# Ashok Kumar Yadav @ Ashok Kumar v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-23
- **Case number:** Criminal Misc. Writ Petition No. 230 of 2022
- **Bench:** Suneet Kumar, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-yadav-ashok-kumar-v-state-of-u-p-ors-48453
- **Pages:** 7

## Headnote

(i) Criminal Law - Constitution of India,
1950
-
Article
226
-
Explosive
Substances Act, 1908 - Section 4/5,
National Investigation Agency Act, 2008
(duly Amended w.e.f. Dt. 02.08.2019) -
Sections 13,13(i), 22, 22(2)(ii) & 22(4),
National
Investigation
Agency
(Amendment) Act, 2019 - Amended
Schedule: - Writ of Prohibition - to restrain
for
further
proceeding
as
well
as
for
transmittance of record to the court of
competent jurisdiction - sole question of law
that-
as
to
whether
cases
in
which
cognizance has been taken by regular courts
under provision of an Act not included in the
schedule to Act, 2008 are required to be
transferred to the Special Court Act upon
subsequent inclusion of the offence under
schedule to Act of 2008 - held - change of
forum is being procedural law would have
retrospective operation - consequentially writ
petition allowed - direction accordingly.(Para -
13, 22, 25)

Writ Petition Allowed. (E-11)
List of Cases cited:-

## Text

5 All. Ashok Kumar Yadav @ Ashok Kumar Vs. State of U.P. & Ors.
1183

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----------
(2022)05ILR A1183
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE MANISH MATHUR, J.

Criminal Misc. Writ Petition No. 230 of 2022

Ashok Kumar Yadav @ Ashok Kumar
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Avinash Singh, Sameer Kalia

Counsel for the Respondents:
G.A., Gaurav Mehrotra

(i) Criminal Law - Constitution of India,
1950
-
Article
226
-
Explosive
Substances Act, 1908 - Section 4/5,
National Investigation Agency Act, 2008
(duly Amended w.e.f. Dt. 02.08.2019) -
Sections 13,13(i), 22, 22(2)(ii) & 22(4),
National
Investigation
Agency
(Amendment) Act, 2019 - Amended
Schedule: - Writ of Prohibition - to restrain
for
further
proceeding
as
well
as
for
transmittance of record to the court of
competent jurisdiction - sole question of law
that-
as
to
whether
cases
in
which
cognizance has been taken by regular courts
under provision of an Act not included in the
schedule to Act, 2008 are required to be
transferred to the Special Court Act upon
subsequent inclusion of the offence under
schedule to Act of 2008 - held - change of
forum is being procedural law would have
retrospective operation - consequentially writ
petition allowed - direction accordingly.(Para -
13, 22, 25)

Writ Petition Allowed. (E-11)
List of Cases cited:-

1. Securities and Exchange Board of India Vs
Classic Credit Ltd. (2018 vol. 13 SCC 1),

2. Ramesh Kumar Soni Vs St. of M.P. (2013 vol.
14 SCC 696).

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Sameer Kalia, learned
counsel for petitioner, Mr. Shiv Nath Tilhari,
learned Additional Government Advocate for
opposite party no.1 and Mr. Shishir Jain,
learned counsel for opposite parties no.2 to 4.

2. In view of order being proposed to be
passed, notices to opposite party no.5 stand
dispensed with.

3. At the very outset, it may be
indicated that no counter affidavit has been
filed by the opposite parties till date but since
dispute pertains only to applicability of law
without the facts being disputed as such, the
matter is being decided in absence of the
counter affidavit with consent of learned
counsel for parties.

4. Petition has been filed seeking a writ
in the nature of prohibition to restrain further
proceeding in Case Crime No.561 of 2012,
State Versus Virendra Sharma and others
under Section 4/5 Explosive Substances Act,
1908 registered in Police Station- Kotwali
Mahoba, District Mahoba bearing case
no.2796 of 2012 which is pending before
opposite party no.4 i.e. the Chief Judicial
Magistrate, District Mahoba. Further prayer
for direction pertaining to transmittance of
records to the court of competent jurisdiction
at Lucknow has also been sought.

5. Learned counsel for petitioner
submits that the petitioner is conducting the
business of stone crushing and as such was
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
validly and legally permitted and entitled to
conduct blasting operations in the area of
his validly executed mining lease issued by
the State Government. It is submitted for
the said purpose, stocks of explosive were
required to be kept by the petitioner.

6. It is submitted that an FIR bearing
Case Crime No.561 of 2012, under Section
4/5 of Explosive Substances Act, 1908 was
registered against the petitioner and three
others in Police Station Kotwali Mahoba,
District Mahoba on the basis of recovery
memo prepared by the Station House
Officer. The allegation made in the first
information
report
was
that
upon
information being received from the Police
Informer pertaining to a cashe of explosive
being kept in the premises of one Shree
Chandra Mauli Bhardwaj without due
permission and its likely misuse in the
Forthcoming Assembly Election, 2012,
certain recovery was made as a result of
search conducted by the police. It is
submitted that the first information report
was lodged on 11.02.2012 whereafter
charge-sheet was submitted on 15.06.2012
and cognizance was taken by the Chief
Judicial Magistrate on 24.07.2012.

7. Learned counsel for petitioner
submits that at the time of lodging of FIR
and cognizance being taken by the court
concerned, the Explosive Act was not
included in the schedule to the National
Investigation Agency Act, 2008 but during
pendency of trial, the Explosive Act, 1908
was inserted in the National Investigation
Agency
Act
by means
of National
Investigation Agency (Amendment) Act,
2019 (16 of 2019) with effect from 02nd
August 2019. It is further submitted that
subsequently
vide
notification
dated
20.04.2021, the State Government with
concurrence of the High Court designated
the IIIrd Senior Most Court of District and
Sessions Judge, Lucknow as Special Court
having territorial jurisdiction over entire
State of Uttar Pradesh for the trial of all
offences as specified in the schedule
appended to the National Investigation
Agency Act, 2008 (hereinafter referred Act
of 2008).

8. In terms of aforesaid, it has been
submitted that once the Explosive Act,
1908 was inserted into the schedule of the
Act of 2008 and Special Court has been
constituted
vide
notification
dated
20.4.2021, petitioner's trial and records are
required to transmitted to the Special Court
in terms of Section 13 read with Section
22(4) of the Act, 2008.

9. Learned counsel for petitioner
has further elaborated that change of
forum during pendency of trial pertains
to procedural aspect and is therefore
retrospective in nature. As such, even
though the offence is said to have taken
place prior to insertion of Explosive Act
into the schedule of Act, 2008 but the
change of forum created due to the
amending Act of 2019, would have
retrospective operation and therefore the
Court of Chief Judicial Magistrate,
Mahoba would cease to have jurisdiction
which would vest only with Special
Court constituted in terms of the Act of
2008.

10. Learned counsel has placed
reliance upon the judgment rendered by
Hon'ble the Supreme Court in the cases of
Securities and Exchange Board of India
versus Classic Credit Limited reported in
(2018) 13 SCC 1 and Ramesh Kumar Soni
versus State of Madhya Pradesh reported in
(2013)14
SCC
696
to
buttress
his
submission.
5 All. Ashok Kumar Yadav @ Ashok Kumar Vs. State of U.P. & Ors.
1185

11. Learned counsel appearing on
behalf of opposite parties have refuted
submission advanced by learned counsel
for petitioner with the submission that FIR
in the present case was lodged in the year
2012 with cognizance also having been
taken
by
the
court
concerned
on
24.07.2012. It is submitted that at the time
of lodging of FIR and taking of cognizance
by the court concerned, the Explosive Act
had not been included in the schedule to
Act of 2008. It is submitted that once
cognizance of the case was taken in the
year 2012, the amendment incorporating
Explosive Act into the Act of 2008 in the
year 2019 would not have any retrospective
operation since it would pertain to creation
of substantive rights which would not have
any retrospective operation.

12. Learned counsel have also
submitted that Section 22 (4) specifically
provides transfer of cases to Special Court
only in case investigation has been done
under provisions of the Act of 2008 and
since in the present matter, investigation
was not in terms of the Act of 2008, Chief
Judicial Magistrate concerned would be the
competent court and not the Special Court.

13.

Upon
consideration
of
submissions advanced by learned counsel
for parties and perusal of material available
on record, the only question of law required
to be adjudicated is as to whether cases in
which cognizance has been taken by the
regular courts under provision of an Act not
included in the schedule to the National
Investigation
Agency
Act,
2008
are
required to be transferred to the Special
Court Act upon subsequent inclusion of the
offence under schedule to Act of 2008?

14. The provisions pertaining to
jurisdiction of Special Courts and transfer
of pending trials under the Act of 2008
are clearly indicated in Sections 13 and
22 of the said Act which are as follows:

"13. Jurisdiction of Special Courts. -

(1)
Notwithstanding
anything
contained in the Code, every Scheduled
Offence investigated by the Agency shall
be tried only by the Special Court within
whose
local
jurisdiction
it
was
committed.

(2)
If,
having
regard
to
the
exigencies of the situation prevailing in a
State if,-

(a) it is not possible to have a fair,
impartial or speedy trial; or

(b) it is not feasible to have the trial
without occasioning the breach of peace
or grave risk to the safety of the accused,
the witnesses, the Public Prosecutor or a
judge of the Special Court or any of
them; or

(c)it is not otherwise in the interests
of justice, the Supreme Court may
transfer any case pending before a
Special Court to any other Special Court
within that State or in any other State and
the High Court may transfer any case
pending before a Special Court situated in
that State to any other Special Court
within the State.

(3)The Supreme Court or the High
Court, as the case may be, may act under
this section either on the application of
the Central Government or a party
interested and any such application shall
be made by motion, which shall, except
when the applicant is the AttorneyGeneral for India, be supported by an
affidavit or affirmation.

22 Power of State Government to
1[designate Court of Session as] Special
Courts. -
1186 INDIAN LAW REPORTS ALLAHABAD SERIES

(1)The
State
Government
may
2(designate one or more Courts of Session
as) Special Courts for the trial of offences
under any or all the enactments specified in
the Schedule.

(2)The provisions of this Chapter shall
apply to the Special Courts 1[designated]
by the State Government under sub-section
(1) and shall have effect subject to the
following modifications, namely-

(i)references to "Central Government"
in sections 11 and 15 shall be construed as
references to State Government;

(ii)reference to "Agency" in subsection (1) of section 13 shall be construed
as a reference to the "investigation agency
of the State Government";

(iii)reference to "Attorney-General for
India" in sub-section (3) of section 13 shall
be construed as reference to "AdvocateGeneral of the State".

(3) The jurisdiction conferred by this
Act on a Special Court shall, until a Special
Court is 1[designated] by the State
Government under sub-section (1) in the
case of any offence punishable under this
Act, notwithstanding anything contained in
the Code, be exercised by the Court of
Session of the division in which such
offence has been committed and it shall
have all the powers and follow the
procedure provided under this Chapter.

(4) On and from the date when the
Special Court is 1[designated] by the State
Government the trial of any offence
investigated by the State Government under
the provisions of this Act, which would
have been required to be held before the
Special Court, shall stand transferred to that
Court on the date on which it is
1[designated]."

15. Learned counsel for the opposite
parties have laid much emphasis on Section
22(4) of the Act of 2008 to submit that
transfer of pending trials to the Special
Court are required only in case the offence
has
been
investigated
by
the
State
Government Under provisions of this Act.
It
has
been
submitted
that
since
investigation in the current case was not
under provisions of the Act of 2008, there
is no occasion for transfer of trial to Special
Court, which as such would not have
jurisdiction.

16. Section 13 of the Act of 2008
clearly indicates jurisdiction of Special
Courts setup under the Act of 2008 and
begins with a non-obstante clause to the
effect
that
every
scheduled
offence
investigated by the agency shall be tried
only by the Special Court within whose
local jurisdiction it was committed.

17. For the purpose of construing
provisions of Section 13 of the Act of 2008,
it is relevant to indicate that Section
22(2)(ii), clarifies that reference to agency
in Section 13(i) is to be construed as a
reference to the Investigation Agency of
the State Government. As such, it is evident
that investigation can be carried out by any
investigation
agency
of
the
State
Government
and
not
necessarily
the
National Investigation Agency.

18. A bare comprehension of Section
13 of Act of 2008 indicates that for
purposes
of
Special
Court
to
have
jurisdiction,
the
offence
should
be
scheduled and investigated by the Agency.
The term Agency as indicated hereinabove
has already been explained under Section
22(2)(ii) to be an Investigation Agency of
the State Government. Section 13 as such is
clearly demarcated for purposes of trial of
offences and not for the purposes of
investigation of offences. The purport of
Section 13 does not indicate that the
5 All. Ashok Kumar Yadav @ Ashok Kumar Vs. State of U.P. & Ors.
1187
offence should be a scheduled offence as
on the date of investigation. Since Section
13 clearly pertains to trial of offences, the
meaning and import of the said Section can
readily be construed to mean that the
offence investigated by the Agency should
be a scheduled offence as on the date when
the Special Courts are constituted. Giving a
meaning contrary to the one indicated
hereinabove would amount to inserting a
provision which the legislature in its
wisdom has not imported into Section 13 of
the Act of 2008. The maximum of casus
omissus cannot be supplied merely because
a second view is possible.

19. So far as the submission of
learned counsel for opposite parties is
concerned that the transfer of cases to
Special Court can take place only in the
case of any offence investigated under
provision of this Act is concerned,
harmonious construction of Sections 13 and
22(4) of the Act of 2008 would clearly
explain that Section 22(4) relates to
investigation and trial prior to constitution
of Special Courts but once the Special
Courts have been setup, their jurisdiction is
required to be seen in the context of
Section 13 of the Act of 2008. As such, the
aspect of transfer of cases investigated
under provisions of this Act loses its
relevance, since Section 13 of the Act of
2008 clearly indicates that the scheduled
offence investigated by the Agency is to be
seen as on the date of constitution of the
Special Courts, which in the present case
was on 21.04.2021 when the offence was
clearly
a
scheduled
offence
after
amendment being incorporated in 2019.

20. Another aspect of the matter is that
change of forum is an aspect of procedural
law and would have retrospective operation
has enunciated by Hon'ble the Supreme Court
in the case of Classic Credit Limited (supra)
the relevant paragraphs are as follows:-

"49. We will now deal with the legality
of the propositions canvassed, at the hands of
learned counsel for the rival parties. In our
considered
view,
the
legal
position
expounded by this Court in a large number of
judgments including New India Insurance
Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840;
Securities and Exchange Board of India v.
Ajay Agarwal, (2010) 3 SCC 765; and
Ramesh Kumar Soni v. State of Madhya
Pradesh, (2013) 4 SCC 696, is clear and
unambiguous,
namely,
that
procedural
amendments are presumed to be retrospective
in nature, unless the amending statute
expressly or impliedly provides otherwise.
And also, that generally change of "forum" of
trial is procedural, and normally following
the above proposition, it is presumed to be
retrospective in nature, unless the amending
statute
provides
otherwise.
This
determination emerges from the decision of
this Court in Hitendra Vishnu Thakur v. State
of Maharashtra (1994) 4 SCC 602; Ranbir
Yadav v. State of Bihar (1995) 4 SCC 392,
and Kamlesh Kumar v. State of Jharkhand
(2013) 15 SCC 460, as well as, a number of
further judgments noted above.

50. We have also no doubt, that
alteration of "forum" has been considered to
be procedural, and that, we have no hesitation
in accepting the contention advanced on
behalf of the SEBI, that change of "forum"
being procedural, the amendment of the
"forum"
would
operate
retrospectively,
irrespective of whether the offence allegedly
committed by the accused, was committed
prior to the amendment."

21.

The
aforesaid
aspect
of
retrospective operation of procedural law
pertaining to change of forum has also been
enunciated by the Supreme Court in the
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Ramesh Kumar Soni (supra) in the
following manner:

11. In Hitendra Vishnu Thakur v.
State of Maharashtra (1994) 4 SCC 602,
one of the questions which this Court was
examining was whether clause (bb) of
Section 20(4) of the Terrorist and
Disruptive Activities (Prevention) Act,
1987 introduced by an Amendment Act
governing Section 167(2) Cr.P.C. in
relation to TADA matters was in the
realm of procedural law and if so,
whether the same would be applicable to
pending cases. Answering the question in
the affirmative
this Court speaking
through A.S. Anand, J. (as His Lordship
then was), held that Amendment Act 43
of 1993 was retrospective in operation
and that clauses (b) and (bb) of subsection (4) of Section 20 of TADA apply
to
the
cases
which
were
pending
investigation on the date when the
amendment came into force. The Court
summed up the legal position with regard
to the procedural law being retrospective
in its operation and the right of a litigant
to claim that he be tried by a particular
Court, in the following words:

"(i) A statute which affects substantive
rights is presumed to be prospective in
operation unless made retrospective, either
expressly or by necessary intendment,
whereas a statute which merely affects
procedure, unless such a construction is
textually impossible, is presumed to be
retrospective in its application, should not
be given an extended meaning and should
be strictly confined to its clearly defined
limits.

(ii) Law relating to forum and
limitation is procedural in nature, whereas
law relating to right of action and right of
appeal even though remedial is substantive
in nature.

(iii) Every litigant has a vested right in
substantive law but no such right exists in
procedural law.

(iv) A procedural statute should not
generally
speaking
be
applied
retrospectively where the result would be to
create new disabilities or obligations or to
impose
new
duties
in
respect
of
transactions already accomplished.

(v) A statute which not only changes
the procedure but also creates new rights
and liabilities shall be construed to be
prospective in operation, unless otherwise
provided, either expressly or by necessary
implication."

22. From the above aspect as well, it
is apparent that change of forum as in the
present case being part of procedural law,
would have retrospective operation and as
such, the matter is clearly cognizable by the
Special Court constituted under the Act of
2008.

23. Another aspect which requires
mention is that the Special Courts have
been setup for speedy disposal of offences
pertaining to the Acts indicated in the
schedule. As such, also it would be prudent
that the Special Court should hear matters
relating to offences incorporated in the
schedule to the Act of 2008.

24. Considering the aforesaid, it is
evident that in the present case offence
being related to a scheduled offence as on
the date of constitution of Special Court is
required to be heard by the Special Court
created under the Act of 2008.

25. Consequently, the writ petition
succeeds and is allowed issuing a writ in
the nature of Prohibition, restraining the
opposite
party
no.4
(Chief
Judicial
Magistrate, Mahoba) for proceeding further
5 All. Anmolakram & Ors. Vs. State of U.P. & Ors.
1189
in Case No.2796 of 2012, pertaining to
Case Crime No.561 of 2012, Section 4/5
Explosive Substances Act, 1908, Police
Station Kotwali Mahoba, District Mahoba,
bearing Case No.2796 of 2012 pending
before Court of Chief Judicial Magistrate-
Mahoba.

26. A further writ in the nature of
mandamus is issued commanding opposite
party
no.3
(Sessions
Judge,
District
Mahoba) to transmit the relevant records of
case no.2796 of 2012 to the Special Court
constituted under the National Investigation
Agency Act, 2008 at Lucknow.

27. The Registry is directed to
circulate the order to the District Judges
after obtaining approval from Hon'ble the
Chief Justice.
----------
(2022)05ILR A1189
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.03.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SAURABH LAVANIA, J.

Criminal Misc. Writ Petition No. 1087 of 2022

Anmolakram & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Surya Kant Tripathi

Counsel for the Respondents:
G.A.

(i)
Criminal
Law
-
Constitution
of
India,1950 - Article 226 - UP Control of
Goondas Act, 1970 - Sections 2(b)(i), 3 &
3(1) - Indian Penal Code,1860 - Sections
153, 153-B & 294 - Writ filed against the
Show Cause Notice issued under Goondas Act,
only on the basis of two criminal cases exist
against the accused - preliminary objection -
writ petition not maintainable being premature -
matter is still under consideration - remedy of
appeal available - no plea of 'lack of jurisdiction'
- writ petition is dismissed on the ground of
availability of alternative remedy.(Para - 8)

Writ Petition Dismissed. (E-11)

List of Cases cited:-

1. Executive Engineer, Bihar St. Housing Board
Vs Ramesh Kumar Singh (1996 vol. 1 SCC 327),

2. Kabir Chawla Vs St. of U.P .& ors. (1994
Suppl. Vol. 1 SCC 274),

3. Ballabh Chaubey Vs Additional District
Magistrate Mathura & anr. (1997 All.L.J. 1630),

4. N. K. Bapna Vs U.O.I. (1992 vol. 4 JT 49),

5. St. of Tamil Nadu Vs P K Shamsuddin (1992
vol. 4 JT 179),

6. Subhash Mujimal Gandhi Vs L. Miningliana
(1994 vol. 6 SCC 14),

7. Raja Vs St. (1972 All. L. J. 537),

8. Harsh Narain Vs District Magistrate (1972
All.L.J. 762).

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

1. The show-cause notices issued by
the Additional District Magistrate, Sitapur,
Respondent 2 herein, under Section 3 (1) of
the Uttar Pradesh Control of Goondas Act,
1970 (for short the 'Act') are under
challenge in the present writ petition.

2. Ms. Rupa Mishra, Advocate
holding brief of Shri Suryakant Tripathi,
the learned counsel for the Petitioners has
contended that the notices have been issued
on the basis of two criminal cases; it is
contended that Section 2(b)(i) defines