# Chhote Lal v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-26
- **Case number:** Criminal Appeal No. 917 of 2022
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-lal-v-state-of-u-p-ors-50174
- **Pages:** 7

## Headnote

Criminal Law - U.P. Gangster & Anti-social
Activities (Prevention Act), 1986-Section
18-Appellant was issued show-cause notice u/s
14 (1) of the Act- Appellant prayed for release
of vehicle with relevant paper and source for
purchasing the alleged tractor-tractor not
released and matter was referred Special Judge
Gangster
Act-Application
rejected-ownership
was not in dispute-only dispute is source of
purchase-explained but not considered-court
should
have
considered
the
question
of
entitlement-prima facie-tractor not purchased
from the sources acquired as a member of
gangster-source of money fully established.

Appeal allowed. (E-9)

List of Cases cited:

Badan Singh @ Baddo Vs St. of U.P. & ors. 2002
Crl. L.J. 1392

## Text

5 All. Chhotey Lal Vs. State of U.P. & Ors.
1313
which suggested otherwise, the trial court was
at least duty bound to look into the same while
forming prima facie opinion and to see as to
whether 'much stronger evidence than mere
possibility of their (i.e. appellants) complicity
has come on record. There is no satisfaction of
this nature. Even if we presume that the trial
court was not apprised of the same at the time
when it passed the order (as the appellants
were not on the scene at that time), what is
more troubling is that even when this material
on record was specifically brought to the notice
of the High Court in the Revision Petition filed
by the appellants, the High Court too blissfully
ignored the said material. Except reproducing
the discussion contained in the order of the trial
court and expressing agreement therewith,
nothing more has been done. Such orders
cannot stand judicial scrutiny."

10. The facts of the case in hand are
almost identical to Brijendra Singh case
(Supra). The CCTV footage of Koram Mall,
Thane establishes the presence of the revisionist
at a different place faraway from the place of
occurrence at the relevant point of time. The
two prosecution witnesses the mother and
brother of injured have duly identified the
revisionist in the CCTV footage. So this piece
of evidence which is part of investigation fully
contradict the testimony of the witnesses
regarding complicity of the revisionist in the
incident. The learned trial court has failed to
appreciate the matters collected during the
course of investigation regarding the presence
of the accused at a place faraway from the place
of occurrence. So the impugned order has been
passed in a cavalier manner and it does not
fulfill the test as laid down by the Apex Court.
The learned trial court has relied on the
statement of Usha Devi (P.W.-3) and Ashish
Kumar (P.W.-4) while these witnesses have
verified the identity of the revisionist accused in
the CCTV footage of Korum Mall, Thane. For
exercising the powers U/s 319 Cr.P.C. there
must be strong and cogent evidence showing
the complicity of the accused which is more
than that of prima-facie case.

11. Considering the entire facts, evidence
and material on record, it appears that there is
no strong and cogent reasons to summon the
revisionists-accused to face trial in exercise of
powers U/s 319 Cr.P.C. While deciding the
application U/s 319 Cr.P.C. the learned trial
court has failed to appreciate the entire facts,
evidence and other material available on record.
The court below has also failed to record the
degree of satisfaction which is required to
summon an accused U/s 319 Cr.P.C. The
degree of satisfaction is not one of prima-facie
case. Consequently, trial court has failed to
exercise its power in accordance with
parameters laid down by the Apex court in a
catena of decisions. The impugned order is not
sustainable in the eye of law and is liable to be
set aside.

12. In view of the above discussion, the
impugned order suffers from material illegality
and is not sustainable in the eye of law.

13. The revision is allowed and the
impugned order dated 23.12.2021is hereby set
aside.

----------
(2023) 5 ILRA 1313
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.04.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 917 of 2022

Chhote Lal ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vipin Kumar Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - U.P. Gangster & Anti-social
Activities (Prevention Act), 1986-Section
18-Appellant was issued show-cause notice u/s
14 (1) of the Act- Appellant prayed for release
of vehicle with relevant paper and source for
purchasing the alleged tractor-tractor not
released and matter was referred Special Judge
Gangster
Act-Application
rejected-ownership
was not in dispute-only dispute is source of
purchase-explained but not considered-court
should
have
considered
the
question
of
entitlement-prima facie-tractor not purchased
from the sources acquired as a member of
gangster-source of money fully established.

Appeal allowed. (E-9)

List of Cases cited:

Badan Singh @ Baddo Vs St. of U.P. & ors. 2002
Crl. L.J. 1392

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard Mr. Vipin Kumar Mishra,
learned counsel for the applicant, Mr.
Vinay Kumar Shahi, learned AGA for the
State and perused the material available on
record.

2. By means of this criminal appeal
under Section 18 of the U.P. Gangster &
Anti-social Activities (Prevention Act),
1986, (hereinafter referred as Gangster Act)
the appellant has challenged order dated
05.04.2021 passed by learned District
Magistrate, Lucknow under Section 14 (1)
of the U.P. Gangster & Anti-social
Activities (Prevention Act), 1986 whereby
the District Magistrate issued show cause
notice to the appellant. The appellant
prayed for release of vehicle in question
along with relevant paper and source for
purchasing of alleged tractor but the
District Magistrate Lucknow did not
release the tractor and by means of order
dated 11.09.2021 the District Magistrate,
Lucknow referred the matter to the learned
Special Judge Gangster Act/Additional
Sessions Judge, Lucknow under Section 16
(1) of the U.P. Gangster & Anti-social
Activities (Prevention Act), 1986, which
was registered as Criminal Misc. Case No.
659 of 2021 under Section 16 (2) of the
Gangster Act. Learned Sessions Judge after
conducting the enquiry passed the order
dated 17.02.2022 under Section 17 of the
U.P. Gangster & Anti-social Activities
(Prevention Act), 1986 and rejected the
application of the appellant. The appellant
has further challenged the judgment and
order dated 17.02.2022 passed by learned
Special Judge Gangster Act/Additional
Sessions Judge, Lucknow whereby the
application, for release of the tractor in
favour of the appellant, has been rejected.
Being
aggrieved
with
the
aforesaid
impugned
orders,
the
appellant
has
preferred this criminal appeal.

3. Brief facts of the case are that the
applicant is owner of Tractor No. U.P.32
LR
0454,
Chassis
No.
MEA11FA1KK2271719,
Engine
No.
S33411404, which was purchased on
21.02.2020 from Santosh Service Station,
Sitapur Road, Itaunja, Lucknow to the tune
of Rs.5,15,000/-. Prior to obtaining Tractor,
the applicant had given Rs.1,00,00/- from
his account in cash to Santosh Service
Station, Sitapur Road, Itaunja, Lucknow on
21.02.2020 and for the remaining amount,
equal instalment to the tnue of Rs.20,000/-
per month was fixed and the same was
repaid to the dealer. All the aforesaid
amount was debited from Account No.
38937795036 of State Bank of India. It is
5 All. Chhotey Lal Vs. State of U.P. & Ors.
1315
further alleged that on 25.03.2021 the
Station House Officer, Police Station
Itaunja wrote a letter to S.P. Lucknow to
attach the Tractor of appellant bearing No.
U.P.32
LR
0454,
Chassis
No.
MEA11FA1KK2271719,
Engine
No.
S33411404 under Section 14 (1) of the U.P.
Gangster Act. The S.P. Lucknow on
26.02.2021 forwarded the letter to the
District Magistrate Lucknow for further
direction to attach the said property of the
appellant stating therein that four cases i.e.
(i) Case Crime No. 10 of 2013, under
Sections 402/211 IPC, (ii) Case Crime No.
133 of 2014, under Sections 457, 380 and
411 IPC, and (iii) Case Crime No. 176 of
2014, under Sections 457, 380, 411 IPC
and (iv) Case Crime No. 95 of 2015, under
Sections 2/3 of the U.P. Gangster Act are
pending
against
the
appellant.
Consequently, on the basis of four cases,
the District Magistrate, Lucknow took
cognizance and issued a show cause notice
to the appellant vide order dated 5.4.2021.

4. It is further submitted that earlier
on 16.11.2019 the appellant sold the land
bearing Gata No. 1727/1 measuring area
0.0400 hectare and land Gata No. 1727/2
measuring 0.9670 situated at Village
Shivpuri, B.K.T. Lucknow to Alok Kumar
Verma and he had received two cheques of
Rs.12,00,000/-. The said amount was
credited in the account of appellant on
21.11.2019 and 04.01.2020 by cheque No.
136176 and 136177. The aforesaid Tractor
was purchased by the appellant by earning
of the aforesaid amount.

5. Pursuant to show cause notice of
District Magistrate, Lucknow, the appellant
had submitted reply stating therein that the
appellant had purchased the said Tractor
UP32 LR 0454 from Santosh Service
Station, Sitapur Road, Itaunja, Lucknow on
21.02.2020 and the same was registered on
04.09.2020. The tractor was purchased to
the tune of Rs.5,15,000/- He had given
Rs.1,00,000/- on 21.02.2020 in cash and for
the remaining amount, equal installment to
the tune of Rs.20,000/- per month was
fixed and the same was repaid to the dealer.
All the aforesaid amount was debited from
Account No. 38937795036 of State Bank
of India. Despite of it, learned District
Magistrate, Lucknow passed the order of
attachment of aforesaid Tractor vide order
dated 11.09.2021 and seized the same in
police station concerned. After seizing the
vehicle
in
question,
the
appellant
approached before the learned Special
Judge, Gangster Act/Additional Sessions
Judge, Lucknow by means of Criminal
Misc. Case NO. 659 of 2021 under Section
14 (1) of the U.P. Gangster & Anti-social
Activities (Prevention) Act, 1986 the
learned trial court rejected the case of the
appellant and affirmed the order of learned
District Magistrate.

6. The contention of learned counsel
for the appellant is that the appellant has
been falsely implicated in the present case.
The applicant regularly deposited the
installment of the vehicle in question.
Further contention is that the source from
whom, the vehicle in question was
purchased by the applicant, is explained by
the appellant before the District Magistrate
as well as before Special Judge, but without
recording any finding, the impugned orders
has been passed, which is illegal, improper
and against the material available on
record. Further contention is that the
vehicle in question was purchased by the
applicant with valid source, therefore, the
provision of Section 14 (1) will not be
applicable in the present case. Further
contention is that from perusal of order
passed by District Magistrate, Lucknow as
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the trial court, it is clear that the
impugned orders have been passed without
application of judicial minds as well as well
as material available on record. Further
contention is that during course of
investigation, the investigating without
collecting any cogent piece of evidence,
directly link the applicant to the alleged
crime, therefore, the impugned order is
liable to be quashed. Further contention is
that unless the seized vehicle is released in
favour of the applicant, he will be seriously
prejudiced and there is no useful purpose to
keep the vehicle during pendency of trial,
hence, the applicant is ready to give the
sureties for releasing the vehicle.

7.

Opposing
the
submissions
advanced by learned counsel for the
applicant, on the other hand, learned AGA
vehemently opposed the prayer for release
of the vehicle and has submitted that the
District Magistrate as well as the trial court
have rightly passed the impugned, which is
just and proper and does not suffer from
any illegality or infirmity.

8. I have considered the rival
submissions advanced by learned counsel
for the parties and perused the material
available on record.

9. To deal with the issue involved in
the present writ petition, the discussion of
provisions of Act, 1986, Section 14 to 18 is
essential and same is reproduced as under:-

14. Attachment of property. -
(1) If the District Magistrate has reason to
believe
that
any
property,
whether
moveable or immovable, in possession of
any person has been acquired by a gangster
as a result of the commission of an offence
triable under this Act, he may order
attachment of such property whether or not
cognizance of such offence has been taken
by any Court.

(2) The provisions of the Code
shall, mutatis mutandis apply to every such
attachment.

(3)
Notwithstanding
the
provisions of the Code the District
Magistrate may appoint an Administrator
of any property attached under subsection
(1) and the Administrator shall have all the
powers to administer such property in the
best interest thereof.

(4) The District Magistrate may
provide police help to the Administrator for
proper and effective administration of such
property.

15. Release of property. - (1)
Where any property is attached under
Section 14, the claimant thereof may within
three months from the date of knowledge of
such attachment make a representation to
the
District
Magistrate
showing
the
circumstances in and the sources by which
such property was acquired by him.

(2) If the District Magistrate is
satisfied about the genuineness of the claim
made under sub-section (1) he shall
forthwith
release
the
property
from
attachment and thereupon such property
shall be made over to the claimant.

16. Inquiry into the character
of acquisition of property by Court.- (1)
Where no representation is made within the
period specified in sub-section (1) of
Section 15 or the District Magistrate does
not release the property under sub-section
(2) of Section 15 he shall refer the matter
with his report to the Court having
jurisdiction to try an offence under this Act.
5 All. Chhotey Lal Vs. State of U.P. & Ors.
1317

(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
necessary, decide whether the property was
acquired by a gangster as a result of the
commission of an offence triable under this
Act and shall pass such order under Section
17 as may be just and necessary in the
circumstances of the case.

(4) For the purpose of inquiry
under sub-section (3) the Court, shall have
the power of a Civil Court while trying a
suit under the Code of Civil Procedure,
1908 (Act No. 5 of 1908), in respect of the
following matters, namely :-

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b) requiring the discovery and
production of documents;

(c)
receiving
evidence
on
affidavits;

(d) requisitioning any public
record or copy thereof from any Court or
office;

(e)
issuing
commission
for
examination of witness or documents;

(f) dismissing a reference for
default or deciding it ex parte

(g) setting aside an order of
dismissal for default or ex parte decision.

(5) In any proceedings under this
section, the burden of proving that the
property in question or any part thereof was
not acquired by a gangster as a result of the
commission of any offence triable under
this Act, shall be on the person claiming the
property,
anything
to
the
contrary
contained in the Indian Evidence Act, 1872
(Act No. 1 of 1872), notwithstanding.

17. Order after inquiry. - If
upon such inquiry the Court finds that the
property was not acquired by a gangster as
a result of the commission of any offence
triable under this Act it shall order for
release of the property of the person from
whose possession it was attached. In any
other case the Court may make such order
as it thinks fit for the disposal of the
property by attachment, confiscation or
delivery to any person entitled to the
possession thereof, or otherwise.
1318 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

10. In the present case, the ownership
of the said vehicle was not in dispute at all.
The only dispute is that the source, from
which the applicant purchased the vehicle
in question explained by the applicant, has
not been considered by the District
Magistrate as well as Special Judge.
Consequently, once the prayer before the
court below was made for release of the
said vehicle and the applicant has shown
the source of income from which he
purchased the vehicle in question, the Court
should have considered only the question
of entitlement of possession.

11. In the case of Badan Singh alias
Baddo Vs. State of U.P. & others 2002
Crl. L.J. 1392, a learned Single Judge
observed as follows:

"...... There
must
be
nexus
between his criminal act and the property
acquired by him. His mere involvement in
any offence is not sufficient to attach his
property. In other words, what is necessary
to find is whether his acquisition of
property was as a result of commission of
any offence enumerated in the Act being a
member, leader or organizer of a gang. One
might have committed several offences, but
if the property acquired by him was with
the aid of his earning from legal source, no
action under S. 14 of the Act can be taken
against him."

12. The aforesaid view certainly
support the contention of the learned
counsel for the applicant that no useful
purpose will be served in keeping the
vehicle detained at the police station itself.

13. Prima facie, it comes out that the
tractor purchased by the appellant has not
been purchased from the sources acquired
as a member of gangster and the appellant
has fully established his source of money
from where the aforesaid tractor has been
purchased.

14. In view of the aforesaid
discussion, the instant criminal appeal is
hereby allowed. The trial court as well as
District Magistrate Lucknow is hereby
directed that the vehicle in question i.e., the
tractor of appellant bearing No. U.P.32 LR
0454,
Chassis
No.
MEA11FA1KK2271719,
Engine
No.
S33411404 shall be released in favour of
the appellant immediately subject to the
following conditions:-

1. He shall produce the original
registration certificate, insurance paper
before the concerned Police Station which
shall be verified properly and true attested
copies thereof.

2. He shall execute a bond
with
two
solvent
sureties
to
the
satisfaction
of
the
Chief
Judicial
Magistrate concerned.

3. He shall keep the vehicle
insured at all times till the conclusion of the
trial and produce the Insurance Certificate
before the Trial Court as and when
required; he must satisfy the Court that he
is the registered owner of the vehicle.

4. He shall not change the colour
or any part of the engine and chassis
number of the vehicle.
5 All. Kamal Singh Vs. State of U.P.
1319

5. He shall produce the vehicle
either before the Court or before such other
authorities as the Court may direct.

6. He will not transfer the vehicle
to anybody else nor possession of the same
be parted with until disposal of the case.

7. He shall not allow the vehicle
to be used in the commission of any
offence.
----------
(2023) 5 ILRA 1319
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1496 of 1995

Kamal Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Mahesh Kumar Kuntal, Sri R. Bhargava

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860
- Section 307-conviction- 3 years of
rigorous imprisonment- informant submitted
a written report -he was witness in a case
relating to murder of Sohan singh-accused
threatened him -two gun shots fired at the
informant and on the chest of Rohan Singhmere use of lethal weapon is sufficient to
invoke
the
provision
of
sec.
307-not
necessary that attack should result in an
injury-prosecution proved beyond reasonable
doubt the charge u/s 307 IPC-more than 32
years have passed since the offence was
committed-no criminal history produced by
prosecution-punishment
reduced
to
two
years rigorous imprisonment.
Appeal partly allowed. (E-9)

List of Cases cited:

1. Chimanbhai Jagabhai Patel Vs St. of Guj.,
(2009) 11 SCC 273

2. St. of Maharashtra Vs Kashirao, (2003) 10
SCC 434,

3. Prakash Chandra Yadav Vs St. of Bihar,
(2007) 13 SCC 134

4. St. of M.P. Vs Kedar Yadav, 2011 (1) SCC (Cri)
108

5. Ranjeet Kumar Ram Vs St. of Bihar, 2015 SCC
OnLine SC 500

6. Ram Bali Vs St. of U.P., AIR 2004 SC 2329

7. Dayal Singh & anr. Vs St. of Uttaranchal,
(2012) 8 SCC 263

(Delivered by Hon'ble Surendra Singh-I, J.)

1. This criminal appeal has been
instituted against the judgment and order
dated 02.09.1995 passed by the VI
Additional Sessions Judge, Mathura in
Sessions Trial No. 94 of 1992 (State vs.
Ratan Singh & others) arising out of Case
Crime No.138 of 1990, under Sections 307
& 506 IPC Police station Farah, District
Mathura. By the impugned judgment and
order the trial court convicted appellant
Kamal Singh under Section 307 IPC and
sentenced him to three years rigorous
imprisonment. He was acquitted of the
charge under section 506 IPC.

2. The prosecution story in brief is
that informant Shiv Singh s/o Than Singh
r/o Mahuan, Police Station Farah submitted
a written report dated 21.07.1990 in Police
Station Farah, Mathura to the effect that he
is a witness in the case relating to murder
of Sohan Singh. On account of which