# Jangali Pasi v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 686
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-16
- **Case number:** Criminal Misc. Writ Petition No. 8053 of 2015
- **Bench:** Amreshwar Pratap Sahi, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jangali-pasi-v-state-of-u-p-anr-43278
- **Pages:** 22

## Headnote

Constitution of India-Art.-226-Writ petitionscope of interference discussed where
statutory remedy of appeal provided
under Section 18 of U.P. Gangsters and
anti social activities (prevention) Act
1986-against ceasure of property-writ
court
declined
to
interfere-on
two
grounds-discussed.
Held: Para-27 & 28

## Text

_Characters 0–39,791 of 75,641. This is a partial read: ask again with offset=39791 for what follows._

686
 INDIAN LAW REPORTS ALLAHABAD SERIES
accordingly, leave it open to the petitioner
to invoke arbitration by adopting suitable
proceedings in accordance with law.
10. For these reasons and leaving it
open
to
the
petitioner
to
invoke
arbitration, we see no reason to entertain
the petition, which is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 8053 of 2015
Jangali Pasi
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri R.S. Shukla
Counsel for the Respondents:
A.G.A.
Constitution of India-Art.-226-Writ petitionscope of interference discussed where
statutory remedy of appeal provided
under Section 18 of U.P. Gangsters and
anti social activities (prevention) Act
1986-against ceasure of property-writ
court
declined
to
interfere-on
two
grounds-discussed.
Held: Para-27 & 28
27. In such a situation if release is
refused, then an appellate forum with
co-extensive powers should be available
and that is what Section 18 purports to
do when it recites the words any order or
judgment. This is analogous to Section
452 of the Cr.P.C. and therefore the
legislature was conscious of also making
a provision that Chapter XXIX will
mutatis mutandis apply.
28. Even though the writ jurisdiction
may
not
be
barred
in
appropriate
matters as held in Badan Singh's case
(supra) but if the statutory remedy of
appeal is available, then filing of writ
petitions stands obviated for at least two
reasons. First that in an appeal all
questions of fact and law can be pleaded,
evidence
led
and
be
adjudicated.
Secondly, ordinarily questions of fact
that may be disputed, cannot be gone
into in the exercise of jurisdiction under
Article 226 of the Constitution.
Case Law discussed:
AIR 1987 Alld. 235; 2013 (8) SCC 368; 2012
(76) ACC page 187; 2001 ALJ page 2852;
2012 (6) ADJ page 231; 2008 (63) ACC page
687; 2015 (1) JIC 435 Alld.; 2010 (3) ADJ
page 69; 2001 Cr.L.J. 949 page 4; 2000 Cr.L.J.
Page 949.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. The petitioner who is a member
of the scheduled caste, has come up
before this Court questioning the order of
the District Magistrate, Kaushambi dated
18.12.2014 arising out of proceedings of
attachment and refusal to release a truck
that had been seized invoking the
provisions of U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986.
The background in which this seizure was
made is to the effect that the petitioner
was implicated in three other criminal
cases, namely, Case Crime No.117 of
2012 under Section 379 IPC r/w Section
136 of the Indian Electricity Act, Case
Crime No.140 of 2012 under Section 379
IPC r/w Section 136 of the Indian
Electricity Act and the third case being
Case Crime No.146 of 2012 under
Sections
399/401
IPC.
2 All] Jangali Pasi Vs. State of U.P. & Anr.
687
2. It appears from the record that the
truck in question bearing registration no.
U.P 70 N 9212 is registered in the name
of the petitioner and the same came to be
seized in the aforesaid criminal cases.
Learned counsel for the petitioner submits
that the petitioner has been bailed out in
the said criminal cases, but on the strength
of the same cases the petitioner has been
booked under Section 2/3 of the 1986 Act,
where also he has been bailed out on
14.8.2013 by the competent court.
3. The truck was seized in Case Crime
No.146 of 2012. A release application was
filed where it was noticed that the said truck
was also subject matter of seizure in Case
Crime Nos.140 of 2012 and 117 of 2012 as
noted above. The truck had already been
released in the said cases on 15.5.2013.
Consequently, a release order was also passed
on 22.1.2014 in relation to Case Crime
No.146 of 2012. The said orders have been
filed on record.
4.
However, since the petitioner had
been booked under the Gangster Act, the said
truck became subject matter of detention
after putting the petitioner to notice on the
ground that this truck appears to have been
purchased from sources that have its genesis
in the cases of theft registered against the
petitioner. An ex parte order was passed
against the petitioner on the basis of a police
report on 30.7.2014 attaching the said truck
under the provisions of the 1986 Act. The
petitioner filed his objection that is on record
whereafter the impugned order has been
passed by the District Magistrate observing
that since the petitioner has not been able to
give effective details with regard to the
source of his earnings from where he has
acquired this truck and the information given
is unclear, his objection deserves to be
rejected.
5. The case of the petitioner was that
he had received a reimbursement against
the insurance policy of his son who had
died, and that money had been utilized by
him that was transacted through a Post
Office and a Bank account whereafter it
was ultimately utilized for the purchase of
the truck through a finance company.
6. The learned District Magistrate
has opined that from the said Post Office
transaction is not clear as to whether the
amount had been received by the
applicant or not and how much further
amount had been financed by the private
finance company referred to in the
objection.
Similarly,
the
transaction
through the State Bank of India in relation
to the said reimbursement of the policy
amount is also not clear. It is this order
that is assailed herein.
7. Having heard Sri Shukla, learned
counsel for the petitioner, and Sri A.K.
Sand, learned A.G.A., the prayer made by
Sri Shukla in this petition is to the effect
that if the District Magistrate Kaushambi
was refusing to release the attached
property, which is a truck, in terms of
Section 15 read with Section 16 of the
U.P. Gangsters & Anti Social Activities
(Prevention) Act, 1986 then he ought to
have referred the matter to the Court of
the Special Judge for determination and
having failed to do so, the impugned order
is vitiated as it does not comply with the
provisions of Section 16(1) of the Act.
8. Sri Shukla, learned counsel for
the petitioner, submits that the District
Magistrate was under a legal obligation to
do so and having failed to exercise his
jurisdiction, the impugned order deserves
to be quashed with a direction to the
District Magistrate to adopt the procedure
688
 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 16 for deciding the issue of
release as per the provisions aforesaid.
9. Sri A.K. Sand, learned A.G.A.,
contends that this petition is absolutely
premature, inasmuch as, even if the
District Magistrate has not referred the
matter to the learned Special Judge, the
petitioner ought to have moved an
application in terms of the aforesaid
provision for a reference to the special
court. Apart from this, he also contends
that after an order is passed by the court
of competent jurisdiction under Section
17 of the Act then there is a further
remedy to the petitioner of filing an
appeal in terms of Section 18 of the Act,
hence there should be no interference.
10. At the outset it may be
mentioned that the validity of the Act has
been upheld by this Court in the case of
Ashok Kumar Dixit Vs. State, AIR 1987
Alld. 235 and considered by the Apex
Court in the case of Dharmendra Kirthal
Vs. State of U.P. 2013 (8) SCC 368.
Unfortunately no rules appear to have
been framed by the State of U.P. as
desired inspite of a query raised by this
court vide order dated 28.11.2011 in
Criminal
Misc.
Bail
Application
No.26805 of 2011, Akbar Vs. State of
U.P. 2012 (76) ACC Page 187.
11. In order to appreciate the
aforesaid
controversy,
it
would
be
appropriate to put on record that the 1986
Act was framed by the legislature to make
special provisions for the prevention of
and for coping with gangsters and anti
social activities and for matters connected
therewith or incidental thereto. In the
instant case, we are concerned with the
procedure to be adopted for attachment
and release of the property of an alleged
gangster in terms of Sections 14 to 17 of
the Act and further as to whether an
appeal would be maintainable as urged by
the learned A.G.A. under Section 18 if an
order is passed by the court in terms of
Section 16(3)(b) of the Act.
12. To appreciate the controversy
the provisions of Sections 14 to 18 of the
Act are extracted hereinunder :-
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 sub-section (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
2 All] Jangali Pasi Vs. State of U.P. & Anr.
689
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
sub-section (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
sub-section (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 sub-section (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 of 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
690
 INDIAN LAW REPORTS ALLAHABAD SERIES
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
judgement or order of a Court passed
under the provisions of this Act.
13. A perusal thereof leaves no room
for doubt that as per sub-section (2) of
Section 15 if the District Magistrate has
refused to release the property then he
shall refer the matter with his report to the
court having jurisdiction to try an offence
under this Act under Section 16(2) of Act.
Sri Shukla is not wrong in contending that
if the District Magistrate has refused to
release the property then a reference has
to be made to the court having jurisdiction
to try the offence under the Act.
14. Sub-section (3)(a) of Section 16
obliges the court that on receipt of
reference under sub-section (1) or an
application under sub-section (2), the
court can fix a date for inquiry and put the
concerned person to notice and thereafter
is obliged to pass orders under clause (b)
of sub-section (3) read with Section 17 of
the Act as may be necessary. For the
purpose of inquiry under Section 16(3) on
a reference the court has extensive powers
of a civil court as that of trying a suit. It is
thus clear that the matter has to be
referred to the court if the District
Magistrate has refused to release the
property.
The
assessment
and
adjudication on evidence led, is within the
powers of the court as the outcome
thereof leads to the civil consequences
directly relating to the attached property.
15. A further perusal of the said
section would also demonstrate that the
court where the matter is referred has
further powers of disposal of such
property in case it is not released
inasmuch as the Act does not indicate any
power
available
with
the
District
Magistrate authorizing him for disposal of
the property. Secondly, the application
which has been referred to in sub-section
(2) of Section 16 is against refusal to
attach and not refusal to release. In the
circumstances, the learned A.G.A. is not
correct in his submission that the person
claiming such property can move an
application in the given circumstances.
The application can only be moved when
there is a refusal to attach either by the
State Government or by any other person
concerned. The issue of release is
therefore
either
before
the
District
Magistrate and if he refuses to do so then
the reference has to be made to the court
concerned.
16. In the instant case the District
Magistrate vide ex parte order dated
30.7.2014 had rejected the request for
release and on an application to set aside
the ex parte order has proceeded to decide
the same once again by the impugned
order dated 18.12.2014 rejecting the
application moved by the petitioner and
has maintained the earlier order dated
30.7.2014. We are of the considered
opinion that the District Magistrate was
under an obligation to have referred the
matter with his report to the court having
jurisdiction as per Section 16(1) for
release of such property which had
admittedly not been done as is evident
from a perusal of the order dated
18.12.2014.
17. Coming to the question of
availability of a remedy against such
orders to the petitioner, Section 18 of the
2 All] Jangali Pasi Vs. State of U.P. & Anr.
691
1986 Act makes a provision for appeal.
The said section has already been
extracted hereinabove. The provision of
appeal would be available only after an
order is passed by a court of competent
jurisdiction.
18. Having said so the other
contention raised by the learned A.G.A.
deserves to be answered as to whether an
appeal would be maintainable after an
order of the nature presently involved is
passed by the competent court. In this
regard the decision in the case of Badan
Singh @ Baddo Vs. State of U.P. and
others reported in 2001 ALJ Page 2852
has been placed before the Court. The
said judgment of a learned Single Judge
of this Court holds in paragraph 9 as
follows :-
"I shall now advert to the argument
advanced by the learned A.G.A. as to the
maintainability of the writ petitions on the
ground of availability of alternative
remedy under S.18 of the Act. To answer
the question, it is necessary to allude to
S.18 which reads as under :
"18 Appeal. The provisions of
Chapter XXIX of the Code shall, mutatis
mutandis, apply to an appeal against any
judgment or order of a Court passed
under the provisions of this Act."
9. CHAPTER XXIX of the Code of
Criminal Procedure, 1973 under caption
'Appeal' contains twenty three sections
running from Ss. 372 to 394. Section 372
provides that no appeal shall lie from any
judgment or order of a Criminal Court
except as provided for by this Code or by
any other law for the time being in force.
Section 373 makes provision for appeal
against order passed under S. 117 and
121, Cr.P.C. Under S.374 appeal lies to
the Supreme Court and the High Court
against the order of conviction. Section
375 bars appeal against the order of
conviction on the accused admitting his
guilt. Section 376 provides that no appeal
shall lie in petty cases. Under S. 377 right
has
been
conferred
on
the
State
Government to move in appeal against
inadequacy of sentence. Section 378
provides for filing appeal against the
order of acquittal. Section 379 makes
provision for appeal to the Supreme Court
against the order of the High Court
reversing acquittal to conviction. Special
right to appeal in certain cases is
provided under S.380. Sections 381 and
382 prescribe the procedure for filing of
appeal in the Court of Sessions and the
manner of hearing. The Act is a penal
Statute and Section 3 thereof prescribes
punishment to be awarded to a gangster
as well as public servant rendering illegal
help or support to a gangster. No
separate procedure is prescribed to
challenge the order of conviction or
acquittal passed by the Special Judge in
exercise of power conferred by the Act.
So, on a conspectus of CHAPTER XXIX,
Cr.P.C. and Ss. 3 and 18 of the Act what
appears is that appeal would lie against
the order of conviction or acquittal under
the Act and not against the order of
attachment of the District Magistrate or
the order of the Special Court on the
reference
made
by
the
District
Magistrate. Even assuming that Section
18 has the application and orders of the
District Magistrate and the Special Court
can be challenged by way of appeal yet I
would hold that the writ petition under
Art.
226
of
the
Constitution
is
maintainable when the very order of
attachment
passed
by
the
District
Magistrate is illegal, arbitrary and
without jurisdiction. For arriving at such
conclusion, I derive support from the
692
 INDIAN LAW REPORTS ALLAHABAD SERIES
decision of the Apex Court in Whirlpool
Corporation V. Registrar of Trade marks,
Mumbai (1998) 7 JT (SC) 243 where it is
laid down that availability of effective and
efficacious remedy will not operate as bar
to approach the High Court under Art.
226 of the Constitution in at least three
contingencies, namely where writ petition
has been filed for enforcement of
fundamental rights, or where there has
been violation of principle of natural
justice or where the order or proceedings
are without jurisdiction or vires of an Act
is challenged."
19. The said judgment was cited
before a learned Single Judge raising a
preliminary
objection
to
the
maintainability of the appeal on the
strength of the aforesaid observations.
The matter came to be considered in
Criminal Appeal No.3000 of 2003,
Kailash Sahkari Awas Samiti Vs. State of
U.P. & others and another learned Single
Judge upon a consideration of all the
relevant provisions of the Act as well as
the Criminal Procedure Code ruled as
under vide order dated 2.2.2010 to the
following effect :-
"x x x x x x x x x
I have heard both the sides and have
pondered over rival submissions. Since
the bone of contention between rival sides
require interpretation of a statutory
provision
of
an
enacted
statute,
consideration of the whole of the said
statute seems to be un-eschewable to
foresee legislative intent of the section to
be interpreted and while undertaking that
exercise a glimpse of the Act indicates
that the Act was enacted to contain
gangsterism and anti social activities
within the State of U.P. which has
attained menacing dimensions. The Act
was brought to life on 19.3.1986, on
which date it was published in the U.P.
Gazette part one. Section 1 of the Act
mentions
it's
title
and
extent
of
application, Section 2 provides definitions
and meaning of various words occurring
under the Act. Section 2 (f) which is of
some
importance
to
the
present
controversy provides that the words and
phrases used but not defined in the Act
but defined under the Code of Criminal
Procedure, 1973 or the Indian Penal
Code shall have the respective meanings
assigned to them in those statutes. Section
3 of the Act provides for penalty for
offences under the Act, whereas section 4
lays down special rule of evidence to be
applied in the trial of offences under the
Act. Section 5 to 10 contemplates creation
of special Courts to try offences under the
Act, eligibility of the presiding Judge,
place of sitting of special courts and the
nature of offences to be tried and
procedure to be followed by it. Without
volumenising,
it
is
recorded
that
according to section 10 of the Act Special
Judge shall have the Power of a Session's
Judge and shall follow the same warrant
trial procedure which is to be followed by
a Magistrate unless the offence is
punishable
with
imprisonment
not
exceeding three years, in which case it
can try the offence in a summary way in
consonance with sections 263 to 265 of
the code. Section 11 provides for
protection to the witnesses whereas
section 12 mentions that the trial under
the Act shall have precedence over the
trial of other cases. Section 13 registers
the power to transfer the cases to regular
Courts by the Special Court if it finds that
the offences being tried by it is not triable
by it. From section Section 14 to section
17, the Act provides for attachment of
property and it's release. Section 14 lays
2 All] Jangali Pasi Vs. State of U.P. & Anr.
693
down that if the District Magistrate has
reason to believe that any property,
whether
movable
or
immovable,
possessed by any person has been
acquired by gangsterism as a result of
commission of any offence under the Act,
then the District Magistrate can order
attachment of such property irrespective
of the fact whether cognizance of such
offence has been taken by any Court or
not. Sub Section 14 (2) provides that
provisions of Cr.P.C. shall applied
mutatis mutandis to every attachment
carried out under the Act. Section 14(3)
and (4) provides for appointing of an
administrator over the attached property
by the District Magistrate and for police
help to administer such property. Section
15 of the Act provides for applying for
release of the property by any claimant
through an application made to the
District Magistrate within three months
from the date of the knowledge of
attachment. Section 15(2) enact that if the
District Magistrate is satisfied about the
case of the claimant then he can direct the
release of the property from attachment
and thereafter the property shall be
handed over to the claimant. Perusal of
the Section 16 of the Act indicate that if
no representation is made within the
specified period of three months from the
date of the knowledge of attachment or
the District Magistrate does not release
the property to the claimant as is
provided under Section 15(2) of the Act
then he (District Magistrate) shall refer
the matter with his report to the Court
having jurisdiction to try the offences
under the Act. Section 16(2) postulates
that if the District Magistrate does not act
under Section 14(1) of the Act to attach
the property, or releases the property
under Section 15(2) of the Act then the
State
Government
or
any
person
aggrieved by such refusal or release can
make an application to the Court having
jurisdiction to try an offence under this
Act for inquiry for the purposes of
determining whether any property has
been acquired by gangsterism or not?
Pendente lites such inquiry, the court has
been conferred with the power to order
for attachment of such property as was
done in the instant case. Section 16(3) of
the
Act,
which
is
in
two
parts
contemplates in sub section (a) that the
Court on a reference under Sub Section
(1) of Section 16 or on an application
under Sub Section (2) of the said section
shall conduct an inquiry and sub section
(b) provides that on the date so fixed the
Court shall hear the parties, receive
evidences produced by them, take such
further
evidences
as
it
considered
necessary
and
decide
whether
the
property was acquired by a gangster as a
result of commission of an offence under
the Act or not and then shall pass an
order under Section 17 as the case may be
which is necessary in its opinion. Section
16(4) confers same power on the Court
under the Act which is possessed by a
civil court under Code of Civil Procedure
1908 in matters of inquiry. Section 16(5)
of the Act legislates that the burden of
proving that the property or any part
thereof has not been acquired by
gangsterism or by commission of any
offence under the Act shall be on the
person claiming the release of the
property irrespective of any provision to
the contrary contained in the Indian
Evidence Act. Section 17 of the Act
provides that upon such an inquiry if the
Court finds that the property was not
acquired by a gangster as a result of
commission of any offence under the Act
then the Court shall order for release of
such property to the person from whose
694
 INDIAN LAW REPORTS ALLAHABAD SERIES
possession it was attached. In any other
case, the Court may make such orders as
it deems fit for disposal of such property
either by attachment, confiscation or
delivery to any person entitled to
possession thereof or otherwise. Section
18, which is the apple of discard between
the rival sides, legislates and provides for
applicability of chapter XXIX of the Code
in an appeal preferred under the Act. For
a clear understanding of the legislative
intent, Sections 17 and 18 of the Act are
reproduced below:- .
"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.
18. Appeal- The provisions of
Chapter XXIX of the Code shall mutatis
mutandis, apply to an appeal against any
judgment or order of a Court passed
under the provisions of this Act."
From the two referred statutory
provisions it is abundantly clear that
Sections 14 to 17 of the Act, which deals
with
attachment/non
attachment
or
release of any property in question is
analogous to sections 451, 452, and 457
of the Code. For a ready reference, the
aforesaid provisions of Cr.P.C. are
registered herein below:-
"451. Order for custody and disposal
of property pending trial in certain casesWhen any property is produced before
any Criminal Court during any inquiry or
trial, the Court may make such order as it
thinks fit for the proper custody of such
property pending the conclusion of the
inquiry or trial, and, if the property is
subject to speedy and natural decay, or if
it is otherwise expedient so to do, the
Court may, after recording such evidence
as it thinks necessary, order it to be sold
or otherwise disposal of.
Explanation- For the purposes of this
section, "property" includes-
(a) property of any kind or document
which is produced before the Court or
which is in its custody.
(b) any property regarding which an
offence appears to have been committed
or which appears to have been used for
the commission of any offence.
452. Order for disposal of property
at conclusion of trial- (1) When an
inquiry or trial in any Criminal Court is
concluded, the Court may make such
order as it thinks fit for the disposal, by
destruction, confiscation or delivery to
any person claiming to be entitled to
possession thereof or otherwise, of any
property or document produced before it
or in its custody, or regarding which any
offence appears to have been committed,
or which has been used for the
commission of any offence.
(2) An order may be made under
sub-section (1) for the delivery of any
property to any person claiming to be
entitled to the possession thereof, without
any condition or on condition that he
executes a bond with or without sureties,
to the satisfaction of the Court, engaging
to restore such property to the Court if the
order made under sub-section (1) is
modified or set aside on appeal or
revision.
(3) A Court of Session may, instead
of itself making an order under subsection (1), direct the property to be
delivered to the Chief Judicial Magistrate,
2 All] Jangali Pasi Vs. State of U.P. & Anr.
695
who shall thereupon deal with it in the
manner provided in sections 457, 458 and
459.
(4) Except where the property is
livestock or is subject to speedy and
natural decay, or where a bond has been
executed in pursuance of sub-section (2),
an order made under sub-section (1) shall
not be carried out for two months, or
when an appeal is presented, until such
appeal has been disposed of.
(5)
In
this
section,
the
term
"property" includes, in the case of
property regarding which an offence
appears to have been committed, not only
such property as has been originally in
the possession or under the control of any
party, but also any property into or for
which the same may have been converted
or exchanged, and anything acquired by
such conversion or exchange, whether
immediately or otherwise.
457. Procedure by police upon
seizure of property-
(1) Whenever the seizure of property
by any police officer is reported to a
Magistrate under the provisions of this
Code, and such property is not produced
before a Criminal Court during an
inquiry or trial, the Magistrate may make
such order as he thinks fit respecting the
disposal of such property or the delivery
of such property to the person entitled to
the possession thereof, or if such person
cannot be ascertained, respecting the
custody and production of such property.
(2) If the person so entitled is known,
the Magistrate may order the property to
be delivered to him on such conditions (if
any) as the Magistrate thinks fit and if
such person is unknown, the Magistrate
may detain it and shall, in such case,
issue a proclamation specifying the
articles of which such property consists,
and requiring any person who may have a
claim thereto, to appear before him and
establish his claim within six months from
the date of such proclamation."
What is noticeable here is that an
order under sections 452 and 453 of the
Code is appealable under section 454
thereof. The special provision has been
enacted under the Act for a solemn
purpose to deter an individual and /or
public to acquire property by commission
of offences under the Act and thereby to
curb
the
activities
of
gangsterism.
Attachment and release of property or any
order of such a nature dealing with
disposal of any property by a court has
serious consequences of far reaching
effects and it impinges upon the right to
property
of
an
individual
and
consequently, under the code such types
of orders are made appealable under
section 454 thereof. For a ready reference
Section
454
Cr.P.C. is
reproduced
below:-
"454. Appeal against orders under
section 452 or section 453.- (1) Any
person aggrieved by an order made by a
Court under section 452 or section 453,
may appeal against it to the Court to
which
appeals
ordinarily
lie
from
convictions by the former Court.
(2) On such appeal, the Appellate
Court may direct the order to be stayed
pending disposal of the appeal, or may
modify, alter or annul the order and make
any further orders that may be just.
(3) The powers referred to in subsection (2) may also be exercised by a
Court of appeal, confirmation or revision
while dealing with the case in which the
order referred to in subsection (1) was
made."
Now, turning towards the Act it is
recorded that the Act is not a self
contained Code. For innumerable aspects
of
trial
procedure
and
for
many
696
 INDIAN LAW REPORTS ALLAHABAD SERIES
interlocutory matters it falls back on the
Code. What is of significance here is that
the Act does not provide anywhere what
orders are appealable and what are not?
Under section 18 only this much has been
legislated that chapter XXIX of the Code
shall mutatis mutandis apply to an appeal
against any judgment and order of a court
passed under the provisions of this Act.
Thus the Act confers right to appeal
against all orders and judgment of a court
under it as the words " an appeal" and
"any judgment and order" occurring in
section 18 are of enormous magnitude. In
consonance
with
the
Principles
of
interpretation of Statute and harmonious
construction of various statutes, these
words should be taken to preserve all
appeals provided under the Code. The
meaning attached to these words can not
be restricted in it's scope only to take in
it's purview convictions and sentences
passed under the Act. Divastation of once
property has got enormous detrimental
civil consequences which even can not be
recouped in future and in such matters the
remedial remedy of appeal can and
should not be squeezed from an aggrieved
person by the courts when they are called
upon to fillup the grey areas left by the
legislature in matters of interpretation of
a statutory provision. It seems that it is
because of this reason that section 454
has been enacted in the code and
therefore benefit of the said right under
the Act to an individual should not be
denied against consequentially analogous
orders, especially when there is no
legislative intent to the contrary, as the
Act is silent on the aspects as to which
orders are appealable and which are not?
Another dimensional facet of the
involved issue is that courts are required
to adopt warrant trial or summary trial
procedures while prosecuting an accused
as is mandated under section 10 of the
Act. Various orders in those trial
procedures are appealable. Once the Act
does not carve out any exception in
matters
of
appeal
in
those
trial
procedures, it will be very injudicious to
read them in a statute (Act), as doing so
will amount to legislate, which the courts
are not capable of. Besides 454, other
exempler appealable sections are 86, 341,
351, and 449 of the Code. More over the
two trial procedures, in it's application to
offences under the Act and those of IPC
and other statutes, can not be bifurcated
into two. If the trial procedure provides
for filing of an appeal against any order
passed during the trial , then those orders
shall be appealable under the Act as well.
Drawing of such an opinion can be
countenanced even on the basis of the
words used in section 372 of the code as
well which falls under chapter XXIX
thereof.
Section
372
of
the
Code
postulates that no appeal shall lie from
any judgment or order of a criminal
Court except as is provided in the Code or
in any other law for the time being
enforce. The said section clearly indicates
that an appeal shall lie from a judgment
and order of a criminal court, if it is so
provided under the Code or under any
other statute in vogue. This section,
therefore, imbibes in itself all appeals
under Sections 86,341,351, 454 and 449
of the code. In this connection, Section
386 (d) is also noticeable and is of much
significance as it provides as follows:-
"386. Powers of the Appellate
Court.- After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he
appears, and in case of an appeal under
Section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it
2 All] Jangali Pasi Vs. State of U.P. & Anr.
697
considers that there is no sufficient
ground for interfering, dismiss the appeal,
or may-
(a) ...........................................
(b) ...........................................
(c) ...........................................
(d) in an appeal from any other
order, alter or reverse such order;
(e) .........................................."
Thus a co-joint reading of Section
372 and 386(d) of the code conspicuously
lays down maintainability of all appeals
provided under the code. Since section 17
of the Act is an analogous provision of
sections 451, 452 and 457 Cr.P.C., the
same will be appealable under chapter
XXIX of the Code as all appeals under the
Act has to be dealt with under that
chapter. I am also fortified in my view
from the phraseology of Section 18 f the
Act, which provides that the provisions of
appeal under Chapter XXIX shall mutatis
mutandis apply to an appeal under the
Act. Section 18 has been couched in a
general phraseology and, therefore, it has
to be read in conjunction with chapter
XXIX of the Code. Eikly, in matters of
appeal under Section 15 of the Act
Cr.P.C. will also apply as Section 2 of the
Act
specifically
provides
for
its
application. It will be preposterous to
cogitate that the offences under the
Gangsters Act, which is an off shoot of
various offences mentioned under the
penal code and other statutes will be tried
differentially and will have different
appealable sections than that of Cr.P.C. If
the legislative intend was that only a
conviction and sentence passed under the
Act be made appealable, the legislature
would have provided for such an
eventuality which it has not done
consciously as it was conscious of the fact
that the attachment, confiscation or
disposal of property in any manner has
got serious consequences as it even
impinges upon the right to property of a
citizen of this country. To accept the
argument of learned counsel for the
respondents, in this respect will lead to
hazardous consequences. If a person is
deprived of his property without any right
of appeal, that will be in direct
contradiction with the provisions of Code
of Criminal Procedure.