# Danish Khan v. State of U.P. & Anr

- **Citation:** (2025) 4 ILRA 733
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-21
- **Case number:** Application U/S 482 No. 8370 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/danish-khan-v-state-of-u-p-anr-53259
- **Pages:** 6

## Headnote

Criminal Law - The Prevention of MoneyLaundering Act, 2002 - Section 44 (1) -
Indian Penal Code, 1860 - Sections 419,
420, 467, 468, 471 & 120-B - Code of
Criminal Procedure, 1973 - Sections 323 &
325 - Transfer of case - Validity - ED filed
Complaint before Sessions Judge, based
on FIR lodged by ATS for offences -
Applicant is accused in said FIRs but not
named in ED complaint - Case was
committed
to
Sessions
Court
on
03.02.2016, later transferred to Special
PMLA Court upon its creation - Applicant's
plea to transfer trial from Special PMLA
Court to Magistrate rejected - Even if
offence exceeds Magistrate's sentencing
powers, Magistrate must conduct trial,
record evidence and if higher sentence is
warranted, refer case to Chief Judicial
Magistrate for committal to Sessions
Court - Thus, trial by Magistrate does not
bar maximum punishment under law -
Applicant's claim that trial by Magistrate
limits punishment to seven years is
misconceived and transfer of trial to
Special Court does not cause prejudice -
Impugned order lacks merit, dismissed.
(Para 3, 4, 5, 14, 15, 17)

Application dismissed. (E-13)

List of Cases cited:

## Text

4 All. Danish Khan Vs. State of U.P. & Anr.
733
such, as would persuade a reasonable
person to dismiss and condemn the factual
basis of the accusation as false?

3. Whether the material relied
upon by the accused, has not been refuted
by the prosecution/complainant; and/or
that the material is such, that it cannot be
justifiably
refuted
by
the
prosecution/complainant?

4. Whether proceeding with the
trial would result in an absuse, of process
of the Court and hence, would not serve the
end of Justice?"

26. It is trite law that it would not
only be sufficient for the court to look into
the averments made in the first information
report/complaint alone to find out whether
the necessary ingredients to constitute the
alleged offence are disclosed, but, the court
owes a duty to look into the other attending
circumstances emerging from the record of
the case over and above the averments and
if it is required, the court with due care and
caution, would try to read in between the
lines. So far as the present case is
concerned,
the
background
of
the
circumstances indicates that the allegations
levelled in the first information report,
seem to be with a motive to wreaking
vengeance and malafide.

27. Accordingly, this court finds that
the material, which is relied upon by the
applicants/accused persons, is sound and
reasonable and the material, which is
placed, would persuade a reasonable person
to dismiss and condemn the factual basis.
Further, even the prosecution has not
refuted the specific pleadings and grounds
raised for quashing of the criminal
proceedings against the applicants in the
Counter Affidavit and therefore, this court
is of the considered opinion that the trial
would result in a gross abuse of process of
the law and would not serve the ends of
justice.

28. In view of the aforesaid
submissions and discussions, there is
sufficient ground for quashing of the
impugned summoning order as well as the
entire criminal proceedings of the case.

29. Consequently, the whole criminal
proceedings including the impugned orders
dated 19.12.2007 and 22.7.2013 passed by
the learned Chief Judicial Magistrate
Lucknow in Case No. 17162/2007, State Vs
Ramesh Kumar Srivastava and Others, as
well as the impugned Chargesheet No.
202/207 dated 18.12.2007 under Section
325 and 506 I.P.C., Case Crime no.
77/2007,
Police
Station-Kotwali
Hazratganj, district-Lucknow, are hereby
quashed.

30. Resultantly, the application under
section 482 Cr.P.C. is allowed.

31. The registry is directed to send a
copy of this order to the trial court
concerned, forthwith.
----------
(2025) 4 ILRA 733
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.04.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 8370 of 2024

Danish Khan ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Anuuj Taandon
734 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., Kuldeep Srivastava, Rohit Tripathi

Criminal Law - The Prevention of MoneyLaundering Act, 2002 - Section 44 (1) -
Indian Penal Code, 1860 - Sections 419,
420, 467, 468, 471 & 120-B - Code of
Criminal Procedure, 1973 - Sections 323 &
325 - Transfer of case - Validity - ED filed
Complaint before Sessions Judge, based
on FIR lodged by ATS for offences -
Applicant is accused in said FIRs but not
named in ED complaint - Case was
committed
to
Sessions
Court
on
03.02.2016, later transferred to Special
PMLA Court upon its creation - Applicant's
plea to transfer trial from Special PMLA
Court to Magistrate rejected - Even if
offence exceeds Magistrate's sentencing
powers, Magistrate must conduct trial,
record evidence and if higher sentence is
warranted, refer case to Chief Judicial
Magistrate for committal to Sessions
Court - Thus, trial by Magistrate does not
bar maximum punishment under law -
Applicant's claim that trial by Magistrate
limits punishment to seven years is
misconceived and transfer of trial to
Special Court does not cause prejudice -
Impugned order lacks merit, dismissed.
(Para 3, 4, 5, 14, 15, 17)

Application dismissed. (E-13)

List of Cases cited:

1. Vijay Madan Lal Chaudhary Vs U.O.I.: (2023)
12 SCC 1, (Para 264)

2. Rana Ayyub Vs Directorate of Enforcement,
(2023) 4 SCC 357, (Para 28, 30, 31)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Anuuj Taandon, the
learned counsel for the applicant and Sri
Kuldeep Srivastava, the learned counsel for
the respondent-Directorate of Enforcement.

2. By means of the instant application
filed under Section 528 BNSS, the
applicant has challenged validity of an
order dated 03.07.2024 passed by the
Special Judge, Anti Corruption, CBI West/
ED, Lucknow in complaint No. 2/2025
whereby an application filed by the
applicant for transferring the case from
Special Judge under PMLA Act to the
Court of Magistrate has been rejected.

3. On 28.03.2014 the Directorate of
Enforcement filed complaint no. 1/2014
arising out of ECIR/15/PMLA/LZO/2012
in the Court of Session Judge, Lucknow.
The aforesaid complaint has been filed
against seven persons but the applicant has
not been made an accused in the complaint.
The complaint has been filed on the basis
of scheduled offences regarding which
FIRs No. 1/2011, 2/2011 and 3/2011 have
been lodged by Anti Terrorist Squad (ATS),
U.P. Police, Lucknow on 17.08.2011 at
Police Station ATS for offences under
Sections 419, 420, 467, 468, 471, 120-B
IPC in which the applicant is also an
accused person.

4. The charge sheet regarding
scheduled offence were filed before the
Additional Chief Judicial Magistrate and on
03.02.2016, the First Additional Chief
Judicial Magistrate, Lucknow passed an
order committing the case to the Session
Court as at that point of time, the Sessions
Judge, Lucknow was the designated special
court for trial of offence under Section 45
PMLA Act. Subsequently after creation of
special court in PMLA, the trial has been
transferred to the Special Judge, PMLA.

5. On 24.05.2024, the applicant filed
an application seeking transfer of trial of
the scheduled offence from the court of
Special Court, PMLA to the court of
Magistrate which application has been
4 All. Danish Khan Vs. State of U.P. & Anr.
735
rejected by the impugned order dated
03.07.2024.

6. It is also relevant to note that the
case was committed to the Special Court
way back in the year 2016, the applicant
has been participating in the trial since
then. The application for transfer of case to
the court of magistrate has only been filed
in the year 2024.

7. The learned counsel for the
applicant submitted that the reason for
filing an application is a judgment of the
Hon'ble Supreme Court Vijay Madan Lal
Chaudhary v. Union of India: (2023) 12
SCC 1, wherein the Hon'ble Supreme
Court has held that: -

"264. The petitioners may be
justified in making grievance that the
provision though permits the Special Court
to proceed with the trial in respect of
scheduled offence, yet it may be oppressive
as against the accused who is not charged
with the offence of money laundering but
only scheduled offence. For, he may be
denied of opportunity of one appeal or
revision, as the case may be before the
higher forum. Such a grievance can
certainly be looked into by the Special
Court if an application is moved by the
authority authorised. Since we have held
that the provision is only to bestow
enabling power in the Special Court, it
must follow that the Special Court will
examine the request of the authority
authorised for transfer of trial of predicate
offence to itself on case-to-case basis.
Similarly, request for trial of offence under
another special statute, such as the PC Act,
the NDPS Act, etc. can also be considered
by the Special Court on case-to-case basis
after examining all aspects of the matter."

8. Assailing validity of the impugned
order dated 03.07.2024 the learned counsel
for the applicant has submitted that
although the applicant is an accused in
scheduled offence, he is not an accused in
the complaint filed by the ED under
PMLA. As he is not an accused under
PMLA, his case cannot be tried by the
special court under provisions of PMLA.
He has submitted that trial of the case
relating to the scheduled offence by the
Special Court under PMLA would cause
serious prejudice to the applicant as his
right of appeal will vanish.

9.

Before
dealing
with
this
submission of the learned Counsel for the
applicant. It would be appropriate to have a
look at the provision contained in Section
44(1) of the PMLA, which reads as
follows: -

"44. Offences triable by Special
Courts.-(1)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974)-

(a) an offence punishable under
Section 4 and any scheduled offence
connected to the offence under that section
shall be triable by the Special Court
constituted for the area in which the offence
has been committed:

Provided that the Special Court,
trying a scheduled offence before the
commencement of this Act, shall continue
to try such scheduled offence; or;

(b) a Special Court may, upon a
complaint made by an authority authorised
in this behalf under this Act take
cognizance of offence under Section 3,
without the accused being committed to it
for trial:

Provided that after conclusion of
investigation, if no offence of moneylaundering is made out requiring filing of
736 INDIAN LAW REPORTS ALLAHABAD SERIES
such complaint, the said authority shall
submit a closure report before the Special
Court; or

(c) if the court which has taken
cognizance of the scheduled offence is
other than the Special Court which has
taken cognizance of the complaint of the
offence of money-laundering under subclause (b), it shall, on an application by the
authority authorised to file a complaint
under this Act, commit the case relating to
the scheduled offence to the Special Court
and the Special Court shall, on receipt of
such case proceed to deal with it from the
stage at which it is committed.

(d) a Special Court while trying
the scheduled offence or the offence of
money-laundering shall hold trial in
accordance with the provisions of the Code
of Criminal Procedure, 1973 (2 of 1974),
as it applies to a trial before a Court of
Session.

Explanation.-For the removal of
doubts, it is clarified that-

(i) the jurisdiction of the Special
Court while dealing with the offence under
this Act, during investigation, enquiry or
trial under this Act, shall not be dependent
upon any orders passed in respect of the
scheduled offence, and the trial of both sets
of offences by the same court shall not be
construed as joint trial;

(ii) the complaint shall be deemed
to include any subsequent complaint in
respect of further investigation that may be
conducted to bring any further evidence,
oral or documentary, against any accused
person involved in respect of the offence,
for which complaint has already been filed,
whether named in the original complaint or
not."

After
considering
the
provision
contained in Section 44(1) of the PMLA,
the Hon'ble Supreme Court held in Rana
Ayyub v. Directorate of Enforcement,
(2023) 4 SCC 357, that: -

"28. Therefore, it is clear that the
trial of the scheduled offence should take
place in the Special Court which has taken
cognizance of the offence of moneylaundering. In other words, the trial of the
scheduled offence, insofar as the question
of territorial jurisdiction is concerned,
should follow the trial of the offence of
money-laundering and not vice versa.

* * *

30. A careful dissection of clauses
(a) and (c) of sub-section (1) of Section 44
shows that they confer primacy upon the
Special Court constituted under Section
43(1) of the PMLA. These two clauses
contain two rules, namely : (i) that the
offence punishable under PMLA as well as
a scheduled offence connected to the same
shall be triable by the Special Court
constituted for the area in which the offence
of money-laundering has been committed;
and (ii) that if cognizance has been taken
by one Court, in respect of the scheduled
offence and cognizance has been taken in
respect of the offence of money-laundering
by the Special Court, the Court trying the
scheduled offence shall commit it to the
Special Court trying the offence of moneylaundering.

31. It is only because of the
Special Court constituted under Section
43(1) being conferred primacy that Section
44(1)
begins
with
the
words
"notwithstanding anything contained in the
Code of Criminal Procedure". Though
PMLA contains a non obstante clause in
relation to the CrPC, both in Section 44(1)
and in Section 45(1), there are two other
provisions where the Code of Criminal
Procedure is specifically declared to apply
to the proceedings before a Special Court.
Section
46(1) specifically
makes the
4 All. Danish Khan Vs. State of U.P. & Anr.
737
provisions of the CrPC applicable to
proceedings before a Special Court.
Similarly, Section 65 of the PMLA makes
the provisions of CrPC apply to arrest,
search
and
seizure,
attachment,
confiscation, investigation, prosecution and
all other proceedings under the Act."

10. In the impugned order dated
03.07.2024, the trial court has relied upon
the aforesaid law laid down by the Hon'ble
Supreme Court in the case of Rana Ayyub
(Supra).

11. Even if the applicant is not an
accused in the case relating to money
laundering but the other co-accused persons
in the scheduled offence are accused in the
case relating to money laundering, the trial
court has rightly come to a conclusion that
trial of the applicant should be held in the
Special Court as the trial of other coaccused persons has to be conducted by the
Special Court under the PMLA.

12. The second ground urged by the
learned counsel for the applicant is that in
case the scheduled offences are tried by the
Court
of
Additional
Chief
Judicial
Magistrate, in case of his conviction he can
only be punished with imprisonment for a
period upto 7 years only whereas in case of
trial by the Special Court, he may be
inflicted a punishment of imprisonment for
a period upto his life.

13. The relevant statutory provision in
this regard are contained in Sections 323
and 325 Cr.P.C., which provide as follows:
-

"323. Procedure when, after
commencement
of
inquiry
or
trial,
Magistrate
finds
case
should
be
committed.-If, in any inquiry into an
offence or a trial before a Magistrate, it
appears to him at any stage of the
proceedings before signing judgment that
the case is one which ought to be tried by
the Court of Session, he shall commit it to
that
Court
under
the
provisions
hereinbefore contained and thereupon the
provisions of Chapter XVIII shall apply to
the commitment so made

* * *

325. Procedure when Magistrate
cannot pass sentence sufficiently severe.-

(1) Whenever a Magistrate is of
opinion, after hearing the evidence for the
prosecution and the accused, that the
accused is guilty, and that he ought to
receive a punishment different in kind from,
or more severe than, that which such
Magistrate is empowered to inflict, or,
being a Magistrate of the second class, is of
opinion that the accused ought to be
required to execute a bond under Section
106, he may record the opinion and submit
his proceedings, and forward the accused,
to the Chief Judicial Magistrate to whom
he is subordinate.

(2) When more accused than one
are being tried together, and the Magistrate
considers it necessary to proceed under
sub-section (1), in regard to any of such
accused, he shall forward all the accused,
who are in his opinion guilty, to the Chief
Judicial Magistrate.

(3) The Chief Judicial Magistrate
to whom the proceedings are submitted
may, if he thinks fit, examine the parties
and recall and examine any witness who
has already given evidence in the case and
may call for and take any further evidence,
and shall pass such judgment, sentence or
order in the case as he thinks fit, and as is
according to law.

14. Even where an offence carries a
maximum punishment beyond the powers
738 INDIAN LAW REPORTS ALLAHABAD SERIES
of a Magistrate, the Magistrate has to
proceed with the trial, record evidence,
form an opinion that the accused is guilty
and thereafter form an opinion that the
accused should be given a punishment
higher than that which he is empowered to
inflict. Thereafter that he can submit the
proceedings
to
the
Chief
Judicial
Magistrate,
who
may
commit
the
proceedings to the Court of Sessions.
Therefore, trial of the offence by a
Magistrate does not mean that the accused
cannot be inflicted with the maximum
punishment for the offence prescribed by
law.

15. Therefore, the submission of
learned counsel for the applicant that if the
case is tried by the Magistrate, the
applicant can be punished with a sentence
of imprisonment up to seven years only and
transfer of trial to the special court would
prejudice the applicant as in that case he
may be awarded a punishment of seven
years is misconceived.

16. No other submission was
advanced by the learned Counsel for the
applicant.

17. In view of the foregoing
discussion, no case for any interference in
the impugned order dated is made out. The
application under Section 528 BNSS lacks
merit and the same is dismissed.
----------
(2025) 4 ILRA 738
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.04.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Criminal Misc Anticipatory Bail Application u/s
438 CR.P.C. No. 118 of 2025

Tatheer Jafri & Ors. ...Applicants
Versus
State of U.P. ...Respondent

Counsel for the Applicants:
Anjani
Kumar
Mishra,
Nadeem
Murtaza,
Shashank Tilhari

Counsel for the Respondent:
G.A.

Criminal
Law
-Criminal
Procedure
Code,1973-Section
438-BNSS,2023Section
482-U.P.
Gangsters
and
Anti
Social
Activities(Prevention)
Act,1986Maintainability-The
applicant
sought
anticipatory bail in connection with a case
registered under Gangster act-The State
opposed the application , citing the U.P.
Amendment
to
the
CrPC,1973
which
barred anticipatory bail in Gangster Act
cases-the
application
was
not
maintainable since the chargsheet and
bailable warrants were issued before the
BNSS 2023 came into effect on 1st july
2024-The Court rejected the objection,
holding that the second bailable warrant
issued on 2nd july 2024(post enforcement
of BNSS 2023) constituted a fresh cause
of action and anticipatory bail would be
governed by section 482 BNSS 2023 which
permits such applications-Relying on the
Deepu Vs. St. of UP and Eera Vs. St., the
court emphasized that anticipatory bail is
a beneficial provision linked to Article 21
and must be interpreted broadly-Finding
only
one
previous
case
against
the
applicants, in which bail was earlier
granted, the Court granted anticipatory
bail
subject
to
condition-Thus,
Anticipatory
bail
application
is
maintainable under BNSS 2023.(Para 1 to
24)

The application is allowed. (E-6)

List of Cases cited: