remedy will not operate as bar to approach the High Court under Art. 226 of the Constitution in at least three contingencies, namely where writ petition has been filed for enforcement of fundamental rights, or where there has been violation of principle of natural justice or where the order or proceedings are without jurisdiction or vires of an Act is challenged."
10. The observations contained in the aforesaid paragraph proceeds on two premises; firstly, the Court has opined that the appeal stipulated under Section 18 of the Act of 1986 since refers to the applicability of the provisions of Chapter-XXIX of the Criminal Procedure Code, which is limited to an order of acquittal or conviction, therefore, no appeal would lie against the determination made by the judicial forum on the question as to whether the property subjected to attachment has been acquired by a Gangster as a result of commissioning of an offence triable under the Act and secondly, the Court has observed that even if such a remedy of appeal lies, yet the remedy before the Writ Court would not be ousted in view of the law laid down by the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai (1998) 7 JT (SC) 243.
11. The question, in our opinion, is not with regard to ouster of jurisdiction of writ Court under Article 226 of the Constitution of India inasmuch as it has already been held that judicial review therein is a basic feature of Constitution of India and, the constitutional remedy, in that regard, cannot be ousted under a statute (See:- L. Chandra Kumar Vs. Union of India and others, AIR (1997) 3 SCC 261).
12. The question, herein, rather is as to whether jurisdiction under Article 226 of the Constitution of India is required to be invoked against the order of District Magistrate, directly, when a detailed procedure otherwise is contemplated under the Special Act to determine issues that arise for consideration in the present petition?
13. Section 18 of the Act, which has been referred to in Badan Singh (supra), reads as under:-
"The provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgement or order of a Court passed under the provisions of this Act."
Provisions of Chapter XXIX of the Code are made applicable, mutatis mutandis, to an appeal against any judgment or order of a Court passed under the provisions of the Act of 1986. The applicability of Chapter XXIX primarily refers to the procedural part while stipulation of appeal in the substantive part refers to appeal being against any judgment or order of a Court passed under the provisions of the Act of 1986.
14. It is well settled that appeal is a creature of statute. The statute, herein, clearly provides for an appeal against any judgment or order of a Court passed under the provisions of the Act of 1986. There is no exclusion clause in Section 18 and, therefore, the plain language of the statute leaves no ambiguity that appeal shall lie against all orders or judgments of a Court passed under the provisions of the Act of 1986.
15. We are of the considered view that merely because the provisions of Chapter-XXIX of the Code of Criminal Procedure are made applicable in section 18 of the Act of 1986, it would not mean that appeal would be restricted only to an order of acquittal or conviction, as is contemplated in the Code of Criminal Procedure. Chapter XXIX APPEALS in the Code of Criminal Procedure begins with Section 372 Cr.P.C. as per which no appeal shall lie from any judgment or order of a criminal court except as provided for by in the code or by any other law for the time being in force. Even the code of criminal procedure contemplates filing of appeal in matters other than conviction and acquittal [See: Section 458(2) Cr.P.C. in which an appeal lies in respect of release of property to the Court to which appeal ordinarily lie from convictions by the Magistrate]. Section 18 in the Act of 1986 providing for appeal is any other law providing for appeal in terms of Section 372 of the Code. The Act of 1986 is otherwise a special Act and its provisions would prevail over general law by virtue of Section 20 of the Act of 1986 since its provisions would prevail, notwithstanding anything in consistent therewith contained in any other enactment.
16. Reference to Code of Criminal Procedure in Section 18, and its applicability mutatis mutandis, must therefore be restricted to the procedural part. Any limitation on the scope of appeal under Section 18 to conviction or acquittal, by applying the provisions of Chapter-XXIX of the Code otherwise would go contrary to the plain language of Section 18 which permits filing of appeal against any judgment or order of the Court and would be hit by Section 20 of the Act of 1986.
17. Any order or judgment, referred to in Section 18 would include an order for release of property where the Court upon inquiry under Section 17 finds that the property was not acquired by a Gangster as a result of commission of any offence triable under the Act of 1986. The determination by the Court, on the question whether property is acquired by Gangster as a result of an offence triable under the Act, would be an order and, therefore, the remedy of an appeal would clearly be available in such circumstances. With utmost respect, we therefore do not subscribe to the view taken by learned Single Judge in Badan Singh (supra) that an appeal would not lie against the determination made by the competent court on the question as to whether the property subjected to attachment is a property acquired by the Gangster, as a result of commissioning of an offence triable under the Act.
18. We may also note that offences under the Act of 1986 are to be tried by special courts constituted under Section 5 of the Act of 1986. By virtue of sub-section (4) of Section 5 only a Sessions Judge or Additional Sessions Judge in the State can man the Special Court under the Act of 1986 and, therefore, an appeal against his order would lie as per Chapter-XXIX of the Code only to the High Court. Once that be so, a writ otherwise would not be entertained directly against the order passed under Section 15 of the Act of 1986 by the District Magistrate.
19. Petitioner, therefore, can get no relief on the basis of judgment in Badan Singh (supra) which otherwise was a case arising out of an order passed under Section 17 of the Act and does not support the view that a writ would lie directly against an order passed by the District Magistrate attaching the property. The objection of learned A.G.A. to the maintainability of the present petition is, therefore, sustained.
20. The other judgment relied upon by the counsel for the petitioner in the case of Afzal Begum (supra) was delivered in an criminal appeal under Section 18 of the Act of 1986 arising from an order passed by the Court under Section 17 of the Act of 1986. We are in agreement with the reasoning assigned in para -14 of the judgment in Afzal Begum (supra), which is reproduced hereinafter:-
"14. The power of the Court to hold an inquiry under section 16 on the reference made by the District Magistrate is not an empty formality, which has a purpose behind it. The object behind providing the power of judicial scrutiny under section 16 of the Code is to check arbitrary exercise of the power by the District Magistrate in depriving a person of his properties and to restore the rule of law, therefore, a heavy duty lies on the court to hold a thorough inquiry to find out the truth with regard to the question, whether the property was acquired by or as a result of the commission of an offence triable under the Act. The order to be passed under section 17 of the Act must disclose reasons and the evidence in support of the finding of the court. The Court is not expected to act as a post office or mouthpiece of the State or the District Magistrate. If a person has no criminal history during the period the property was acquired by him, how the property can be held to be a property acquired by or as a result of commission of an offence triable under the Act is a pivotal question which has to be answered by the Court. Besides the aforesaid question, the other important question to be considered by the Court is whether the property which was acquired prior to the registration of the case against the accused under the Act or prior to the registration of the first case of the gang chart, can be attached by the District Magistrate under section 14 of the Act."
Above judgment also, in no way, supports the petitioner's contention with regard to entertainment of writ petition, at this stage, against the order of the District Magistrate.
21. For the reasons enumerated above we decline to entertain the present writ petition, at this stage, while leaving it open for the petitioner to raise all legal and factual issues during course of inquiry under Section 17 of the Act of 1986. Writ petition, accordingly, is summarily rejected without any order passed as to costs.
Order Date :- 30.3.2022 n.u.