# Ahmad Hussain @ Chhanu v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 12 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-05
- **Case number:** Application U/S 482 No. 10822 of 2023
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahmad-hussain-chhanu-v-state-of-u-p-anr-opp-parties-49549
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 227 - Discharge, Chapter
XXIX
-
Appeals,
The
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 18 -
Appeal - 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, Indian Penal Code, 1860 - Sections
504, 506,353,332.

Preliminary objection regarding maintainability
of application under Section 482 Cr.P.C. -
statutory alternative remedy of appeal under
Section 18 of U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986 - application for
discharge filed under Section 227 of Code -
order passed upon application for discharge
cannot be said to be an order passed under the
provisions of the Act - discharge application
rejected - same is an order passed under the
Code - embargo created vide Section 18 of the
Act not applicable - no provision under Chapter
XXIX of Code to deal with the appeal against
such rejection/discharge application.(Para - 3,
4)

HELD:- Impugned order passed under Section
227 of the Code and not under any of the
provisions of the Act . No provision under
Chapter XXIX of the Code for appeals against
rejection/discharge
applications.
Alternative
remedy of appeal under Section 18 of the Act
does not apply. Applicable for orders passed
under Section 17 of the Act or under any other
section of that Act. Application under Section
482
Cr.P.C.
maintainable.Interim
Prayer
allowed. (Para - 4, 12)

N.B.W. issued stayed until next date of
listing. (E-7)

List of Cases cited:-

## Text

12 All. Ahmad Hussain @ Chhanu Vs. State of U.P. & Anr.
217
charges, considering the materials, placed
through an application moved by the
complainant, is unsustainable in the eyes of
law.

23. In view of the aforesaid
submissions and discussions, it emerges
that the order dated 10-02-2023 has been
passed, taking note of the facts, placed vide
application of the complainant, whereas the
same goes against the provisions of Section
228 of the Code.

24. Consequently, the impugned order
dated 10-02-2023 passed in Sessions Trial
No.1080 of 2022 (State of U.P. Vs.
Sadhana@Gudia) is hereby set aside.

25. The matter is transmitted back to
the Sessions Court concerned to proceed
afresh, in accordance with law.

26. The instant application is allowed
accordingly.
----------
(2023) 12 ILRA 217
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 No. 10822 of 2023

Ahmad Hussain @ Chhanu ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Nadeem Murtaza, Arun Sinha, Wali Nawaz
Khan

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 227 - Discharge, Chapter
XXIX
-
Appeals,
The
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 18 -
Appeal - 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, Indian Penal Code, 1860 - Sections
504, 506,353,332.

Preliminary objection regarding maintainability
of application under Section 482 Cr.P.C. -
statutory alternative remedy of appeal under
Section 18 of U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986 - application for
discharge filed under Section 227 of Code -
order passed upon application for discharge
cannot be said to be an order passed under the
provisions of the Act - discharge application
rejected - same is an order passed under the
Code - embargo created vide Section 18 of the
Act not applicable - no provision under Chapter
XXIX of Code to deal with the appeal against
such rejection/discharge application.(Para - 3,
4)

HELD:- Impugned order passed under Section
227 of the Code and not under any of the
provisions of the Act . No provision under
Chapter XXIX of the Code for appeals against
rejection/discharge
applications.
Alternative
remedy of appeal under Section 18 of the Act
does not apply. Applicable for orders passed
under Section 17 of the Act or under any other
section of that Act. Application under Section
482
Cr.P.C.
maintainable.Interim
Prayer
allowed. (Para - 4, 12)

N.B.W. issued stayed until next date of
listing. (E-7)

List of Cases cited:-

1. Jangali Pasi Vs St. of U.P. & anr. , 2015(6)
ADJ 551 (DB)

2. U.O.I. Vs Prafulla Kumar Samal, (1979) 3 SCC
4
218 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Amit Kapoor Vs Ramesh Chander, (2012) 9
SCC 460

4. Sanjay Kumar Rai Vs St. of U.P. & anr.
(2021) SCC OnLine SC 367

5. Satishchandra Ratanlal Shah Vs St. of Guj. ,
(2019) 9 SCC 148

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Sri Arun Sinha as well as Sri
Nadeem Murtaza, learned counsel for the
petitioner assisted by Sri Wali Nawaz Khan
and Sri Anirudh Singh and Sri Alok Tiwari,
learned A.G.A. for the State-respondents.

2. Learned A.G.A. has raised a
preliminary
objection
regarding
the
maintainability of the petition and has
submitted
that
there
is
a
statutory
alternative remedy of appeal under Section
18 of the Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986
(hereinafter referred to as, "the Act")
against any judgment or order of a court
passed under the provisions of the Act. In
support of his contention he has relied on
the judgment of Division Bench of this
Court passed in the case of Jangali Pasi vs.
State of U.P. & Anr. reported in [2015(6)
ADJ 551 (DB)].

3. Replying to the objection of
maintainability of the application under
Section 482 Cr.P.C., learned counsel for
the petitioner has submitted that provisions
of Chapter XXIX of the Code of Criminal
Procedure (hereinafter referred to as, "the
Code") mutatis mutandis apply to an appeal
under Section 18 of the Act against any
judgment or an order passed by the court
under the provisions of the Act. He submits
that the preliminary objection raised by the
State is misconceived as bare perusal of the
aforesaid Section 18 of the Act shows that
the provisions of Chapter XXIX of the
Code shall apply mutatis mutandis to any
judgment or order passed under the
provisions of this Act. He submits that
intention of the legislature is clear that
appeal lies against any judgment and order
only in the scenario if the same is passed
under the provisions of the Act whereas in
this case the application for discharge has
been filed under Section 227 of the Code
by the accused praying for his discharge
from the alleged offences has been rejected.
He submits that field of discharge and
framing of charge is exclusively covered by
the Code and an order passed upon the
application for discharge under Section 227
of the Code cannot be said to be an order
passed under the provisions of the Act. He
submits that in the case of Jangali Pasi
(supra), the court was considering the
question as to whether an appeal would lie
against an order passed under Section 17 of
the Act relating to the attachment of the
property. The Division Bench has been
pleased to hold that appeal would lie
against the order passed under Section 17
of the Act. He submits that the order passed
under Section 17 of the Act is an order
passed under the provisions of the Act and
there is no provision in the Code regarding
the same and therefore, appeal would be
maintainable against an order under Section
17 of the Act whereas in the case in hand
where the discharge application has been
rejected, the same is an order passed under
the Code and therefore, the embargo
created vide Section 18 of the Act is not
applicable. Section 18 of the Act provides
for filing of the appeal. The said Section 18
of the Act is extracted below:-

"18. Appeal.- The provisions of
Chapter XXIX of the Code shall mutatis
mutandis, apply to an appeal against any
12 All. Ahmad Hussain @ Chhanu Vs. State of U.P. & Anr.
219
judgment or order of a Court passed under
the provisions of this Act."

4. A perusal of Section 18 of the Act
shows that provisions of Chapter XXIX of
the Code apply mutatis mutandis for filing
an appeal against the judgment or order of
a court passed under the provisions of this
Act. The submission of learned counsel for
the applicant appears to have force as
Chapter XIX deals with the appeal which
arise under the orders/judgments passed
under the Act. There is no provision under
Chapter XXIX to deal with filing of an
appeal with regard to the attachment and
consequent refusal rejecting the release
application and, therefore, in the case of
Jangali Pasi (supra), it was held that
against the order refusing to release the
attachment under Section 17 of the Act, the
appeal will lie under Section 18 of the same
Act. In this case, the impugned order has
been passed under Section 227 of the Code.
There is no provision under Chapter XXIX
of the Code to deal with the appeal against
such rejection/discharge application. The
impugned order has been passed under the
Code and not under any of the provisions
of the Act and therefore, the alternative
remedy of appeal under Section 18 of the
Act does not apply. It is clearly applicable
for the orders passed under Section 17 of
the Act or under any other section of that
Act but will not cover the other orders such
as the impugned order passed under the
Code therefore, this Court is of the opinion
that the application under Section 482
Cr.P.C. for the aforesaid reasons is
maintainable.

5. Learned counsel for the petitioner
submits that the F.I.R. of the instant case
bearing
Case
Crime
No.3/2021
was
registered under Section 2/3 of the Act,
P.S. Kotwali, District Sitapur. The said
F.I.R. has been registered on the basis of
the following three cases:-

"1. F.I.R. bearing Case Crime
No.779/2020, under Sections 384, 504, 506
IPC, P.S. Kotwali, District Sitapur in which
charge-sheet has been filed on 31.12.2020.

2. F.I.R. bearing Case Crime
No.780/2020, under Sections 504, 506 IPC,
P.S. Kotwali, District Sitapur in which
charge-sheet bearing No.615/2020 has
been filed on 31.12.2020.

3. F.I.R. bearing Case Crime
No.346/2016, under Sections 332/353 IPC,
P.S. Kotwali, District Sitapur in which
charge-sheet was filed on 21.05.2016."

6. Learned counsel for the petitioner
submits that in Case Crime No.779 of
2020, F.I.R. was registered on 30.12.2020
and within 24 hours, in a very hasty manner
charge-sheet has been filed on the next day
i.e. 31.12.2020. The other case bearing
Case Crime No.780 of 2020, under
Sections 504, 506 IPC was registered on
31.12.2020 and charge-sheet in the said
F.I.R. was filed on the same day within
four hours. Apart from these two cases, the
F.I.R. shown in the gang chart was
registered in the year 2016 bearing Case
Crime No.346/2016, under Sections 353,
332 IPC. The informant of the case was
police personnel namely, Vinay Gautam.
He submits that aforesaid two Case Crime
Nos.779/2020 & 780/2020 have been
registered just to invoke the proceedings
under the Act. He submits that in Case
Crime No.779/2020, the proceedings were
challenged by the applicant via Application
U/S 482 No.2091 of 2022 wherein the
proceedings of Criminal Case No.180 of
2020 were put in abeyance by this Court
vide order dated 26.04.2022 (Annexure-6)
in other Crime No.780/2020, the applicant
and the co-accused persons were acquitted
220 INDIAN LAW REPORTS ALLAHABAD SERIES
by the trial court (Annexure-7). In Case
Crime No.346 of 2016 shown in the gang
chart, applicant has been enlarged on bail.
This Hon'ble Court while passing the
interim
order
dated
26.04.2022
in
Application U/S 482 No.2091 of 2022 (visa-vis Case Crime No.779/2020), this Court
took note of the fact that charge-sheet in
the said case has been filed in a very hastily
manner within 24 hours without complying
the provisions of Section 41-A of the Code.

7. It is further submitted that the gang
chart of the present case has been approved
by number of officers in a hurried manner
on 01.01.2021 i.e. on the very next day of
filing of the charge-sheet in the aforesaid
two cases. The gang chart was presented
before number of officials on the same day
i.e. 01.01.2021 and the same was approved
without application of mind which is
evident from perusal of the gang chart
which shows that a noting has been made
by the Circle Officer that the applicant has
been indulged in business of narcotics. It is
submitted that applicant has never been
involved in any case pertaining to NDPS
Act or Excise Act or any similar Act.

8. He submits that co-accused of this
case Aklakh Ahmad @ Haseen Ahmad
who is shown to be a member in the gang
chart vide Bail Application No.2933/2021
and this Court vide order dated 12.03.2021
while granting bail to the co-accused has
taken a strong note and directed the Circle
Officer to file his personal affidavit as the
charge-sheet was filed within 24 hours.

9. He submits that so far as the
criminal history of 28 cases of the applicant
is concerned, the same has been explained
in para 28 of the petition. He submits that
these are old cases and petitioner has been
acquitted in 22 cases out of 28 cases. He
submits that trial court has erred in
deciding the discharge application on the
basis of extraneous circumstances as
applicant is alleged to have committed
offences along with the slain gangster Atiq
Ahmad and one Guddu Muslim however,
the entire record fails to show even a single
case against the petitioner where Atiq
Ahmad or Guddu Muslim are the coaccused. He has relied on the judgment of
Hon'ble Supreme Court passed in Union of
India v. Prafulla Kumar Samal, [(1979) 3
SCC 4], Amit Kapoor v. Ramesh Chander,
[(2012) 9 SCC 460], Sanjay Kumar Rai v.
State of Uttar Pradesh & Anr. [(2021)
SCC OnLine SC 367], Satishchandra
Ratanlal Shah v. State of Gujarat, [(2019)
9 SCC 148].

10. At the instance of these
judgments, he submits that the Judge while
deciding the discharge application is not to
act as an post-office to hold the charge at
the behest of the prosecutrix. It is submitted
that trial court while considering the
question of framing the charges has
undoubted power to sift and weigh the
evidence and if two views are possible the
trial court will be fully within its right to
discharge the accused. In the case of Amit
Kapoor (supra), the Supreme Court has
held that trial court has to consider the
record of the case. He submits that in the
case of Sanjay Kumar Rai (supra) the
Supreme Court has held that discharge is a
valuable right of the accused and the court
below ought to have examined the fairness
of the criminal investigation and remanded
the matter back to the concerned authority.
In the case of Satishchandra Ratanlal Shah
(supra), it was held that it was the duty of
the court to apply its judicial mind to the
material placed before it and in order to
arrive at a clear conclusion that a prima
facie case has been made against the
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
221
accused, the court must be cautious
that clear decision at this stage will bring
no irreparable harm to the accused. He
submits that the proceedings have been
carried out by the court below in a hasty
manner which is evident from the fact that
application for exemption filed by the
applicant has been rejected and nonbailable warrants have been issued against
him vide order dated 31.10.2023.

11. Learned A.G.A. has opposed
the application seeking stay of order dated
31.10.2023 and prays that he may be
granted four weeks' time to file counter
affidavit.

12. Prayer is allowed.

13. Learned A.G.A. is granted four
weeks' time to file counter affidavit.

14. Thereafter, two weeks' time is
granted to learned counsel for petitioner to
file rejoinder affidavit.

15. List this case on 04.01.2024.

16. On due consideration to the
submissions advanced by the parties,
perusal of the record so also the judgments
of Supreme Court, prima facie case for
interim relief appears to have been made
out.

17. Accordingly, till the next date of
listing, the non-bailable warrants issued
vide order dated 31.10.2023 are stayed.
----------
(2023) 12 ILRA 221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 83 of 2023
Connected with Writ-A No. 9336 of 2019 and
with other cases

Sheeldhar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vinod Kumar Singh, Vivek Srivastava

Counsel for the Respondents:
C.S.C., Ajay Kumar, Ran Vijay Singh

Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 2(3) - New Pension
Scheme, challenged by petitioners on
ground that previous scheme was more
beneficial - Claimed entitlement to old
scheme despite their appointments after
01.04.2005 and challenged GO dated
28.03.2005 - By GO, New Pension Scheme
made compulsory for new recruits who
joined service after 01.04.2005, except
candidates with less than 10 years' service
on that date, option had given to them to
opt for New Pension Scheme in place of
existing scheme
-
Petitioners
entered
service after enforcement of New Pension
Scheme and accepted applicable terms
and conditions of rules and regulations
including pension applicable to Assistant
Teacher
employed
in
Uttar
Pradesh,
cannot claim coverage under old scheme
merely on ground that new scheme is less
beneficial - Challenge to GO, raised after
18 years, is untenable as impugned
scheme is conscious decision with specific
object and suffers from no irrationality -
Once New Scheme was introduced and
provided incumbents entering in service
on or after 01.04.2005 would be governed
under said scheme then said category of
incumbents as matter of right cannot
claim coverage under old scheme, their
pension claims are governed by new rules.
(Para 17, 19, 23, 28)

Writ Petition dismissed. (E-13)