# Faiyaz Abbas v. State of U.P. & Anr. 1046 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 7 ILRA 1045
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-18
- **Case number:** Criminal Appeal No. 194 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faiyaz-abbas-v-state-of-u-p-anr-1046-indian-law-reports-allahabad-series-52181
- **Pages:** 7

## Headnote

(A) Criminal Law -Appeal - The Code of
criminal procedure, 1973 - Section 82 -
Proclamation for person absconding ,
Section 83 - Attachment of property of
person absconding , Section 84 - Claims
and objections to attachments , Indian
Penal Code, 1860 - Sections 323, 328,
363, 376, 504 & 506 , The Protection of
Children From Sexual Offences Act, 2012 -
Section 3 & 4 - mere residence of a
proclaimed person in rented premises
does not allow authorities to seize or
attach the property, as it does not belong
to the proclaimed person - If a statute
provides for a thing to be done in a
particular manner, then it has to be done
in that manner and in no other manner.
(Para - 19,20,21,22)

F.I.R. lodged against appellant, his son & wife -
son not appearing before court - order was
issued to attach property - son living in two
rooms of appellants house - appellant filed
objections - property belongs to him on basis of
will - court ruled - order was passed to ensure
the accused's appearance - ownership and
possession cannot be ascertained - hence
appeal. (Para - 12)

HELD:
-Only
property
belonging
to
the
proclaimed person can be attached. Order
passed by POCSO Act and attachment order set
aside. Authorities can proceed against the son
of the appellant in accordance with the law.
(Para - 17, 20,21,22)

Criminal appeal allowed. (E-7)

List of Cases cited:

## Text

7 All. Faiyaz Abbas Vs. State of U.P. & Anr.
1045
48. Thus from the aforesaid facts,
it is crystal clear that there are major
contradictions and omissions not only in
the statement of the eye witnesses but in
the
depositions
of
the
Investigating
Officers, which not only makes the entire
prosecution version doubtful but also
makes the presence of the eye witness and
place of occurrence doubtful. It may be
added that the eye witnesses, complainant
and the deceased are all related to each
other and belong to one clan.

49. As regard the enmity and
motive, here it is relevant to point out, as
averred above, that Ram Pukar Singh
(P.W.1) has stated in his examination in
chief that his brother ( deceased ) had no
enmity with any person. Later on this
witness stated that father of accused
Narendra Singh had come at his Poultry
Farm in a drunken state and started using
expletive language for his family, then his
brother after snatching his lathi assaulted
Ram Singhasan. Since then Narendra Singh
was annoyed and used to threat his brother.
There is no whisper about the enmity with
accused Ramesh Yadav and Dharmendra
Singh. This witness further stated that as
Ram Singhasan had admitted his guilt, a
compromise was arrived at. On the other
hand, Pancha Nand in his cross-examination
stated that he knew Ram Surat Singh, Ram
Singhasan and Harendra Singh, Harendra
Singh is brother of accused Narendra Singh
and Ram Surat Singh is uncle of accused
Narendra Singh. This witness stated that he
had a fight with Ram Sakal Singh, Ram Surat
Singh, Harendra Singh and Ram Singhasan
Singh and he had also received injuries.
However, there was a compromise much
earlier and discord has ended after the
compromise and they were on talking terms
but there was no affinity or closeness. Thus
from the statement of the P.W.1 Ram Pukar
Singh and P.W.2 Panchanand Singh it can
easily be inferred that there was no real and
strong motive for the appellants to commit
the murder of the deceased and false
implication cannot be ruled out.

50. Considering the evidence and
other material on record in its entirety, we are
of the view that the learned Trial Judge has
erred in convicting the accused-appellants
overlooking the fact that there are serious and
major contradictions and omissions not only
in the statement of eye witnesses but in the
statement of police witnesses which makes
the entire story doubtful and benefit thereof
will go to the appellants.

51. For the reasons aforesaid,
both the aforesaid appeals are allowed.
The impugned judgment of conviction
and sentence awarded to the appellants
is set-aside and the appellants are
acquitted
of
the
charges
levelled
against them. Appellants are on bail,
they need not to surrender. Their bail
bonds are cancelled and sureties are
discharged.

52. Registry is directed to send a
copy of the judgement along-with Trial court
record to the court concerned at the earliest
for compliance.
----------
(2024) 7 ILRA 1045
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Criminal Appeal No. 194 of 2024

Faiyaz Abbas ...Appellant
Versus
State of U.P. & Anr. ...Respondents
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Mohd. Kumail Haider, Bal Keshwar Srivastava,
Ravi Patel

Counsel for the Respondents:
G.A.

(A) Criminal Law -Appeal - The Code of
criminal procedure, 1973 - Section 82 -
Proclamation for person absconding ,
Section 83 - Attachment of property of
person absconding , Section 84 - Claims
and objections to attachments , Indian
Penal Code, 1860 - Sections 323, 328,
363, 376, 504 & 506 , The Protection of
Children From Sexual Offences Act, 2012 -
Section 3 & 4 - mere residence of a
proclaimed person in rented premises
does not allow authorities to seize or
attach the property, as it does not belong
to the proclaimed person - If a statute
provides for a thing to be done in a
particular manner, then it has to be done
in that manner and in no other manner.
(Para - 19,20,21,22)

F.I.R. lodged against appellant, his son & wife -
son not appearing before court - order was
issued to attach property - son living in two
rooms of appellants house - appellant filed
objections - property belongs to him on basis of
will - court ruled - order was passed to ensure
the accused's appearance - ownership and
possession cannot be ascertained - hence
appeal. (Para - 12)

HELD:
-Only
property
belonging
to
the
proclaimed person can be attached. Order
passed by POCSO Act and attachment order set
aside. Authorities can proceed against the son
of the appellant in accordance with the law.
(Para - 17, 20,21,22)

Criminal appeal allowed. (E-7)

List of Cases cited:

1. Nazir Ahmad Vs King Emperor, 1936 SCC
OnLine PC 41

2. Chandra Kishore Jha Vs Mahavir Prasad &
ors., 10 1999 (8) SCC 266

3. Cherukuri Mani Vs Chief Secy., Govt. of A.P.
& ors., 2015 (13) SCC 722

(Delivered by Hon'ble Abdul Moin, J.)

1. Rejoinder affidavit filed today is
taken on record.

2. Heard Shri Bal Keshwar
Srivastava,
learned
counsel
for
the
appellant
as
well
as
Shri
Angad
Vishwakarma, learned A.G.A. for the Staterespondent(s).

3. The instant criminal appeal has
been filed under Section 86 of the Criminal
Procedure Code (hereinafter referred to as
"Code")
challenging
the
order dated
12.07.2023, a copy of which is annexure 3
to the appeal, passed by learned Special
Judge, POCSO Court No.2, Lucknow. By
the said order, the application filed by the
appellant under Section 84 of the Code has
been rejected.

4. The short facts as urged by the
learned counsel for the appellant is that an
F.I.R. had been lodged by Saiyyad Ali
Hasan against Faiyaz Abbas (the appellant
herein), Faiz Abbas (the son of the
appellant) and Smt. Guddo (the wife of the
appellant). The F.I.R. was lodged on
28.11.2015 under the provisions of Section
3 & 4 of POCSO Act as well as under
Sections 323, 328, 363, 376, 504 & 506 of
I.P.C.

5. As the authorities were unable to
ensure the appearance of Shri Faiz Abbas,
the son of the appellant, consequently an
order under Section 82 of the Code dated
12.01.2023, a copy of which is annexure 4
to the appeal, was passed. Subsequently, an
order dated 06.02.2023, a copy of which is
part of annexure 4 to the appeal, was also
7 All. Faiyaz Abbas Vs. State of U.P. & Anr.
1047
passed under Section 83 of the Code
whereby the property of the appellant
herein was attached which is said to be the
house of the appellant.

6. As the house belongs to
appellant herein, namely, Shri Faiyaz
Abbas, he filed his objections under
Section 84 of the Code specifically
pointing out that the appellant is the sole
owner of the house by way of a will, and
that his son namely Faiz Abbas has got
nothing to do with the house and as the
appellant
is
living
in
the
house,
consequently, the attachment order be set
aside.

7. The learned court, vide order
impugned
dated
12.07.2023,
after
considering the objections filed by the
appellant indicating the aforesaid, was of
the view that while deciding the objections
under the provisions of Section 84 of the
Code, the court is not required to decide the
dispute pertaining to the ownership of the
house and that as the accused Faiz Abbas is
only residing in two rooms of the entire
house,
consequently,
the
order
of
attachment under Section 83 of the Code
has correctly been passed and therefore, the
objections filed by the appellant have been
rejected.

8. Being aggrieved, the instant
appeal has been filed.

9. The argument of the learned
counsel for the appellant is that the
provision of Section 83 of the Code
categorically provides that an attachment
order can be passed for the property
belonging to the proclaimed person who
does not appear. Thus, the contention is that
sine-qua-non to an order being passed
under the provision of Section 83 of the
Code is a finding, may be prima facie, to
the effect that the property being attached
belongs to the accused and without
recording of such a finding in this regard,
the property of a third person, may be in
this case belonging to the father of the
accused namely the appellant, could not
have been attached. He also contends that
despite the objections in this regard being
filed, the learned court has patently erred in
law in affirming the order of attachment
passed under the provisions of Section 83
of the Code solely on the ground that the
accused is residing in two rooms of the
entire house and as such, it was within the
power of the authority concerned, while
issuing the order under Section 83 of the
Code, to have directed for attachment of
the property. He thus contends that the
order impugned merits to be set aside.

10. On the other hand, learned
A.G.A. on the basis of averments contained
in the counter affidavit argues that the
F.I.R. has been lodged in the year 2015
against the accused Faiz Abbas, the
appellant herein and the wife of appellant
and thus there is no illegality and infirmity
which
has
been
committed
by
the
competent court while passing the order
under Section 83 of the Code in attaching
the property of the accused and further, no
perversity emerges from the order dated
12.07.2023 whereby the objections filed by
the appellant against the order under
Section 83 of the Code have been rejected.
He thus contends that the instant appeal
merits to be dismissed.

11. Heard the learned counsel for
the parties and perused the record.

12. From a perusal of record, it
emerges that admittedly, an F.I.R. had been
lodged in the year 2015 against the
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant namely Shri Faiyaz Abbas (the
appellant), Faiz Abbas (the son of the
appellant) and Smt. Guddo (the wife of the
appellant). As the son of the appellant
namely Shri Faiz Abbas was not appearing,
consequently, an order under Section 82 of
the Code was initially issued on 12.01.2023
and thereafter, the order under Section 83
of the Code dated 06.02.2023 was passed
whereby the property in question was
attached. As the property belongs to the
appellant on the basis of a will, the
appellant filed his objections under Section
84 of the Code whereby this fact of the
property belonging to him, on the basis of a
will, was specifically urged before the
court. The court, vide order impugned
dated 12.07.2023 has been of the view that
the said attachment order has been passed
in order to ensure the appearance of the
accused Faiz Abbas and as the accused was
residing in two rooms of the property in
question, consequently, there is no error in
the attachment order. The learned court had
gone to the extent of also saying that while
passing of an order under the provision of
Section 84 of the Code, the ownership and
possession of the property is not be
ascertained.

13. From the perusal of the
aforesaid facts, it thus emerges that the
orders under Section 82 & 83 of the Code
have been passed in order to ensure the
appearance of the son of the appellant.
Section 83 of the Code on reproduction
reads as under:

"Section 83. Attachment
of property of person absconding:
(1) The Court issuing a
proclamation under section 82 may,
for reasons to be recorded in
writing, at any time after the issue
of the proclamation, order the
attachment
of
any
property,
movable or immovable, or both,
belonging
to
the
proclaimed
person.
Provided that where at the
time
of
the
issue
of
the
proclamation the Court is satisfied,
by affidavit or otherwise, that the
person in relation to whom the
proclamation is to be issued, ?
(a) Is about to dispose of
the whole or any part of his
property, or
(b) Is about to remove the
whole or any part of his property
from the local jurisdiction of the
Court, it may order the attachment
simultaneously with the issue of the
proclamation.
(2)
Such
order
shall
authorize the attachment of any
property belonging to such person
within the district in which it is
made; and it shall authorize the
attachment
of
any
property
belonging to such person without
such district when endorsed by the
District Magistrate within whose
district such property is situate.
(3) If the property ordered
to be attached is a debt or other
movable property, the attachment
under this section shall be made?
(a) By seizure; or
(b) By the appointment of a
receiver; or
(c) By an order in writing
prohibiting the delivery of such
property to the proclaimed person
or to anyone on his behalf; or
(d) By all or any two of
such methods, as the Court thinks
fit.
(4) If the property ordered
to be attached is immovable, the
7 All. Faiyaz Abbas Vs. State of U.P. & Anr.
1049
attachment under this section shall,
in the case of land paying revenue
to the State Government, be made
through the Collector of the district
in which the land is situate, and in
all other cases?
(a) By taking possession;
or
(b) By the appointment of a
receiver; or

(c) By an order in writing
prohibiting the payment of rent on
delivery
of
property
to
the
proclaimed person or to any one on
his behalf; or

(d) By all or any two of
such methods, as the Court thinks
fit.
(5) If the property ordered
to be attached consists of live-stock
or is of a perishable nature, the
Court may, if it thinks it expedient,
order immediate sale thereof, and
in such case the proceeds of the
sale shall abide by the order of the
Court.
(6) The powers, duties and
liabilities of a receiver appointed
under this section shall be the same
as those of a receiver appointed
under the Code of Civil Procedure,
1908."

14. From the perusal of the
provisions of Subsections (1) & (2) of
Section 83 of the Code, it clearly emerges
that the court while issuing a proclamation
under Section 82 of the Code may, for
reasons to be recorded in writing, at any
time after issue of the proclamation, order
of the attachment of any property movable
or immovable, or both, belonging to the
proclaimed person.
15.

Thus
from
perusal
of
subsections (1) & (2) of Section 83 of the
Code, it is apparent that it is the property
which belongs to the proclaimed person
which is to be attached.

16. From the objections as were
raised
by
the
appellant
before
the
concerned court, it clearly emerges that the
property in fact belongs to the appellant
and not his son Faiz Abbas, the proclaimed
person, consequently, it was in the fitness
of things that this aspect of the matter
should have been considered by the
concerned court instead of rejecting the
application on the ground that while
deciding the application, the ownership or
possession of the property is not required to
be seen.

17. The aforesaid finding and
reasoning is found patently perverse, more
particularly, considering subsections (1) &
(2) of Section 83 of the Code which clearly
stipulates that it is only the property
belonging to the proclaimed person which
can be attached. Thus, the sine-qua-non to
an order being passed under the provisions
of Section 83 of the Code would be of a
finding, may be prima facie, that the
property for which the attachment order is
being passed belongs to the accused person
and consequently, without such finding,
obviously, no such order could have been
passed under the provision of Section 83 of
the Code which in turn has been affirmed
with the dismissal of the objections filed by
the appellant.

18. It was also meaningless for the
concerned court to have indicated that it
was not the entire property which has been
attached rather only two rooms were
attached in which the accused was residing.
Once, as already indicated above, it is only
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
the property belonging to the proclaimed
person
which
can
be
attached,
consequently, there cannot be any occasion
of attachment of the property in which the
accused may be residing.

19. To elaborate this fallacious
reasoning of the concerned court, an
example may be taken where a proclaimed
person may be residing in rented premises.
Mere residence of the proclaimed person in
rented
premises
by
no
stretch
of
imagination or by operation of law can
empower the concerned authority to seize
or attach the rented property as the said
rented property would not belong to the
proclaimed person.

20. Here it would be pertinent to
indicate as to what the Hon'ble Privy
Council has laid down more than 8 decades
ago in the case of Nazir Ahmad Vs. King
Emperor 1936 SCC OnLine PC 41
wherein the Privy Council has held as
under:-

"that where a power is
given to do a certain thing in a
certain way the thing must be done
in that way or not at all. Other
methods
of
performance
are
necessarily forbidden."

21. A three Judge Bench of the
Hon'ble Supreme Court in the judgment
reported as Chandra Kishore Jha v.
Mahavir Prasad & Ors. 10 1999 (8) SCC
266, held as under:-

"17.....................It
is
a
well-settled salutary principle that
if a statute provides for a thing to
be done in a particular manner,
then it has to be done in that
manner and in no other manner.
(See with advantage: Nazir Ahmad
v. King Emperor [(1935- 36) 63 IA
372 AIR 1936 PC 253 (II)], Rao
Shiv Bahadur Singh v. State of V.P.
[AIR 1954 SC 322 1954 SCR
1098], State of U.P. v. Singhara
Singh [AIR 1964 SC 358: (1964) 1
SCWR 57]). An election petition
under the rules could only have
been presented in the open court up
to 16-5- 1995 till 4.15 p.m.
(working hours of the Court) in the
manner prescribed by Rule 6
(supra) either to the Judge or the
Bench as the case may be to save
the period of limitation. That,
however, was not done?"

22. Similarly, the said principle as
enunciated by the Privy Council in the case
of Nazir Ahmad (supra) has been followed
by the Hon'ble Supreme Court Court in
Cherukuri Mani Vs. Chief Secretary,
Government of Andhra Pradesh & Ors.
2015 (13) SCC 722 wherein it was held as
under:-

"14.
Where
the
law
prescribes a thing to be done in a
particular manner following a
particular procedure, it shall be
done in the same manner following
the provisions of law, without
deviating
from
the
prescribed
procedure..........?"

20. Keeping in view of the
aforesaid discussion, the criminal
appeal is allowed. The order dated
12.07.2023, a copy of which is
annexure 3 to the appeal, as well as
the
attachment
order
dated
06.02.2023, a copy of which is part
of annexure 4 to the appeal, are set
aside.
7 All. Ikrar & Anr. Vs. U.O.I.
1051
21.

Consequences
to
follow.

22. It is needless to
mention that irrespective of the
aforesaid order having been set
aside, it would always be open for
the authorities to proceed against
the accused person namely Faiz
Abbas in accordance with law.
----------
(2024) 7 ILRA 1051
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 985 of 2002

Ikrar & Anr. ...Appellants
Versus
U.O.I. ...Respondent

Counsel for the Appellants:
A.P. Mishra

Counsel for the Respondent:
Rakesh Kumar Awasthi, Sm Singh Royekwar

NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES Act-Section 50-Appellants
convicted-Admittedly Appellants were not
produced before the Gazetted Officer or
Magistrate u/s 50 of the Act -no written
consent of Appellants for his search -no
evidence to show that the accused was
communicated of his such right- breach of
sec.
50
and
sec.
43
of
the
Act-no
independent eye witness of the alleged
recovery-all witness are police personnelcase is based on circumstantial evidence -
guilt not established beyond a reasonable
doubt-impugned judgment set aside.

Appeal allowed. (E-9)

List of Cases cited:
1. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
2010 (2) EFR 755

2. St. of Rajasthan Vs Parmanand & anr., (2014)
2 SCC (Cri) 563

3. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
2010 (2) EFR 755

4. St. Of Punjab Vs Baldev Singh [1999 (6) SCC
172]

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. This criminal appeal Under
Section 374 (2) Cr.P.C. against the
judgement and order dated 29.7.2002
passed
by
Learned
Special
Judge,
B.D.P.S.Act, Lucknow in criminal case no.
650 of 1991 Under Section 8/21/29
N.D.P.S. Act, challaned by C.B. Mohd.
Ikrar and other Vs. Union of India by
which the appellants have been convicted
for 6 years R.I. and fine of Rs 25000/- each
with stipulate default

3. Considering the report of the
Chief Judicial Magistrate, Barabanki dated
05.03.2024, the appeal in respect of
appellant No.1-Ikrar has already been
abated vide order dated 03.07.2024. Thus,
the present appeal is decided on merit in
respect of appellant No.2-Sushail.

4. Heard Sri A.P.Mishra, learned
counsel for the appellant No.2-Suhail as
well as Sri S.M.Singh Royekwar, learned
counsel for the Union of India.

5.

The
Brief
fact
of
the
prosecution,
on
13.9.1991,
Inspector
received confidential information that two
individuals, Baijnath and Vinod, residents
of Motihari, Bihar, were staying at Anand