# Abdul Raqib @ Pehtul v. State Of U.P

- **Citation:** (2025) 5 ILRA 1636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Application U/S 483 No. 49 of 2025
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-raqib-pehtul-v-state-of-u-p-53317
- **Pages:** 27

## Headnote

Law-The
Bharatiya
Nagarik
Suraksha Sanhita,2023-Section 529 - The
Code of Criminal Procedure,1973-Section
483--- Whether the remedy under Section 483
Criminal Procedure Code, 1973 (now repealed)
or Section 529 Bharatiya Nagarik Suraksha
Sanhita, 2023, as the case may be, would be
available to the concerned for seeking prayer of
expeditious disposal of the case under Section
16 of Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986--- The 'Court'
while exercising the power under Section 16 of
the Act of 1986, related to the matters
connected with Sections 14 and 15 of the Act of
1986, being an authority under the Act of 1986,
would be inferior Criminal Court in relation to
High Court. Therefore, the application for
expeditious disposal of the proceedings under
Section 16 of the Act of 1986 would be
maintainable under Section 483 Cr.P.C. or
Section 529 BNSS---Petition disposed of with a
direction to the concerned Court to conclude the
proceedings of the case(s) most expeditiously.

Petition disposed of. (E-15)

List of the cases referred-:

## Text

_Characters 0–39,872 of 87,403. This is a partial read: ask again with offset=39872 for what follows._

1636 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate. It may be noted that in the
scheme of subordination carved out in
Chapter II of the Cr. P.C. Executive
Magistracy has not been made subordinate
to the Sessions Judge. It is obviously for the
reason
that
Chapter
II
speaks
of
administrative control and subordination of
the hierarchy of courts classified under
Sec. 6 thereof. Chapter XXIX, XXX and
XXXI relating to appeals, references and
"revisions, transfer of criminal cases
respectively and some other provisions in
the
Cr.
P.C.
deal
with
judicial
subordination of the criminal courts.."

16. The issue can be summarized
like this that since the High Court is
empowered to exercise its superintendence
over the Court of Judicial Magistrates
subordinate to it to ensure the expeditious
and proper disposal of the cases by such
Magistrate but when an order is passed by
an Executive Magistrate or any direction is
required to be issued for expeditious and
proper disposal of a case which is pending
before the Executive Magistrate, the High
Court can't exercise its superintendence
over the courts of Executive Magistrates.

17. Further more, Section 6 of
Criminal Procedure(Section 6 of BNSS as
well) Code defines the Classes of Criminal
Courts in the following manner:

"Classes of Criminal Courts -

Besides the High Courts and the
Courts constituted under any law, other
than this Code, there shall be, in every
State, the following classes of Criminal
Courts, namely:-

(i) Courts of Session;

(ii) Judicial Magistrates of the
first class and, in any metropolitan area,
Metropolitan Magistrates;

(iii) Judicial Magistrates of the
second class; and

(iv) Executive Magistrates."

18.
The
aforesaid
definition
clearly provides a distinction between the
Judicial
Magistrates
and
Executive
Magistrates and since the provisions of
Section 483 Cr.P.C.(Section 529 of BNSS)
have been made applicable to Judicial
Magistrates consequently they are not
applicable to the orders passed by an
Executive Magistrate, hence relying upon
the aforesaid provisions and case laws, it
can be safely concluded that the High
Court under Sec. 529 BNSS (Section 483
Cr.P.C.) is not required to make any
superintendence over the working of a
Executive Magistrate and no direction
under Section 483 Cr.P.C. (Section 529 of
BNSS) can be issued to the Executive
Magistrates where a case under Section
145 Cr.P.C. is pending before it like the
present one as prescribed in Section 483
Cr.P.C.(Section 529 of BNSS).

19. Hence, the present application
is not entertainable before this Court, and is
liable to be rejected and is accordingly,
rejected.
---------
(2025) 5 ILRA 1636
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2025

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 483 No. 49 of 2025
And
Application U/S 483 No. 116 of 2025

Abdul Raqib @ Pehtul ...Applicant
Versus
State Of U.P. ...Opposite Party
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1637
Counsel for the Applicant:
Sukhveer Singh

Counsel for the Opposite Party:
G.A.

Criminal
Law-The
Bharatiya
Nagarik
Suraksha Sanhita,2023-Section 529 - The
Code of Criminal Procedure,1973-Section
483--- Whether the remedy under Section 483
Criminal Procedure Code, 1973 (now repealed)
or Section 529 Bharatiya Nagarik Suraksha
Sanhita, 2023, as the case may be, would be
available to the concerned for seeking prayer of
expeditious disposal of the case under Section
16 of Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986--- The 'Court'
while exercising the power under Section 16 of
the Act of 1986, related to the matters
connected with Sections 14 and 15 of the Act of
1986, being an authority under the Act of 1986,
would be inferior Criminal Court in relation to
High Court. Therefore, the application for
expeditious disposal of the proceedings under
Section 16 of the Act of 1986 would be
maintainable under Section 483 Cr.P.C. or
Section 529 BNSS---Petition disposed of with a
direction to the concerned Court to conclude the
proceedings of the case(s) most expeditiously.

Petition disposed of. (E-15)

List of the cases referred-:

1. Ashok Kumar Dixit Vs St. of U.P., 1987 (34) ACC
164: 1987 ACR 230: AIR 1987 (All) 235 (All HC, FB)

2. Kailash Sahkari Avas Samiti Ltd. Vs St. of U.P.
& ors.; 2012 SCC OnLine All 5288

3. Jangali Pasi Vs St. of U.P.; 2015 SCC OnLine
All 8748

4. Government Appeal No. 6042 of 2010 (St. of
U.P. Vs Nasim Khan & ors.)

5. U.O.I. through the Assistant Director Vs
Kanhaiya Prasad; 2025 SCC OnLine SC 306

6. St. (Union of India) Vs Ram Sharan; (2003)
12 SCC 578
7. Maru Ram Vs Union of India; (1981) 1 SCC
107

8. Kaushalya Rani Vs Gopal Singh; AIR 1964 SC
260,

9. Thakur Das (Dead) by L.Rs. Vs St. of Madhya
Pradesh & anr.; (1978) 1 SCC 27.

10. LIC Vs Nadini J. Shah; (2018) 15 SCC 356

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Avinash Singh Vishen,
Advocate, who assisted the Court on being
asked; Sri Sukhveer Singh, Advocate,
learned
counsel
appearing
for
the
applicant/Abdul
Raqib
@
Pehtul
in
APPLICATION U/S 483 No. 49 of 2025;
Sri Sukh Deo Singh, learned counsel
appearing for the applicant/Rashid Khan in
APPLICATION U/S 483 No. 116 of 2025
and Sri Ajay Kumar Srivastava, learned
AGA as well as Sri Badrul Hasan, learned
AGA-I, who appeared for the State of U.P.

2.
The
applications
have
been
preferred seeking following main relief(s):-

2.1. Main relief(s) sought in
APPLICATION U/S 483 No. 49 of 2025.

"It is, therefore, most respectfully
prayed that the case under section 16(1) of
U.P. Gangster Act, 1986 is pending before
the
Learned
Additional
District
and
Sessions Judge, Fast Track Second/ Special
Judge Gangster Act, Ambedkar Nagar, as
Miscellaneous Case No. 195 of 2023
(Government vs Abdul Raqib @ Pehtul)
since
01.06.2023
may
be
decided
expeditiously within the stipulated time.

Further, this Hon'ble Court may
also direct to the state authorities to provide
some shelter home/accommodate to live in
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
the severe cold by which the life of the
family of applicant along with children
may remain saved until the property of the
applicant is not released."

2.2 Main relief(s) sought in
APPLICATION U/S 483 No. 116 of
2025.

"i. Issue a suitable, order or
direction commanding Learned court below
to decide the proceeding under section 16
(1) UP Gangster and Anti-Social Activities
Act, bearing Criminal Misc. Case No.
4/2023, 'Dr. Rashid Khan. Vs. State of
UP.', currently pending before Learned
Additional Sessions Judge, Court No. 2,
Sultanpur, within such period as may be
stipulated by this Hon'ble Court, in the
interest of justice;"

3. On the objection with regard to
maintainability of the Applications under
Section 483 Cr.P.C., under consideration,
this Court has to answer the following
question.

Whether the remedy under
Section 483 Criminal Procedure Code,
1973 (in short "Cr.P.C.") (now repealed)
or
Section
529
Bharatiya
Nagarik
Suraksha
Sanhita,
2023
(in
short
"BNSS"), as the case may be, would be
available to the concerned for seeking
prayer of expeditious disposal of the case
under Section 16 of Uttar Pradesh
Gangsters and Anti-Social Activities
(Prevention) Act, 1986 (in short "Act of
1986").

4. Learned counsel appearing for the
applicants, in nutshell, submitted that
remedy of Section 483 Cr.P.C. (now
repealed)/Section 529 BNSS would be
available
for
seeking
direction
for
expeditious disposal of the case under
Section 16 of the Act of 1986, as under
Section 16 of the Act of 1986 the decision
as to "whether the attachment of the
property is justified or not", regarding the
property attached by the District Magistrate
in exercise of power under Section 14 has
to be taken by the 'Court' having
jurisdiction to try an offence under the Act
of 1986.

5. On the contrary, learned AGA
submitted that the matter relates to special
Act i.e. Act of 1986 and accordingly, the
remedy under Section 482 Cr.P.C. or
Section 529 BNSS, as the case may be,
would not be available. The only remedy
which could be availed in such type of
cases would be available under Article
226/227 of the Constitution of India.

6. Considered the aforesaid and
perused the record.

7. In order to decide the controversy
involved in these case(s), this Court finds it
appropriate to refer Section 483 Cr.P.C.
(now repealed), Section 529 BNSS, certain
provisions of the Act of 1986 and also the
pronouncements on the issue, which could
be helpful for deciding the issue involved
in the instant case(s), indicated above.

8. Section 483 Cr.P.C. (now repealed),
Section 529 BNSS, 'Objects and Reasons'
of the Act of 1986, 'Preamble of the Act of
1986' and Sections 4, 7, 8, 10, 14, 15, 16,
17, 18, 19 & 20 of the Act of 1986 are
quoted hereunder for ready reference:-

8(a). Section 483 Cr.P.C.

483. Duty of High Court to
exercise
continuous
superintendence
over Courts of Judicial Magistrates.-
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1639
Every High Court shall so exercise its
superintendence over the Courts of Judicial
Magistrates subordinate to it as to ensure
that there is an expeditious and proper
disposal of cases by such Magistrates.

8(b). Section 529 BNSS

529. Duty of High Court to
exercise
continuous
superintendence
over Courts.- Every High Court shall so
exercise its superintendence over the
Courts of Sessions and Courts of Judicial
Magistrates subordinate to it as to ensure
that there is an expeditious and proper
disposal of cases by the Judges and
Magistrates.

8(c). Objects and reason of the
Act of 1986 as observed in the case of
Ashok Kumar Dixit v. State of U.P., 1987
(34) ACC 164: 1987 ACR 230: AIR 1987
(All) 235 (All HC, FB)

Object and reason of the Act.-
Gangsterism
and
anti-social
activities
influenced the State Legislature in making
introduction of such Act. The object and
reason of the Act is that gangsterism and antisocial activities were on the increase in the
state posing threat to lives and properties of
the citizens. The existing measures were not
found effective enough to cope with new
menace. With a view to break the gangs by
punishing the gangsters and to hip their
conspirational designs it was considered
necessary to make special provision for the
prevention of and for coping with gangsters
and anti-social activities in the State.

8(d). Preamble of Act of 1986 as
observed in the case of Ashok Kumar
Dixit v. State of U.P., 1987 (34) ACC
164: 1987 ACR 230: AIR 1987 (All) 235
(All HC, FB)

Preamble of Act.- The Act seeks
to punish declared criminals who have
deliberately chosen the life of crime. The
activities
of
these
professional
perpeterators of organised crimes, violence
and orgy has a far more baneful effect on
the health and morals of the society and its
people. If the activities of such recidivitis
are subjected to same punishment as that
other ordinary criminals, the confidence of
public in the efficacy and efficiency of
State Administration is bound to shake.

8(e). Section 4 of the Act of
1986

4. Special Rules of Evidence.-
Notwithstanding anything to the contrary
contained in the Code or the Indian
Evidence Act, 1872 (1 of 1872) for the
purposes of trial and punishment for
offences under this Act or connected
offences-

(a) the Court may take into
consideration to fact that the accused was-

(i) on any previous occasion
bound down under Section 107 or Section
108 or Section 109 or Section 110 of the
Code; or

(ii) detained under any law
relating to preventive detention; or

(iii) externed under the Uttar
Pradesh Control of Goondas Act, 1970 (Act
No. 8 of 1971) or any other such law;

(b) where it is proved that a
gangster or any person on his behalf is or
has at any time been, in possession of
movable or immovable property which he
cannot satisfactorily account for, or where
his
pecuniary
resources
are
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
disproportionate to his known sources of
income, the Court shall, unless contrary is
proved, presume that such property or
pecuniary resources have been acquired or
derived by his activities as a gangster;

(c) where it is proved that the
accused has kidnapped or abducted any
person, the Court shall, presume that it was
for ransom;

(d) where it is proved that a
gangster has wrongfully concealed or
confined a kidnapped or abducted person,
the Court shall presume that the gangster
knew that such person was kidnapped or
abducted, as the case may be;

(e) the Court may, if for reasons
to be recorded thinks fit so to do proceed
with the trial in the absence of the accused
and record the evidence of any witness,

Provided that the witness may be
recalled for cross-examination if the
accused so desires but recording his
examination-in-chief afresh in presence of
the accused shall not be necessary.

8(f). Section 7 of the Act of 1986

7.
Jurisdiction
of
Special
Courts.-(1)
Notwithstanding
anything
contained in the Code, where a Special
Court has been constituted for any local
area, every offence punishable under any
provision of this Act or any rule made
thereunder shall be triable only by the
Special
Court
within
whose
local
jurisdiction it was committed whether
before or after the constitution of such
Special Court.

(2) All cases triable by a Special
Court, which immediately before the
constitution of such Special Court were
pending before any Court, shall on creation
of such Special Court having jurisdiction
over such cases, stand transferred to it.

(3) Where it appears to any Court
in the course of any inquiry or trial in
respect of any offence that the case is one
which should be tried by a Special Court
constituted under this Act for the area in
which such case has arisen, it shall transfer
such case to such Special Court, and
thereupon such case shall be tried and
disposed of by the Special Court in
accordance with the provisions of this Act:

Provided that it shall be lawful
for the Special Court to act on the evidence,
if any, recorded by the Court in the case in
the presence of the accused before the
transfer of the case under this section :

Provided further that if the
Special Court is of opinion that further
examination of any of the witnesses whose
evidence is already recorded in the case is
necessary in the interest of justice, it may
re-summon any such witness and after such
further examination, cross-examination and
reexamination, if any, as it may permit, the
witness shall be discharged.

(4) The State Government may, if
satisfied that it is necessary or expedient in
the public interest so to do, transfer any
case pending before a Special Court to
another Special Court

8(g). Section 8 of the Act of
1986

8. Power of Special Courts with
respect to other offences.-(1) When trying
any offence punishable under this Act a
Special Court may also try any other
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1641
offence with which the accused may, under
any other law for the time being in force,
be charged at the same trial.

(2) If in the course of any trial
under this Act of any offence, it is found
that the accused has committed any other
offence under this Act or any rule
thereunder or under any other law, the
Special Court may convict such person of
such other offence and pass any sentence
authorised by this Act or such rule or, as
the case may be, such other law, for the
punishment thereof.

8(h). Section 10 of the Act of
1986

10. Procedure and powers of
Special Courts.-(1) A Special Court may
take cognizance of any offence triable by it,
without the accused being committed to it
for trial upon receiving a complaint of facts
which constitute such offence or upon a
police report of such facts.

(2) Where an offence triable by a
Special
Court
is
punishable
with
imprisonment for a term not exceeding
three years or with fine or with both, the
Special
Court
may,
notwithstanding
anything contained in subsection (1) of
Section 260 or Section 262 of the Code, try
the offence in a summary way in
accordance with the procedure prescribed
in the Code and the provisions of Sections
263 to 265 of the Code, shall, so far as may
be, apply to such trial :

Provided that when in the course
of a summary trial under this subsection, it
appears to the Special Court that the nature
of the case is such that it is undesirable to
try in a summary way, the Special Court
shall recall any witnesses who may have
been examined and proceed to rehear the
case in the manner provided by the
provisions of the Code for the trial of such
offence and the said provisions shall apply
to and in relation to a Special Court as they
apply to and in relation to a Magistrate :

Provided further that in the case
of any conviction in a summary trial under
this sub-section, it shall be lawful for a
Special
Court
to
pass
sentence
of
imprisonment for a term not exceeding two
years.

(3) A Special Court may, with a
view to obtaining the evidence of any person
supposed to have been directly or indirectly
concerned in, or privy to an offence, tender a
pardon to such person, on condition of his
making a full and true disclosure of the whole
circumstances within his knowledge relative
to the offence and to every other person
concerned whether as principal or abettor in
the commission, thereof, and any pardon so
tendered shall, for the purposes of Section
308 of the Code, be deemed to have been
tendered under Section 307 thereof.

(4)
Subject
to
the
other
provisions of this Act a Special Court for
the purpose of trial of any offence, have
all the powers of a Court of Session and
shall follow the procedure prescribed in
the Code for the trial of warrant cases by
the Magistrate.

(5) Subject to the other provisions
of this Act every case transferred to a
Special Court under sub-section (3) of
Section 7 shall be dealt with as if such case
had been transferred under Section 406 of
the Code to such Special Court.

8(i). Section 14 of the Act of
1986
1642 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

8(j). Section 15 of the Act of
1986

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.

8(k). Section 16 of the Act of
1986

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 subsection (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 subsection (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
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1643
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. V 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.

8(l). Section 17 of the Act of
1986

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.

8(m). Section 18 of the Act of
1986

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.

8(n). Section 19 of the Act of
1986

19. Modified application of
certain provisions of the Code.-(1)
Notwithstanding anything contained in the
Code every offence punishable under this
Act or any rule made thereunder shall be
deemed to be a cognizable offence within
the meaning of clause (c) of Section 2 of
the Code and cognizable case as defined in
that clause shall be construed accordingly.

(2) Section 167 of the Code shall
apply in relation to case involving an
offence punishable under this Act or any
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
rule made thereunder subject to the
modifications that-

(a) the reference in sub-section (1)
thereof to "Judicial Magistrate" shall be
construed as a reference to " Judicial
Magistrate or Executive Magistrate";

(b) the references in sub-section (2)
thereof to "fifteen days" , "ninety days" and
"sixty days", wherever they occur, shall be
construed as references to "sixty days" , "one
year" and "one year" , respectively;

(c) sub-section (2A) thereof shall be
deemed to have been omitted.

(3) Sections 366, 367, 368 and 371
of the Code shall apply in relation to a case
involving an offence triable by a Special
Court, subject to the modification that the
reference to "Court of Session" wherever
occurring herein, shall be construed as
reference to "Special Court" .

(4)
Notwithstanding
anything
contained in the Code, no person accused of
an offence punishable under this Act or any
rule made thereunder shall, if in custody, be
released on bail or on his own bond unless:-

(a) the Public Prosecutor has been
given an opportunity to oppose the application
for such release, and

(b) where the Public Prosecutor
opposes the application, the Court is satisfied
that there are reasonable grounds for believing
that he is not guilty of such offence and that he
is not likely to commit any offence while on
bail.

(5) The limitations on granting of
bail specified in sub-section (4) are in
addition to the limitations under the Code.

8(o). Section 20 of the Act of
1986

20.
Overriding
effect.-The
provisions of this Act or any rule made
thereunder
shall
have
effect
notwithstanding
anything
inconsistent
therewith contained in any other enactment

9. From the above referred provisions
of the Act of 1986, it is apparent that (i) the
Act is a special statute which has been
enacted for the prevention of and for
coping with gangsterism and anti-social
activities, (ii) the Act is a penal statute and
Section 3 prescribes punishment to be
awarded to a gangster as well as public
servant rendering illegal help or support to
a gangster and (iii) the Act of 1986 is a self
contained code and the same can also be
deduced from the observations made in the
judgment passed in the case of Kailash
Sahkari Avas Samiti Ltd. vs. State of U.P.
and others; 2012 SCC OnLine All 5288
affirmed by the Division Bench of this
Court in the case of Jangali Pasi vs. State
of U.P.; 2015 SCC OnLine All 8748.

10. The relevant paragraphs 18, 29 and
31 of the judgment passed in the case of
Jangali Pasi (supra) are as under:-

"18. The said judgment was cited
before a learned Single Judge raising a
preliminary objection to the maintainability
of the appeal on the strength of the
aforesaid observations. The matter came to
be considered in Criminal Appeal No. 3000
of
2003, Kailash
Sahkari
Awas
Sarniti v. State
of
U.P. learned
Single
Judge upon a consideration of all the
relevant provisions of the Act as well as the
Criminal Procedure Code ruled as under
vide order dated 2.2.2010 to the following
effect:-
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1645

"xxx xxx xxx

I have heard both the sides and
have pondered over rival submissions.
Since the bone of contention between rival
sides require interpretation of a statutory
provision
of
an
enacted
statute,
consideration of the whole of the said
statute seems to be un-eschewable to
foresee legislative intent of the section to
be interpreted and while undertaking that
exercise a glimpse of the Act indicates that
the Act was enacted to contain gangsterism
and anti social activities within the State of
U.P.
which
has
attained
menacing
dimensions. The Act was brought to life on
19.3.1986, on which date it was published
in the U.P. Gazette part one. Section 1 of
the Act mentions it's title and extent of
application, Section 2 provides definitions
and meaning of various words occurring
under the Act. Section 2(f) which is of
some importance to the present controversy
provides that the words and phrases used
but not defined in, the Act but defined
under the Code of Criminal Procedure,
1973 or the Penal Code, 1860 shall have
the respective meanings assigned to them
in those statutes. Section 3 of the Act
provides for penalty for offences under the
Act, whereas section 4 lays down special
rule of evidence to be applied in the trial of
offences under the Act. Sections 5 to 10
contemplates creation of special Courts to
try offences under the Act, eligibility of the
presiding Judge, place of sitting of special
courts and the nature of offences to be tried
and procedure to be followed by it. Without
volumenising, itis recorded that according
to section 10 of the Act Special Judge shall
have the Power of a Session's Judge and
shall follow the same warrant trial
procedure which is to be followed by a
Magistrate unless the offence is punishable
with imprisonment not exceeding three
years, in which case it can try the offence
in a summary way in consonance with
sections 263 to 265 of the code. Section 11
provides for protection to the witnesses
whereas section 12 mentions that the trial
under the Act shall have precedence over
the trial of other cases. Section 13 registers
the power to transfer the cases to regular
Courts by the Special Court if it finds that
the offences being tried by it is not triable
by it. From section Section 14 to section
17, the Act provides for attachment of
property and it's release. Section 14 lays
down that if the District Magistrate has
reason to believe that any property, whether
movable or immovable, possessed by any
person has been acquired by gangsterism as
a result of commission of any offence
under the Act, then the District Magistrate
can order attachment of such property
irrespective of the fact whether cognizance
of such offence has been taken by any
Court or not. Sub-section 14(2) provides
that provisions of Cr.P.C. shall applied
mutatis mutandis to every attachment
carried out under the Act. Section 14(3)
and (4) provides for appointing of an
administrator over the attached property by
the District Magistrate and for police help
to administer such property. Section 15 of
the Act provides for applying for release of
the property by any claimant through an
application made to the District Magistrate
within three months from the date of the
knowledge of attachment. Section 15(2)
enact that if the District Magistrate is
satisfied about the case of the claimant then
he can direct the release of the property
from attachment and thereafter the property
shall be handed over to the claimant.
Terusal of the Section 16 of the Act
indicate that if no representation is made
within the specified period of three months
from the date of the knowledge of
attachment or the District Magistrate does
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
not release the property to the claimant as
is provided under Section 15(2) of the Act
then he (District Magistrate) shall refer the
matter with his report to the Court having
jurisdiction to try the offences under the
Act. Section 16(2) postulates that if the
District Magistrate does not act under
Section 14(1) of the Act to attach the
property, or releases the property under
Section 15(2) of the Act then the State
Government or any person aggrieved by
such refusal or release can make an
application to the Court having jurisdiction
to try an offence under this Act for inquiry
for the purposes of determining whether
any property has been acquired by
gangsterism or not? Pendente lite such
inquiry, the court has been conferred with
the power to order for attachment of such
property as was done in the instant case.
Section 16(3) of the Act, which is in two
parts contemplates in sub-section (a) that
the Court on a reference under sub-section
(1) of Section 16 or on an application under
sub-section (2) of the said section shall
conduct an inquiry and sub-section (b)
provides that on the date so fixed the Court
shall hear the parties, receive evidences
produced by them, take such further
evidences as it considered necessary and
decide whether the property was acquired
by a gangster as a result of commission of
an offence under the Act or not and then
shall pass an order under Section 17 as the
case may be which is necessary in its
opinion. Section 16(4) confers same power
on the Court under the Act which is
possessed by a civil court under Code of
Civil Procedure 1908 in matters of inquiry.
Section 16(5) of the Act legislates that the
burden of proving that the property or any
part thereof has not been acquired by
gangsterism or by commission of any
offence under the Act shall be on the
person claiming the release of the property
irrespective of any provision to the contrary
contained in the Indian Evidence Act.
Section 17 of the Act provides that upon
such an inquiry if the Court finds that the
property was not acquired by a gangster as
a result of commission of any offence
under the Act then the Court shall order for
release of such property to the person from
whose possession it was attached. In any
other case, the Court may make such orders
as it deems fit for disposal of such property
either by attachment, confiscation or
delivery
to
any
person
entitled
to
possession thereof or otherwise. Section 18,
which is the apple of discard between the
rival sides, legislates and provides for
applicability of chapter XXIX of the Code
in an appeal preferred under the Act. For a
clear understanding of the legislative intent,
Sections 17 and 18 of the Act are
reproduced below:-

"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 or order of a Court passed under
the provisions of this Act."

From the two referred statutory
provisions it is abundantly clear that
Sections 14 to 17 of the Act, which deals
with attachment/non attachment or release
5 All. Abdul Raqib @ Pehtul Vs. State of U.P.
1647
of any property in question is analogous to
sections 451, 452, and 457 of the Code. For
a ready reference, the aforesaid provisions
of Cr.P.C. are registered herein below:-

"451. Order for custody and
disposal of property pending trial in certain
cases-When any property is produced
before any Criminal Court during any
inquiry or trial, the Court may make such
order as it thinks fit for the proper custody
of such property pending the conclusion of
the inquiry or trial, and, if the property is
subject to speedy and natural decay, or if it
is otherwise expedient so to do, the Court
may, after recording such evidence as it
thinks necessary, order it to be sold or
otherwise disposal of.

Explanation-For the purposes of
this section, "property" includes-

(a) property of any kind or
document which is produced before the
Court or which is in its custody.

(b) any property regarding which
an of fence appears to have been committed
or which appears to have been used for the
com mission of any offence.

452. Order for disposal of property
at conclusion of trial- (1) When an inquiry or
trial in any Criminal Court is concluded, the
Court may make such order as it thinks fit for
the disposal, by destruction, confiscation or
delivery to any person claiming to be entitled
to possession thereof or otherwise, of any
property or document produced before it or in
its custody, or regarding which any offence
appears to have been committed, or which has
been used for the commission of any offence.

(2) An order may be made under
sub-section (1) for the delivery of any
property to any person claiming to be
entitled to the possession thereof, without
any condition or on condition that he
executes a bond with or without sureties, to
the satisfaction of the Court, engaging to
restore such property to the Court if the
order made; under sub-section (1) is
modified or set aside on appeal or revision.

(3) A Court of Session may,
instead of itself making an order under subsection (1), direct the property to be
delivered to the Chief Judicial Magistrate,
who shall thereupon deal with it in the
manner provided in sections 457, 458 and
459.

(4) Except where the property is
livestock or is subject to speedy and natural
decay, or where a bond has been executed
in pursuance of sub-section (2), an order
made under subsection (1) shall not be
carried out for two months, or when an
appeal is presented, until such appeal has
been disposed of.

(5) In this section, the term
"property" includes, in the case Of property
regarding which an offence appears to have
been committed, not only such property as
has been originally in the possession or
under the control of any party, but also any
property into or for which the same may
have been converted or exchanged, and
anything acquired by such conversion or
exchange,
whether
immediately
or
otherwise.

457. Procedure by police upon
seizure of property-

(1) Whenever the seizure of
property by any police officer; is reported
to a Magistrate under the provisions of this
Code, and such property is not produced
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
before a Criminal Court during an inquiry
or trial, the Magistrate may make such
order as he thinks fit respecting the disposal
of such property or the delivery of such
property to the person entitled to the
possession thereof, or if such person cannot
be ascertained, respecting the custody and
production of such property.

(2) If the person so entitled is
known, the Magistrate may order the
property to be delivered to him on such
conditions (if any) as the Magistrate thinks
fit and if such person is unknown, the
Magistrate may detain it and shall, in such
case, issue a proclamation specifying the
articles of which such property consists,
and requiring any person who may have a
claim thereto, to appear before him and
establish his claim within six months from
the date of such proclamation."

What is noticeable here is that an
order under sections 452 and 453 of the
Code is appealable under section 454
thereof. The special provision has been
enacted under the Act for a solemn purpose
to deter an individual and/or public to
acquire
property
by
commission
of
offences under the Act and thereby to curb
the activities of gangsterism. Attachment
and release of property or any order of such
a nature dealing with disposal of any
property
by
a
court
has
serious
consequences of far reaching effects and it
impinges upon the right to property of an
individual and consequently, under the
code such types of orders are made
appealable under section 454 thereof. For a
ready reference Section 454, Cr.P.C. is
reproduced below:-

"454.
Appeal
against
orders
under section 452 or section 453.- (1) Any
person aggrieved by an order made by a
Court under section 452 or section 453,
may appeal against it to the Court to which
appeals ordinarily lie from convictions by
the former Court.

(2) On such appeal, the Appellate
Court may direct the order to be stayed
pending disposal of the appeal, or may
modify, alter or annul the order and make
any further orders that may be just.

(3) The powers referred to in subsection (2) may also be exercised; by a
Court of appeal, confirmation or revision
while dealing with the case in which the
order referred to in sub-section (1) was
made.

Now, turning towards the Act it is
recorded that the Act is not a self contained
Code. For innumerable aspects of trial
procedure and for many interlocutory
matters it falls back on the Code.