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2020 DIGILAW 1345 (ALL)

Shilendra Singh v. State Of U. P.

2020-11-19

J.J.MUNIR

body2020
JUDGMENT : 1. The petitioner, Shilendra Singh, has instituted this petition under Article 227 of the Constitution, praying that a writ, order or direction in the nature of certiorari be issued, quashing an order passed by the learned Special Judge (Gangsters Act)/Additional Sessions Judge, Court No. 6, Jhansi dated 13.09.2019, made in G.S.T. Misc. No. 454 of 2017, accepting the District Magistrate's reference under Section 16 (1) of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (for short “the Act, 1986”). Also challenged is the order of the District Magistrate, Jhansi dated 08.08.2017, ordering attachment of three motor vehicles of the petitioner under Section 14 (1) of the Act, 1986, and a further order dated 22.11.2017 passed by the District Magistrate last mentioned, rejecting the petitioner's representation made under Section 15(1), seeking release of the said property and making a reference along with his report to the Court under Section 16 (1) of the Act, 1986. 2. It must be remarked at the outset that in a petition under Article 227 of the Constitution, no order in the nature of a writ, mentioned in Article 226 of the Constitution, can be asked for. The distinction between a writ petition under Article 226 of the Constitution and a petition under Article 227 is substantial and clear. The prayer, therefore, made in this petition is not worded the way, it ought to be in a petition under Article 227 of the Constitution. Nevertheless, this petition being one under Article 227 of the Constitution, this Court proceeds to treat the prayer as one made to set aside the impugned orders above described, invoking the supervisory jurisdiction of this Court. 3. This petition has not been admitted to hearing formally, though this Court required the State to file a counter affidavit within two weeks, vide order dated 29.11.2019. The State has filed a counter affidavit in the matter on 08.01.2020, which is on record. On 18.02.2020, this Court passed the following order : “Learned counsel for the petitioner is hereby directed to show case laws about maintainability of the writ petition particularly keeping in view the provisions provided under Section 18 of the U.P. Gangster and Anti Social Activities (Prevention) Act. Put up this matter as fresh on 27.02.2020.” 4. Heard Sri Fakhruzzaman, learned counsel for the petitioner and Sri Arvind Kumar, learned Additional Government Advocate appearing on behalf of the State. Put up this matter as fresh on 27.02.2020.” 4. Heard Sri Fakhruzzaman, learned counsel for the petitioner and Sri Arvind Kumar, learned Additional Government Advocate appearing on behalf of the State. Learned A.G.A. has pressed his objection to the effect that this petition under Article 227 of the Constitution is not maintainable, as the impugned order dated 13.09.2019, in G.S.T. Misc. No. 454 of 2017, is appealable under Section 18 of the Act, 1986 to this Court. This Court proposes to dispose of that objection in the first instance. 5. It appears that the petitioner was served with a notice dated 08.08.2017 under Section 14 (1) of the Act, 1986, detailing a list of some 16 cases registered against him between the years 2004-17, most of which were pending trial in different courts at the time. He was required to disclose the source of his income to acquire three motor vehicles, two tractors and a Pulsar motorcycle, indicating clearly that according to the police report, he had no source of income or ancestral property to furnish the necessary wherewithal. The properties were, prima facie, held to be proceeds of crime, relevant under the Act, 1986 and, therefore, liable to be attached. The properties were ordered to be attached as an interim measure, pending the petitioner’s representation that he may prefer under Section 15 (1) of the Act, 1986. The petitioner preferred a statutory representation, disclosing the source of acquisition of these movables. The representation is one dated 25.09.2017. The District Magistrate proceeded to reject this representation by his order dated 22.11.2017 made in Case No. 5 of 2017, under Section 14 (1) of the Act, 1986. The District Magistrate having declined to release the attached movables, a reference was made to the court under Section 16 (1). It was on the basis of the aforesaid reference made by the District Magistrate that G.S.T. No. 454 of 2017, State v. Shilendra Singh, was registered on the file of the learned Special Judge (Gangsters Act)/Additional Sessions Judge, Court No. 6, Jhansi. On receipt of the reference, the learned Judge fixed a date, holding an enquiry with notice to the petitioner and the State Government. The learned Judge recorded evidence led by parties, where two witnesses on behalf of the petitioner, to wit, O.P.W.1, the petitioner himself and O.P.W.2, his father Vishal Singh testified. On receipt of the reference, the learned Judge fixed a date, holding an enquiry with notice to the petitioner and the State Government. The learned Judge recorded evidence led by parties, where two witnesses on behalf of the petitioner, to wit, O.P.W.1, the petitioner himself and O.P.W.2, his father Vishal Singh testified. The Court, on a perusal of the evidence on record, proceeded to accept the reference and affirmed the order of the District Magistrate dated 22.11.2017, attaching the petitioner’s property. The attached property was ordered to be confiscated, with the Collector being appointed receiver to dispose of the same. 6. Learned counsel for the petitioner argues that the impugned order has been passed without application of mind and ignoring material evidence, that clearly show that the property has not been acquired through unlawful means. It is urged that he has been falsely implicated in a number of cases, mala fide. Learned counsel for the petitioner has drawn attention of the Court towards the record, where a final report has been submitted or he has been acquitted, which, according to the learned counsel, constitute relevant material that has been ignored by the learned Trial Judge. He submits that this is a case where the petitioner ought not to be relegated to the alternative remedy of appeal under Section 18 of the Act, 1986, in view of the law laid down by Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 . It is urged, on the strength of the said decision and otherwise also as a well-acknowledged principle, that in exercise of our jurisdiction under Article 226 of the Constitution, the bar of alternative remedy is not absolute. He submits that Whirlpool Corporation (supra) carves out three distinct exceptions, where the bar of alternative remedy is not at all attracted. He submits that in the present case, the proceedings against him are without jurisdiction and in violation of his fundamental rights under Articles 14 and 15 of the Constitution. Once that is his case, the petitioner cannot be relegated to avail his alternative remedy under the Act, 1986. 7. This Court has keenly considered the matter. A perusal of the material on record and the course of proceedings do not indicate it to be a case where one or the other exceptions to the rule of alternative remedy may be attracted. 7. This Court has keenly considered the matter. A perusal of the material on record and the course of proceedings do not indicate it to be a case where one or the other exceptions to the rule of alternative remedy may be attracted. It is true that the rule of alternative remedy does not oust this Court's jurisdiction under Article 226 of the Constitution, but at the same time, the rule is one which has to be applied judiciously, and not arbitrarily. Here, the Court finds that the impugned order is one passed by the learned Judge on the basis of a competent reference made by the District Magistrate, under Section 16 (1) of the Act, 1986. The reference has been heard and decided, granting opportunity to all parties to this petition. The procedure prescribed for hearing a reference, consistent with the principles of natural justice has been adhered to. There is no breach of the provisions of Section 16 (3) or 16 (4) of the Act, 1986. The order impugned, therefore, cannot be said to be without jurisdiction. The learned Trial Judge has recorded evidence, where the petitioner and his father have appeared in the witness box and testified in support of their case. There is no grievance made, so far as violation of the petitioner's fundamental rights under Articles 14 and 21 of the Constitution are concerned. There is no material pointed out, which may show in what manner those rights, enshrined in Part III of the Constitution, have been violated by the learned Judge while passing the order impugned. 8. Learned counsel for the petitioner submits that a writ petition under Article 226 of the Constitution can, nevertheless, be heard against the order impugned that has drastic civil consequences of confiscating the petitioner's property. He emphasizes that the right to property is enshrined under Article 300A of the Constitution, though not a fundamental right. It ought to be safeguarded by this Court by doing a review of the order impugned, under which the petitioner has been deprived of his property. In this connection, reference has been made to the relevant provisions of the Act, 1986 that are carried in Sections 14 to 18. These read : 14. Attachment of property. It ought to be safeguarded by this Court by doing a review of the order impugned, under which the petitioner has been deprived of his property. In this connection, reference has been made to the relevant provisions of the Act, 1986 that are carried in Sections 14 to 18. These read : 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 subsection (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 subsection (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. 9. If one were to accept that the order under Section 17 of the Act, 1986 made by the Judge or Court on a reference by the District Magistrate under Section 16 (1) is an order of drastic civil consequences, confiscatory in nature, an aggrieved party is not remediless. The entire scheme of appeals provided under Chapter XIX of The Code of Criminal Procedure, 1973 is available under the Act, 1986. Learned counsel for the petitioner submits that the impugned order passed by the Court is not specifically made appealable under Section 18 of the Act, 1986, as it does not say that an order under Section 17 would be appealble. Section 18 provides in general terms that any judgment and order of a court, passed under the provisions of the Act, 1986, would be appealable. This issue need not detain this Court for long, inasmuch as an order of the Court passed under Section 17, accepting a reference by the Collector under Section 16 (1) of the Act, 1986 or any order made under Section 17, has been held to be appealable under Section 18 by a Division Bench of this Court in Jangali Pasi v. State of U.P. Thru Secy. and Another, 2015 (3) ALJ 673 where it has been held : The 1986 Act therefore has to be read as a complete Code in itself so as to provide such benefit of appeal which the legislature appears to have intended under Section 18. Applying the interpretive tool, Section 18 categorically provides an appeal against any judgment or order (emphasis supplied) and then mutatis mutandis applies Chapter XXIX of the Cr.P.C. to such an appeal. Judges while interpreting such provisions have to adopt the legalistic method as well as the pragmatistic method as they are said to wear two hats. This distinguishes them from mere umpires and they enjoy a more certain interpretive freedom by applying reasoning through analogy in order to interpret and explain cannons of statutory construction. Applying the said principles, we are also of the opinion that Section 18 does not contain any prohibitive language nor does it give a restrictive meaning to the right of appeal against any judgment or order under the Act which is a special act. This therefore includes the right of an appeal against an order refusing to release attached property. The interpretation has to be meaningful and that which advances the cause of justice. (emphasis by Court) 10. In Jangali Pasi (supra), it has further been held : Having considered the above, we therefore find ourselves in full agreement with the judgment of the learned Single Judge in the case of Kailash Sahkari Awas Samiti (supra) which lays down the law correctly and an appeal against an order refusing to release attachment under Section 17 of the 1986 Act would be maintainable under Section 18 of the same Act. 11. The said decision has been followed by another Division Bench of this Court in State v. U.P. v. Nasim Khan and Others, Government Appeal No. -6042 of 2010, decided on 06.12.2016, where it has been held : We find ourselves in full agreement with the judgment and order dated 16.4.2015 passed by the Division Bench of this Court in the Criminal Misc. Writ Petition No. 8053 of 2015 (Jangali Pasi Vs. Writ Petition No. 8053 of 2015 (Jangali Pasi Vs. State of U.P. through Secretary and another) with regard to maintainability of the appeal under section 18 of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 filed against the order passed under section 17 of the same Act, as such, the present appeal filed against the impugned judgment and order dated 23.7.2010 is maintainable. 12. In view of aforesaid clear position of law, there is no good reason for this Court to entertain this petition. It is, accordingly, dismissed on the ground of availability of an equally efficacious alternative remedy. 13. It will, however, be open to the petitioner to avail his remedy of appeal, as envisaged under the Act, 1986.