# Hakimuddin v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-22
- **Case number:** Misc. Single No. 23987 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakimuddin-v-state-of-u-p-ors-47437
- **Pages:** 5

## Headnote

A. Criminal Law - U.P. Gangster Act, 1986
- Sections 16, 17& 18 - The Court rejected
the bail application on the ground that the
Special Judge (Gangster Act) has not arrived at
any final conclusion regarding the release of his
attached vehicle under Section 17 of the
Gangster Act. (para 13)

Writ Petition Disposed of. (E-10)

List of Cases cited:

## Text

9 All Hakimuddin Vs. State of U.P. & Ors.
491
the 21st, 2021, where ,in, the claim that
arose out of a motor accident, the deceased
was a ten-years old boy and a student of
Class V. Compensation in that case was
enhanced from Rs. 39,500/- to Rs.
2,95,000/- following the decision of the
Supreme Court in Rajendra Singh. The
facts in Rajendra Singh, going by the age
of the victim of the accident, are close to
the facts here, but it must be said that these
are decisions on facts, which do not lay
down the law. Nevertheless, the principle
in Rajendra Singh is clear that damages
have be to be awarded in the case of death
of a child under the non-pecuniary head.

16.

In
the
totality
of
the
circumstances, this Court is of opinion that
ends of justice would be met by modifying
the impugned award passed by the Tribunal
to
the
extent
that
instead
of
the
compensation of Rs. 77,000/- awarded to
the claimant-appellants, the same shall
stand enhanced to Rs. 2,95,000/-. The
compensation payable shall carry Simple
Interest @ 7% per annum from the date of
institution of the claim petition, until
realization.

17. This appeal succeeds and stands
allowed in part, and, there shall be an order
modifying the impugned award in the terms
indicated hereinabove.

18. Costs easy.
----------
(2021)09ILR A491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Misc. Single No. 23987 of 2019
Hakimuddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioner:
Mohammad Riyaz

Counsel for the Respondent:
G.A.

A. Criminal Law - U.P. Gangster Act, 1986
- Sections 16, 17& 18 - The Court rejected
the bail application on the ground that the
Special Judge (Gangster Act) has not arrived at
any final conclusion regarding the release of his
attached vehicle under Section 17 of the
Gangster Act. (para 13)

Writ Petition Disposed of. (E-10)

List of Cases cited:

1. Rajbir Singh Tyagi Vs St of U.P. & ors.
Criminal Misc. Writ Petition No. 17245 of 2009
(distinguished)

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

1. Heard learned counsel for the
petitioner, learned A.G.A for the State and
perused the material available on record.

2. By means of this petition under
Article 226 of the Constitution of India, the
petitioner has prayed following reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari to quash
the impugned order dated 31.-07.2019
which is passed in Gangster Criminal Misc.
Case
No.
08/2018
bearing
name
Hakimuddin Vs. State of U.P. under
Section 14 (1) U.P. Gangster Act by
Additional District Judge, Court No.
10/Special Judge Gangster Act, District
Sultanpur as well as order dated 25.07.2018
which is passed by District Magistrate
492 INDIAN LAW REPORTS ALLAHABAD SERIES
District Amethi in Case No.00590/2018,
under Section 14 (1) U.P. Gangster Act as
contained in Annexure No. 1 and 2 to this
writ petition.

(ii) Issue a writ, order or direction
in the nature of mandamus commanding
the opposite party no. 2 to 4 to release the
seized vehicle No. U.P. 44 AA/7287
forthwith in favour of the petitioner."

3. Brief facts of the case are as
follows:

4. The S.H.O, Kothwali Amethi in his
report dated 15.05.2018 has mentioned that
the petitioner being a gang member had
acquired several property by means of antisocial activities and acquired the Indica
Vista Car No. UP 44 AA 7287 without
disclosing the source of income. According
to police report, he had no source of
income. The above motor vehicle prima
facie held to be proceed of crimes under the
Act, 1986 and liable to be attachment thus
requested to the Superintendent of Police to
initiate
attachment
proceedings
under
Section
14(1)
Gangsters
Act,
1986.
Consequently, Superintendent of Police
Amethi wrote a letter dated 18.05.2018 to
District Magistrate, Amethi for initiating a
proceeding for attachment of aforesaid
motor
vehicle
under
Section
14(1)
Gangsters Act, 1986.

5. Learned counsel for petitioner has
submitted that the District Magistrate,
concerned on receipt of said letter, initiated
seizure proceeding of the vehicle of the
petitioner vide order dated 26.06.2018. The
petitioner on 02.07.2018 filed an objection
by way of representation by disclosing the
source of income and acquisition of motor
vehicle and also requested to release his
vehicle. The plea of the petitioner was
rejected under Section 14 (1) of the
Gangster Act, 1986 on 25.07.2018 on the
ground that a petitioner is a history sheeter
and four offences shown in Gang-chart
against him and no material evidence of
purchasing of said vehicle with valid
source of income has been produced.

6. Further submission is that the
learned
District
Magistrate
concerned
declined to release the vehicle vide order
dated 25.07.2018 with the order of
attachment and referred the matter to
Special Judge (Gangsters Act) under
Section 16 (1) of U. P. Gangsters Act,
1986. Thereafter the petitioner made a
representation before learned Special Judge
(Gangsters Act)/Additional Sessions Judge,
Sultanpur. The petitioner requested that
aforesaid
Vehicle
was
purchased
by
earnings
of
his
agricultural
sources,
pension of father, who was posted in Army
and his wife is Gram Pradhan, but the all
submissions of the petitioner was rejected
regarding the purchasing of the vehicle and
dismissed the application for releasing
vehicle on 31.07.2019 on the ground that
the concerned case is at the premature stage
and the evidence of witnesses is yet to be
recorded to reach the final conclusion. So
releasing the aforesaid vehicle at this stage
is contrary to provisions enshrine under
Section 16 (3) of the Gangster Act.

7. Learned counsel for petitioner has
submitted that vehicle no. UP 44 AA 7287
was purchased by the petitioner on
25.10.2013 from Anany Motor Private
Limited for a sum of Rs. 7,04,144/- and the
said vehicle was financed with Mahindra &
Mahindra Finance Service Limited with 23
equal installments of Rs.18,990/- and sale
letter is annexed as Annexure No. 3.
Further submission is that at the time of
purchase, his wife was Gram Pradhan and
father was posted in Army Department and
9 All Hakimuddin Vs. State of U.P. & Ors.
493
was receiving pension a sum of Rs.
21,300/-, and the petitioner has sufficient
agricultural land and his annual earning is
Rs.1,00,000/- also. In support of his
submission, he filed copy of bank account
of his father as Annexure No. 5 and copy of
his bank account as Annexure No. 6.
Learned counsel for petitioner has further
submitted that the petitioner had paid all
installments with the help of earning of his
family members and finally submitted that
at present the vehicle is lying abandoned in
police station and the petitioner is ready to
give surety and personal bond regarding the
vehicle and he will not sell the vehicle
during the disposal of the case finally
before the court concerned. Thus the
petitioner is legally entitled to release the
vehicle in his favour. Learned counsel for
petitioner has next submitted that the
petitioner has no other alternative and
efficacious
remedy
than
to
invoke
jurisdiction of this Court under Article 226
of the Constitution. Learned counsel for
petitioner has also relied upon a judgment
of this Court in the case of Rajbir Singh
Tyagi Vs. State of U.P. and others passed
by this Court in Criminal Misc. Writ
Petition No. 17245 of 2009 wherein
Ganster Court conducted inquiry under
Section 16 in reference to order passed by
District Magistrate and after due enquiry
learned Gangster Court passed the final
order of attachment and the claim of the
petitioner was rejected and High Court by
means of writ under Article 226 of the
Constitution allowed the writ of the
petitioner and quashed the order of the
learned trial court and released the attached
property.

8. Learned A.G.A. for the State has
opposed the submissions made by learned
counsel for petitioner and submitted that
the inquiry is pending before the Gangster
Court and the Gangster Court had not
arrived at any final conclusion regarding
the alleged motor vehicle. He further
submitted that the prayer made in the writ
petition is prima facie at this stage is liable
to be dismissed.

9. Being aggrieved by the aforesaid
orders, this writ petition has been filed.

10. 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
494 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
495
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.

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.

11. The aforesaid provision has
clearly envisages that on receiving the
reference from the District Magistrate
under Section 16 (1) of the Act, the Court
shall fix date for inquiry and Court shall
hear the parties, receive evidence produced
by them, take such further evidence as it
considers necessary. In the case in hand,
Special Judge (Gangsters Act) came to hold
that the evidence of concerned parties and
interested witnesses is yet to be recorded to
reach final conclusion. Even the notice is
not served to them at this stage, so
releasing the aforesaid property is contrary
to the settled provisions under the Act. In
view of the matter, proceedings regarding
the determination of the claim of the parties
is still to be decided by the court concerned
after recording evidence of respective
parties.

12. Although in support of his
submission, learned counsel for petitioner
has relied upon a judgment of this Court in
the case of Rajbir Singh Vs. State of U.P.
passed in Criminal Misc. Writ Petition No.
17245 of 2009. but the fact of this case is
quite different from the facts of the present
case. In Rajbir Singh's case, the trial court
finally determined the rights of the
petitioner under Section 17 of the Gangster
Act. In the present case, no final order has
been passed by the competent gangster
court and enquiry proceedings is still
pending under Section 16 of the Gangster
Act.

13. The learned Special Judge
(Gangsters Act) has not arrived at any final
conclusion regarding release of alleged
property under Section 17 of the Gangster
Act. Since no final order was passed by the
court of Gangster Act, so at this stage, the
present writ petition is not maintainable. If
any grievance left to the petitioner after
arriving any conclusion by Gangster Court
under Section 17 of the Act then he may
file appeal under Section 18 of the
Gangster Act before this court.

14. In view of the aforesaid statutory
provisions of law, there is no ground to
entertain this petition. Accordingly, the
petition is disposed of. However, it is
desirable by the learned Special Judge
Gangster Act to conclude the inquiry and
pass the appropriate orders under Section
17
of
the
Gangsters
Act,
1986
expeditiously preferably within a period of
one month, if there is no legal impediment.
----------
(2021)09ILR A495
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Special Appeal No. 107 of 2021

The Secretary, CBSE, New Delhi & Ors.
 ...Appellants
Versus
Kabir Jaiswal & Ors. ...Respondents