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2024 DIGILAW 370 (ALL)

Meena Devi v. State of U. P.

2024-02-05

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. In the present criminal appeal the judgment and order dated 4.5.2023 passed by Additional Sessions Judge/Special Judge Gangster Act, Court No. 4, Azamgarh in Criminal Misc. Case No. 04 of 2023, which is a reference made to the Court under Section 16(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as “the Act”) whereby the orders of the District Magistrate, Azamgarh dated 11.8.2022 for attachment of the landed properties of appellant under Section 14 of the Act as well as order dated 28.12.2022 dismissing the objection moved by the appellant have been affirmed, has been questioned. 2. The facts of the case, in brief, are that the District Magistrate, Azamgarh passed an order dated 11.8.2022 under Section 14(1) of the Act for attachment of two landed properties of the appellant on the basis of report of in-charge Inspector, Police Station Jiyanpur, District Azamgarh dated 23.7.2022, submitted through Senior Superintendent of Police, Azamgarh. It was mentioned in the report that during investigation of Case Crime No. 467 of 2013 under Section 3(1) of the Act, it was found that Rajendra Yadav, the husband of the appellant owned some landed property in the name of the appellant, which was purchased by him with illegally earned money as gangster. 3. The District Magistrate, Azamgarh relying upon the police report, above mentioned, based upon the criminal history of Rajendra Yadav, the husband of the appellant and submissions made therein that the two properties, detailed below, had been acquired by the gangster Rajendra Yadav as a result of the commission of an offence triable under this Act, passed the aforesaid order for attachment dated 11.8.2022 of both the properties under Section 14(1) of the Act. (i) Plot No. 521/732 and 522 measuring 0.134 hec. land out of total area of 0.440 hec. valuing Rs. 5,22,600/- only as per circle rate, purchased on 7.12.2011. (ii) Plot No. 521/732 and 522 measuring 0.134 hec. land out of total area of 0.440 hec. valuing Rs. 5,22,600/- only as per circle rate, purchased on 22.3.2012. (Total value of both plots: Rs. 10,45,200/-). 4. Against the aforesaid attachment order, the appellant and her husband Rajendra Yadav made representation dated 8.9.2022 under Section 15(1) of the Act to the District Magistrate, Azamgarh, who dismissed the same and affirmed the order of attachment dated 11.8.2022. valuing Rs. 5,22,600/- only as per circle rate, purchased on 22.3.2012. (Total value of both plots: Rs. 10,45,200/-). 4. Against the aforesaid attachment order, the appellant and her husband Rajendra Yadav made representation dated 8.9.2022 under Section 15(1) of the Act to the District Magistrate, Azamgarh, who dismissed the same and affirmed the order of attachment dated 11.8.2022. Simultaneously, he referred the matter to the Court of Additional Sessions Judge, Gangster Act under Section 16(1) of the Act vide impugned order dated 28.12.2022. The appellant approached the competent Court at Azamgarh but her application was rejected by the Special Judge, Gangster Act/Additional Sessions Judge, Court No. 4, Azamgarh vide impugned order dated 4.5.2023. Feeling aggrieved with the said order, this criminal appeal has been preferred by the appellant before this Court. 5. Heard Shri R.C. Yadav, learned counsel for the appellant, Shri Nitesh Kumar Srivastava, learned A.G.A. and perused the record. 6. It is submitted by the learned counsel for the appellant that the husband of the appellant has been falsely implicated in nine criminal cases, which are as under : (i) Case Crime No. 193 of 2010, under Sections 457, 380 IPC, P.S. Jeeyanpur, District Azamgarh. (ii) Case Crime No. 299 of 2010, under Sections 3/5 Arms Act, P.S. Jeeyanpur, District Azamgarh. (iii) Case Crime No. 223 of 2010, under Sections 307, 34 IPC, P.S. Jeeyanpur, District Azamgarh. (iv) Case Crime No. 340 of 2010, under Sections 3(1) U.P. Gangster Act, P.S. Jeeyanpur, District Azamgarh. (v) Case Crime No. 617 of 2010, under Sections 307, 34 IPC and 25/27 Arms Act, P.S. Jeeyanpur, District Azamgarh. (vi) Case Crime No. 02 of 2012, under Section 3(1) Gangster Act, P.S. Jeeyanpur, District Azamgarh. (vii) Case Crime No. 348 of 2013, under Sections 147, 302, 120-B IPC and 7 Criminal Law Amendment Act, P.S. Jeeyanpur, District Azamgarh. (viii) Case Crime No. 399 of 2020, under Sections 188, 278 IPC, P.S. Jeeyanpur, District Azamgarh. (ix) Case Crime No. 170 of 2021, under Sections 419, 420, 467, 468, 471 IPC, P.S. Jeeyanpur, District Azamgarh. 7. It is also submitted that out of the two attached landed properties, one valuing Rs. 2,10,000/- was purchased by the appellant on 8.12.2011 with the money arranged by her in the following manner: (i) Rs. 10,000/- from her personal savings. (ii) Rs. 25,000/- borrowed from her father. (iii) Rs. 25,000/- borrowed from her Nandoi. (iv) Rs. 1,50,000/- from father-in-law. 7. It is also submitted that out of the two attached landed properties, one valuing Rs. 2,10,000/- was purchased by the appellant on 8.12.2011 with the money arranged by her in the following manner: (i) Rs. 10,000/- from her personal savings. (ii) Rs. 25,000/- borrowed from her father. (iii) Rs. 25,000/- borrowed from her Nandoi. (iv) Rs. 1,50,000/- from father-in-law. It is also submitted that another property said to be in her possession valuing Rs. 2,20,000/- was purchased by her on 22.3.2012 with the money arranged by her in the following manner: (i) Money earned by her father-in-law from agricultural products and sale of milk. (ii) Money borrowed from near relatives and by sale of her jewels. Learned Counsel for the appellant further submits that appellant is neither gangster nor she has earned the aforesaid properties on account of her involvement in anti social activities. It is further submitted that the District Magistrate, Azamgarh did not consider the plea of appellant and arbitrarily confirmed his order of attachment while rejecting her representation and holding that the property was procured by illegally earned money by the husband of the appellant and referred the case to Special Judge, Gangster Act, Azamgarh. It is further submitted that the Additional Sessions Judge, Court no. 4, Azamgarh passed the order dated 4.5.2023, under challenge in this appeal, upholding the order of the District Magistrate dated 28.12.2022 and dismissing the application of the appellant which is illegal and against the mandate of law. 8. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that the Court concerned after examining all the facts and evidence on record passed the impugned order and there is no illegality in the same warranting interference by this Court. 9. I have considered the rivals submissions made by the learned counsel for the parties and have gone through the entire record carefully. 10. 9. I have considered the rivals submissions made by the learned counsel for the parties and have gone through the entire record carefully. 10. Before examining the arguments advanced by the learned counsel for the parties, it is appropriate to first consider the provisions of Section 2(b) and 2(c) of the Act, which read as under: “2(b) “Gang” means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely: ............... ............... 2(c) “gangster” means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities.” 11. On a conjoint reading of Section 2(b) and 2(c) of the Act, it appears that for taking action under Section 14 of the Act against a person, there must be material for objective determination of the District Magistrate that he either, as a member, leader or organiser of a gang acquired any property as a result of commission of any offence under the Act. There must be a nexus between his criminal act and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property, as it is necessary to find out whether his acquisition of property was a result of commission of any offence enumerated in the Act being a gangster. Further, one might have committed several offences but if the property is acquired by him with the aid of his earning from legal source, no action under Section 14 of the Act can be taken against him. 12. Section 14 of the Act reads as under: “14. Attachment of property: (1) If the District Magistrate has reason to believe that any property, whether movable 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.” 13. This Court had an opportunity to go through the various judgments of this Court viz. Smt. Rashida Bano vs. State of U.P. and Others, 2014 (6) ADJ 575 , Badan Singh @ Baddo vs. State of U.P. and Others, (2001)10 AHC CK 0033, Smt. Maina Devi vs. State of U.P. 2013 (9) ADJ 542 , Waseem Khan vs. State of U.P. 2023 Law Suit (All) 751 and Criminal Appeal No. 2130 of 2021 (Abrar vs. State of U.P. and Another), decided on 23.10.2021 propounding legal dictums on the subject and a co-joint reading of the same leads to draw a conclusion that Section 14 clearly provides that the order of the District Magistrate attaching one's property, must be based on reason and not arbitrary. The expression “reason to believe” appearing therein has some intent and purpose. It puts fetter in the arbitrary exercise of power of attachment to deny a person of his right to any property. Law requires that there must be reason to believe that the property sought to be attached, has been acquired by a “gangster” as a result of commission of any offence under the Act. The expression “reason to believe” contemplates an objective determination based on intelligent care and deliberation involving judicial review, as distinguished from purely subjective consideration. There must be rational and intelligible nexus between “reason” and “belief'. The word “believe” is a much stronger word than “suspect' and it involves the necessity of showing that the circumstances were such that a prudent man must have felt convinced in his mind that what has been alleged, is true. The expression “reason to believe” is also defined in Section 26 of the Indian Penal Code. According to the said definition, a person is said to have “reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. The expression “reason to believe” is also defined in Section 26 of the Indian Penal Code. According to the said definition, a person is said to have “reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. “Reason to believe” is not the same thing as the “suspicion” or “doubt” and mere seeing also cannot be equated to believing. “Reason to believe” is a higher level of state of mind. The Court, of course, cannot investigate into the adequacy or sufficiency of the reasons examined by the authority in coming to the believe, but the Court can certainly examine whether the reasons are relevant and have a bearing in the matter in regard to which it is required to entertain the belief. 14. To add further, it is to be kept in mind that initial burden is always upon the State to satisfy the District Magistrate with necessary materials that the appellant being a gangster acquired the properties as a result of commission of any offence mentioned in Section 2 of the Act. So far as the present case is concerned, this primary burden has been discharged by the State satisfactorily. It is also to be kept in mind that the appellant/aggrieved is not liable to establish the source of income to acquire the properties in question. It is no requirement of law that the aggrieved person seeking release of properties from attachment must prove the source of income for acquisition thereof. There must be a nexus between the commission of any offence and the acquisition of the property. It reflects from the perusal of the impugned order passed by the District Magistrate concerned that he being influenced by the report of the police, hastened to exercise power under the Act and attached the properties in question in absence of any material to show that the said properties were acquired as a result of commission of any offence triable under the Act. 15. A limb of argument as advanced by the learned counsel for the appellant is that this fact cannot lose sight of that no criminal case has ever been lodged against the appellant and the properties in question were purchased by her in the year 2011 and 2012 and thus, she was not a gangster and in this situation the requirement of law does not fulfil at all. If the appellant was not a gangster at the time of acquiring the properties, she could not commit an offence under the Act because it is an admitted case that the properties in question were purchased by the appellant in the year 2011 and 2012 and at no point of time she was having any criminal history to her credit and she has never been a gangster. But to counter the aforesaid plea, the learned AGA has submitted that since her husband has been a gangster at the relevant point of time, by virtue of provisions of Section 2(b) of the Act, she herself very well comes within the clutches of the Act. 16. It is settled that the District Magistrate shall direct attachment of any property upon his satisfaction that the property in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under the Act. The provisions require that there must be a reason to believe on the part of the District Magistrate that the conditions for an action under Section 14 of the Act do exist. Thus, the satisfaction portion should not only indicate that the property sought to be attached was acquired by a gangster but it should also indicate that such acquisition has been made by commission of an offence under the Act. It is also settled that the satisfaction of the District Magistrate must not be arbitrary and must be based on the legal conditions indicated in Section 14 of the Act. [Vide: Smt. Kahkashan Parveen vs. State of U.P. 1999 (2) ACC 719 (All.) and Smt. Afzal Begum @ Akhtari vs. State of U.P. Criminal Appeal under Section 374 Cr.P.C. No. 3809 of 2008] 17. In the case in hand, from the perusal of the record it is evident that the District Magistrate, Azamgarh has directed for attachment of the properties of the appellant upon his satisfaction that the said properties have been acquired by gangster Rajendra Yadav, husband of the appellant in the name of his wife, the appellant, as a result of the commission of an offence triable under the Act. The said satisfaction has been recorded by the District Magistrate, Azamgarh considering the huge criminal antecedent of the husband of the appellant and also finding that no valid source of income was available with the appellant to purchase the relevant properties. Thus, while directing for attachment of the properties of the appellant, the District Magistrate, Azamgarh has complied with the legal requirements as enumerated under Section 14 of the Act. 18. The primary issue raised by the learned counsel for the appellant is that the appellant is a lady having no criminal history to her credit. She has sufficiently explained her source of income to purchase both the properties which were attached by the District Magistrate, Azamgarh in an arbitrary manner and making a despotic finding that the said properties were acquired by a gangster and that too by commission of an offence under the Act. Rebutting to that, it has been vehemently submitted by the learned State Counsel that the appellant being the wife of gangster Rajendra Yadav comes within the purview of definition of ‘gang’ provided under Section 2(b) of the Act. Referring to the definition of ‘gang’ as given under Section 2(b) of the Act it has been impressed upon that if any undue, temporal, pecuniary, material or other advantage is gained by a gangster for himself or for any other person, the provisions of the Act would completely apply. So far as the attachment of the property of a gangster in the case in hand is concerned, the appellant Meena Devi is the wife of Rajendra Yadav, who was indubitably a gangster having criminal antecedents since the year 2010 i.e. prior to acquiring of both the properties in the name of her wife, the appellant. The Court is mindful to note that the first property was acquired by the appellant in the year 2011 and prior to that in the year 2010 her husband Rajendra Yadav was having five criminal cases to his credit and they were connected with the offences of assault with intention to kill, arms act, theft and Gangster Act itself. Not only this, the impugned order dated 28.12.2022 passed by the District Magistrate, Azamgarh also discloses the criminal history of the said Rajendra Yadav. Not only this, the impugned order dated 28.12.2022 passed by the District Magistrate, Azamgarh also discloses the criminal history of the said Rajendra Yadav. It is clearly mentioned in the order of the District Magistrate dated 28.12.2022 that the said Rajendra Yadav has been convicted by the Special Judge, Gangster Act, Azamgarh in case crime no. 340 of 2010 for an imprisonment for a term of ten years vide order dated 31.3.2022 and for life imprisonment in case crime no. 348 of 2013 under Sections 147, 302, 120-B IPC vide order dated 17.5.2022 and is detained in District Jail, Azamgarh. The District Magistrate being satisfied with the gang chart, the criminal history and criminal acts of the said Rajendra Yadav, on the basis of material on record and the report given by the police has passed the impugned order. The order passed by the District Magistrate, Azamgarh dated 28.12.2022 also takes note and considers the objections raised by the present appellant and her husband Rajendra Yadav and in order to enquire into the matter a police report was also called for in the light of the aforesaid objections. The source of income as disclosed by the appellant in her objection has also been considered in the said order dated 28.12.2022 passed by the District Magistrate, Azamgarh and the affidavits produced by the appellant in the form of evidence were also found not maintainable and reliable after due consideration. 19. The Special Judge, Gangster Act, Azamgarh has also enquired into the matter and has taken into account the source of income to purchase the aforesaid two properties by the appellant and it has been found that the evidence adduced in respect of the source of income to purchase the said properties by the appellant is not reliable at all. The appellant herself has failed to show any reliable source of income of her own. In State of U.P. vs. Manoj Kumar Pandey, 2010 (69) ACC 1 it has been held that the Court on receipt of the reference by the District Magistrate or on an application under sub-section (2) shall make enquiry after fixing date and giving notice to the person making the application or to the person making representation and to the State Government and also to any other person interested in the case. From the perusal of the impugned judgment and order passed by the Special Judge, Gangster Act, Azamgarh it is evident that the Court concerned while making enquiry under Section 16 of the Act proceeded to issue notice to the concerned party/parties and took relevant documents produced by the appellant on record and thus has fully complied with the requirements of the said Section. 20. Considering the factual aspect of the matter, this Court also finds that so far as the second sale deed executed in the year 2012 is concerned, an affidavit deposed by the vendor Durbal is on record but no such affidavit has been given by the vendor of the property which was purchased by the appellant in the year 2011. It is also notable that Ramesh Chandra, Lal Bahadur Yadav, Satyanand Yadav and Narsingh Yadav, from whom the appellant claims to have borrowed money for purchase of the properties in question, do not depose as to what was their source of income and how they got money to lend it in favour of the appellant and even in their affidavits they have nowhere mentioned as to in which profession or job they are engaged. The appellant also claims to borrow money from her father-in-law, Ram Surat Yadav, who, according to her, was engaged in agriculture and business of selling sugar cane and milk. He is said to have lent Rs. 1,50,000/- in respect of the sale deed executed in the year 2011 and again in the year 2012 the appellant borrowed Rs. 50,000/- from him. In this respect some papers have been submitted by the appellant but the said evidence is insufficient to show actual income of her father-in-law – Ram Surat Yadav and moreover, no bank passbook or Income Tax return of the said Ram Surat Yadav has been brought on record. The appellant further claims that she had also taken Rs. 25,000/- and Rs. 50,000/- respectively for the sake of execution of sale deed in the year 2011 and 2012 from her father but what was the source of income of her father has nowhere been disclosed by the appellant and no affidavit of her father is on record. 21. The appellant further claims that she had also taken Rs. 25,000/- and Rs. 50,000/- respectively for the sake of execution of sale deed in the year 2011 and 2012 from her father but what was the source of income of her father has nowhere been disclosed by the appellant and no affidavit of her father is on record. 21. The District Magistrate, Azamgarh while passing the order dated 28.12.2022 and the learned Special Judge, Gangster Act, Azamgarh in the judgment and order dated 4.5.2023 have well discussed all the relevant circumstances, source of income of the appellant, criminal history of the husband of the appellant, his terror in the society and anti social activities wherein he was indulged with the object of disturbing public order, or of gaining the undue temporal, pecuniary, material or other advantage for himself or for any other person. Under Section 2(b)(xi) of the Act an offence of creating panic, alarm or terror in public is also taken as an anti social activity, which is relevant to include a group of persons within the domain of the phrase ‘gang’. The impugned orders passed by the District Magistrate, Azamgarh and the Court itself find a nexus between the criminal acts of the gangster Rajendra Yadav as enumerated therein and the properties acquired in fact by him in the name of his wife, the appellant. The source of income for purchase of the properties, as claimed by the appellant, has not been found worthy of credit by both the authorities. A perusal of the record reveals that there was a reason to believe for the District Magistrate, Azamgarh that the properties attached in this case were acquired by a gangster as a result of commission of any offence under the Act and the objective determination of the District Magistrate, Azamgarh was based on intelligent care and deliberation involving judicial review and he had reason to believe and not mere suspicion or doubt regarding the nexus between the illegal activities committed by the gangster Rajendra Yadav to acquire the properties in question in the name of his wife Meena Devi, the appellant. 22. 22. In fact the claim that the properties have not been acquired by commission of any offence or that it was acquired from lawful means or it was an ancestral property can be established only by appraisal of cogent evidence and the aforesaid discussion leads the Court to draw a conclusion that the evidence of a particular standard which was required in this case was not adduced by the appellant. Since the question whether the property attached has been acquired by a gangster as a result of commission of an offence under the Act is a pure question of fact, to adduce reliable evidence in this regard is always required. The District Magistrate, Azamgarh has arrived at an objective determination to find out the nexus between the criminal act of the gangster Rajendra Yadav and the properties acquired by him in the name of his wife Meena Devi, the appellant. The State has discharged its initial burden to prove that Rajendra Yadav, husband of the appellant, was a gangster who has allegedly acquired the properties in question by way of commission of offence in the name of his wife, the appellant but from the perusal of the record it appears that onus shifted upon the claimant to prove that the properties were not acquired by him as gangster as a result of commission of any offence under the Act has not been discharged satisfactorily. In this context, the provisions of sub-section (5) of Section 16 of the Act are desirable to be perused, which are as under: “(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.” 23. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the properties, which were attached, were acquired by gangster Rajendra Yadav, husband of the appellant, in the name of his wife, the appellant by way of commission of offence triable under the Act and the impugned orders are reasoned orders. Hence, keeping in view the facts and circumstances of the case the Court is of the view that the properties, which were attached, were acquired by gangster Rajendra Yadav, husband of the appellant, in the name of his wife, the appellant by way of commission of offence triable under the Act and the impugned orders are reasoned orders. It also appears that relevant materials were supplied to the District Magistrate to have reason to believe that the properties in question were acquired by the gangster, Rajendra Yadav, husband of the present appellant, as a result of commission of any offence triable under the Act and the burden upon the claimant to prove that the properties were not acquired by her as gangster as a result of commission of any offence under the Act has not been discharged sufficiently. From the perusal of record it also appears that the District Magistrate had relevant materials in support of the police report with regard to that the properties in question were acquired by the husband of the present appellant being gangster in the name of the appellant. It also appears that the appellant was not having enough source of income from which she could procure the properties. The enquiry under Section 16 of the Act was performed in accordance with the proceedings and object of the Act and the provisions of Sections 14, 15 and 17 of the Act were also followed in true spirit. 24. In view of the discussions made above, in my view there is no illegality or infirmity in the impugned judgment and order dated 4.5.2023 passed by Special Judge Gangster Act/Additional Sessions Judge, Court No. 4, Azamgarh in Criminal Misc. Case No. 04 of 2023, which is a reference made to the court under Section 16(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, and as such the said order and the order passed by the District Magistrate, Azamgarh dated 11.8.2022 for attachment of the properties of the appellant under Section 14 of the Act as well as the order dated 28.12.2022 are liable to be affirmed and the appeal is liable to be dismissed. Accordingly the aforesaid orders are affirmed and the appeal is dismissed. 25. Copy of this judgment be transmitted to the Court/District Magistrate concerned.