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2018 DIGILAW 948 (ALL)

HARDEV SINGH v. STATE OF U. P.

2018-04-18

J.J.MUNIR

body2018
JUDGMENT Hon’ble J.J. Munir, J.—Heard Sri Ram Datt Dauholia, learned counsel for the revisionist at length and Sri Kamal Singh Yadav, learned AGA alongwith Sri Mayank Awasthi appearing for the State. 2. This revision has been filed to challenge an order dated 17.1.2018 passed by the District Magistrate, Lalitpur in Case No. D201706450747 (State v. Hardev Singh), under Section 14(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the ‘Act’), PS Kotwali Lalitpur, District Lalitpur ordering the property of the revisionist to be attached and making a reference under Section 16(1) of the Act to the Court. 3. It may be pointed out that upon attachment of the property under Section 14(1) of the Act the revisionist submitted a representation against the same on 23.10.2017 exercising his right under Section 15(1) of the Act which the District Magistrate dealt with under Sections 15 & 16(1) of the Act and refused to release. Thereafter in accordance with law under Section 16(1) of the Act a reference has been made to the Court, that is to say, the Special Judge, Gangster Act by means of the order impugned dated 17.1.2018. In this connection it is necessary to refer to the provisions of Sections 14, 15, 16, 17 & 18 of the Act which are quoted below: “14. Attachment of property.—(1) If the District Magistrate has reason to believe that any property, whether moveable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court. (2) The provisions of the Code shall, mutatis mutandis apply to every such attachment. (3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property. 15. (3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof. (4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property. 15. Release of property.—(1) Where any property is attached under Section 14, the claimant thereof may within three months from the date of knowledge of such attachment make a representation to the District Magistrate showing the circumstances in and the sources by which such property was acquired by him. (2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section (1) he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant. 16. Inquiry into the character of acquisition of property by Court.—(1) Where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2) of Section 15 he shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act. (2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such Court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property. (3)(a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case. (b) On the date so fixed or any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case. (4) For the purpose of inquiry under sub-section (3) the Court, shall have the power of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act No. 5 of 1908), in respect of the following matters, namely : (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commission for examination of witness or documents; (f) dismissing a reference for default or deciding it ex parte (g) setting aside an order of dismissal for default or ex parte decision. (5) In any proceedings under this section, the burden of proving that the property in question or any part thereof was not acquired by a gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act, 1872 (Act No. 1 of 1872), notwithstanding. 17. Order after inquiry.—If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise. 18. Appeal.—The provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgment on order of a Court passed under the provisions of this Act.” 4. 18. Appeal.—The provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgment on order of a Court passed under the provisions of this Act.” 4. A perusal of the aforesaid provisions make it transparently clear that in the event the accused whose property is attached by the District Magistrate under Section 14(1) of the Act chooses to represent, the District Magistrate has to deal with the representation and if he is satisfied about the genuineness of the claim made under Sub-Section (1) of Section 14 of the Act, that is to say, the circumstances in and resources by which the property was acquired, the District Magistrate shall release the property. In case the District Magistrate is not satisfied about the genuineness of the claim of the accused as to the property attached, he has to make a reference of the matter to the Court having jurisdiction to try offences under the Act which in this case means the Special Judge (Gangsters Act) or the Special Court, to employ the words of the statute. 5. The Special Court on receipt of a reference under Sub-Section (1) of Section 16 of the Act shall fix a date for inquiry and give notice thereof to the person making the representation under Section 15 of the Act and to the State Government as also to any other person whose interest appears to be involved in the case. Thereafter, on the date fixed in the notice or any subsequent date to which the inquiry may be adjourned, the Court will require parties to produce evidence and take such further evidence as it considers necessary to decide the question whether the property was acquired by a gangster as a result of the commission of any offence triable under the Act. The Special Court is enjoined to pass orders under Section 17 either releasing the property of the person from whose possession it was attached or in case it is found to be in fact acquired by a gangster as a result of commission of any offence under the Act the Court is empowered to direct disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof or otherwise. The order under Section 17 of the Act is final but for an appeal provided under Section 18 of the Act which would be governed by the provisions of Chapter XXIX CrPC. 6. Looking to the said fact the order impugned in this revision is in fact not at all a final order. It is only a proposal that the District Magistrate has made and would have submitted a reference to the Court empowered to try an offence under the Act. The Court would have issued notice to the revisionist besides the State on the reference received. In fact the impugned order dated 17.1.2018 shows that a reference under Section 16(1) of the Act has been made to the Court of the learned Special Judge (Gangsters Act), Lalitpur. The revisionist has a right to be heard in the matter before the Special Judge (Gangsters Act), Lalitpur who would finally decide upon the validity of the attachment by following the procedure prescribed under Section 16(3), (4) & (5) of the Act and pass final orders under Section 17 where against the revisionist, if aggrieved, would have a right to appeal. The order impugned dated 17.1.2018 is not at all an order, therefore, to which finality attaches and against which the present revision may be filed. 7. There is a complete procedure prescribed under Sections 14, 15, 16, 17 & 18 of the Act where a criminal revision against an order of the District Magistrate passed under Section 16(1) of the Act is out of the statutory context. Moreover, the District Magistrate exercising powers under Section 14(1) of the Act and at his level taking a final decision under Section 16(1) of the Act to keep the attachment and to make a reference to the Court is himself not at all a Court subordinate to the High Court within the meaning of Section 397/401 CrPC so as to be amenable to the revisional jurisdiction. For this reason as well a revision under Section 397/401 CrPC against an order under Section 16(1) of the Act, would not be maintainable. 8. Considered from any view the present criminal revision against the impugned order passed by the District Magistrate under Section 16(1) of the Act is not maintainable. 9. This criminal revision is, therefore, dismissed as not maintainable.