# Shilendra Singh v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-19
- **Case number:** Matter Under Art. 227 No. 9002 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shilendra-singh-v-state-of-u-p-ors-45633
- **Pages:** 7

## Headnote

A. Constitution of India,1950-Article 227 -
Uttar Pradesh Gansters and Anti Social
Activities (Prevention) Act, 1986-Section 18maintainibility
of
-release
of
attached
property of the petitioner-he was required to
disclose the source of his income as he had
no source of income or ancestral propertythe properties, prima facie, held to be
proceed of crime as sixteen cases registered
against him-the property were ordered to be
attached and appointed receiver to dispose of
the same-petitioner can avail his remedy of
appeal u/s 18 of the Act as the Act provides
equally efficacious alternative remedy to the
petitioner.(Para 2 to 13)

The Petition is dismissed. (E-6)

List of Cases cited: -

## Text

526 INDIAN LAW REPORTS ALLAHABAD SERIES
over possession in execution proceedings.
The re-entry is being claimed after
conclusion of the entire proceeding upto
Hon'ble Supreme Court against him.
Hence, on facts and provisions of law both,
where restitution was claimed under
Section 144 CPC (and Section 24 of the UP
Act 13 of 1972 was not involved) the case
of Anand Kumar (supra) is distinguishable.

19. There is yet another aspect to
distinguish Anand Kumar (supra). In such
matter, as observed by the Hon'ble
Supreme Court in Hameed Kunju vs.
Nazim, (2017) 8 SCC 611 (para 29) once
the possession had been delivered and
decree was recorded as satisfied in
accordance with law, the litigation had
come to an end leaving no lis pending.
Paragraph 29 of the said judgement is
quoted as under:

" 29. In our considered view, once the
possession had been delivered and decree
was recorded as satisfied in accordance
with law, the litigation had come to an end
leaving
no
lis
pending.
In
these
circumstances, in the absence of any prima
facie case having been made out on any
jurisdictional issue affecting the very
jurisdiction of the court in passing the
eviction decree, the High Court should
have declined to examine the legality of
four orders impugned therein."

20. Thus, I do not find any prima facie
jurisdictional error or issue involved in the
present case and thus, I do not find any
good ground to interfere in the impugned
judgement in exercise of powers under
Section 227 of the Constitution of India.

21. Present petition is devoid of merit
and is accordingly dismissed.
----------
(2020)12ILR A526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Art. 227 No. 9002 of 2019

Shilendra Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Fakhruzzaman.

Counsel for the Respondents:
A.G.A.

A. Constitution of India,1950-Article 227 -
Uttar Pradesh Gansters and Anti Social
Activities (Prevention) Act, 1986-Section 18maintainibility
of
-release
of
attached
property of the petitioner-he was required to
disclose the source of his income as he had
no source of income or ancestral propertythe properties, prima facie, held to be
proceed of crime as sixteen cases registered
against him-the property were ordered to be
attached and appointed receiver to dispose of
the same-petitioner can avail his remedy of
appeal u/s 18 of the Act as the Act provides
equally efficacious alternative remedy to the
petitioner.(Para 2 to 13)

The Petition is dismissed. (E-6)

List of Cases cited: -

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors.,(1998) 8 SCC 1

2. Jangali Pasi Vs St. of U.P. Thru Secy. &
anr.,(2015) 3 ALJ 673

3. St. of U.P. Vs Nasim Khan & ors.,
Government Appeal No,- 6042 of 2010

(Delivered by Hon'ble J.J. Munir, J.)
12 All. Shilendra Singh Vs. State of U.P. & Ors.
527
1. The petitioner, Shilendra Singh, has
instituted this petition under Article 227 of
the Constitution, praying that a writ, order
or direction in the nature of certiorari be
issued, quashing an order passed by the
learned
Special
Judge
(Gangsters
Act)/Additional Sessions Judge, Court No.
6, Jhansi dated 13.09.2019, made in G.S.T.
Misc. No. 454 of 2017, accepting the
District
Magistrate's
reference
under
Section 16 (1) of The Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 19861. Also challenged is
the order of the District Magistrate, Jhansi
dated 08.08.2017, ordering attachment of
three motor vehicles of the petitioner under
Section 14 (1) of the Act, 1986, and a
further order dated 22.11.2017 passed by
the District Magistrate last mentioned,
rejecting the petitioner's representation
made under Section 15(1), seeking release
of the said property and making a reference
along with his report to the Court under
Section 16 (1) of the Act, 1986.

2. It must be remarked at the outset
that in a petition under Article 227 of the
Constitution, no order in the nature of a
writ, mentioned in Article 226 of the
Constitution, can be asked for. The
distinction between a writ petition under
Article 226 of the Constitution and a
petition under Article 227 is substantial and
clear. The prayer, therefore, made in this
petition is not worded the way, it ought to
be in a petition under Article 227 of the
Constitution. Nevertheless, this petition
being one under Article 227 of the
Constitution, this Court proceeds to treat
the prayer as one made to set aside the
impugned orders above described, invoking
the supervisory jurisdiction of this Court.

3. This petition has not been admitted
to hearing formally, though this Court
required the State to file a counter affidavit
within two weeks, vide order dated
29.11.2019. The State has filed a counter
affidavit in the matter on 08.01.2020,
which is on record. On 18.02.2020, this
Court passed the following order :

"Learned counsel for the petitioner is
hereby directed to show case laws about
maintainability
of
the
writ
petition
particularly keeping in view the provisions
provided under Section 18 of the U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act.

Put up this matter as fresh on
27.02.2020."

4. Heard Sri Fakhruzzaman, learned
counsel for the petitioner and Sri Arvind
Kumar, learned Additional Government
Advocate appearing on behalf of the State.
Learned A.G.A. has pressed his objection
to the effect that this petition under Article
227 of the Constitution is not maintainable,
as the impugned order dated 13.09.2019, in
G.S.T. Misc. No. 454 of 2017, is
appealable under Section 18 of the Act,
1986 to this Court. This Court proposes to
dispose of that objection in the first
instance.

5. It appears that the petitioner was
served with a notice dated 08.08.2017
under Section 14 (1) of the Act, 1986,
detailing a list of some 16 cases registered
against him between the years 2004-17,
most of which were pending trial in
different courts at the time. He was
required to disclose the source of his
income to acquire three motor vehicles, two
tractors and a Pulsar motorcycle, indicating
clearly that according to the police report,
he had no source of income or ancestral
property
to
furnish
the
necessary
wherewithal. The properties were, prima
528 INDIAN LAW REPORTS ALLAHABAD SERIES
facie, held to be proceeds of crime, relevant
under the Act, 1986 and, therefore, liable to
be attached. The properties were ordered to
be attached as an interim measure, pending
the petitioner's representation that he may
prefer under Section 15 (1) of the Act,
1986. The petitioner preferred a statutory
representation, disclosing the source of
acquisition
of
these
movables.
The
representation is one dated 25.09.2017. The
District Magistrate proceeded to reject this
representation
by
his
order
dated
22.11.2017 made in Case No. 5 of 2017,
under Section 14 (1) of the Act, 1986. The
District Magistrate having declined to
release the attached movables, a reference
was made to the court under Section 16 (1).
It was on the basis of the aforesaid
reference made by the District Magistrate
that G.S.T. No. 454 of 2017, State v.
Shilendra Singh, was registered on the file
of the learned Special Judge (Gangsters
Act)/Additional Sessions Judge, Court No.
6, Jhansi. On receipt of the reference, the
learned Judge fixed a date, holding an
enquiry with notice to the petitioner and the
State Government. The learned Judge
recorded evidence led by parties, where
two witnesses on behalf of the petitioner, to
wit, O.P.W.1, the petitioner himself and
O.P.W.2, his father Vishal Singh testified.
The Court, on a perusal of the evidence on
record, proceeded to accept the reference
and affirmed the order of the District
Magistrate dated 22.11.2017, attaching the
petitioner's property. The attached property
was ordered to be confiscated, with the
Collector being appointed receiver to
dispose of the same.

6. Learned counsel for the petitioner
argues that the impugned order has been
passed without application of mind and
ignoring material evidence, that clearly
show that the property has not been
acquired through unlawful means. It is
urged that he has been falsely implicated in
a number of cases, mala fide. Learned
counsel for the petitioner has drawn
attention of the Court towards the record,
where a final report has been submitted or
he has been acquitted, which, according to
the learned counsel, constitute relevant
material that has been ignored by the
learned Trial Judge. He submits that this is
a case where the petitioner ought not to be
relegated to the alternative remedy of
appeal under Section 18 of the Act, 1986,
in view of the law laid down by Supreme
Court
in
Whirlpool
Corporation
v.
Registrar of Trade Marks, Mumbai and
others2. It is urged, on the strength of the
said decision and otherwise also as a wellacknowledged principle, that in exercise of
our jurisdiction under Article 226 of the
Constitution, the bar of alternative remedy
is not absolute. He submits that Whirlpool
Corporation (supra) carves out three
distinct exceptions, where the bar of
alternative remedy is not at all attracted. He
submits that in the present case, the
proceedings against him are without
jurisdiction
and
in violation
of his
fundamental rights under Articles 14 and
15 of the Constitution. Once that is his
case, the petitioner cannot be relegated to
avail his alternative remedy under the Act,
1986.

7. This Court has keenly considered
the matter. A perusal of the material on
record and the course of proceedings do not
indicate it to be a case where one or the
other exceptions to the rule of alternative
remedy may be attracted. It is true that the
rule of alternative remedy does not oust this
Court's jurisdiction under Article 226 of the
Constitution, but at the same time, the rule
is one which has to be applied judiciously,
and not arbitrarily. Here, the Court finds
12 All. Shilendra Singh Vs. State of U.P. & Ors.
529
that the impugned order is one passed by
the learned Judge on the basis of a competent
reference made by the District Magistrate,
under Section 16 (1) of the Act, 1986. The
reference has been heard and decided, granting
opportunity to all parties to this petition. The
procedure prescribed for hearing a reference,
consistent with the principles of natural justice
has been adhered to. There is no breach of the
provisions of Section 16 (3) or 16 (4) of the Act,
1986. The order impugned, therefore, cannot be
said to be without jurisdiction. The learned Trial
Judge has recorded evidence, where the
petitioner and his father have appeared in the
witness box and testified in support of their
case. There is no grievance made, so far as
violation of the petitioner's fundamental rights
under Articles 14 and 21 of the Constitution are
concerned. There is no material pointed out,
which may show in what manner those rights,
enshrined in Part III of the Constitution, have
been violated by the learned Judge while
passing the order impugned.

8. Learned counsel for the petitioner
submits that a writ petition under Article
226 of the Constitution can, nevertheless,
be heard against the order impugned that
has
drastic
civil
consequences
of
confiscating the petitioner's property. He
emphasizes that the right to property is
enshrined under Article 300A of the
Constitution, though not a fundamental
right. It ought to be safeguarded by this
Court by doing a review of the order
impugned, under which the petitioner has
been deprived of his property. In this
connection, reference has been made to the
relevant provisions of the Act, 1986 that
are carried in Sections 14 to 18. These read
:

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

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

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

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

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

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

16. Inquiry into the character of
acquisition of property by Court.- (1)
Where no representation is made within the
period specified in sub-section (1) of
Section 15 or the District Magistrate does
not release the property under sub-section
(2) of Section 15 he shall refer the matter
530 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
12 All. Shilendra Singh Vs. State of U.P. & Ors.
531

9. If one were to accept that the order
under Section 17 of the Act, 1986 made by
the Judge or Court on a reference by the
District Magistrate under Section 16 (1) is
an order of drastic civil consequences,
confiscatory in nature, an aggrieved party is
not remediless. The entire scheme of
appeals provided under Chapter XIX of
The Code of Criminal Procedure, 1973 is
available under the Act, 1986. Learned
counsel for the petitioner submits that the
impugned order passed by the Court is not
specifically made appealable under Section
18 of the Act, 1986, as it does not say that
an order under Section 17 would be
appellable. Section 18 provides in general
terms that any judgment and order of a
court, passed under the provisions of the
Act, 1986, would be appealable. This issue
need not detain this Court for long,
inasmuch as an order of the Court passed
under Section 17, accepting a reference by
the Collector under Section 16 (1) of the
Act, 1986 or any order made under Section
17, has been held to be appealable under
Section 18 by a Division Bench of this
Court in Jangali Pasi v. State of U.P. Thru
Secy. and Another3, where it has been held
:

The 1986 Act therefore has to be
read as a complete Code in itself so as to
provide such benefit of appeal which the
legislature appears to have intended under
Section 18. Applying the interpretive tool,
Section 18 categorically provides an appeal
against any judgment or order* and then
mutatis mutandis applies Chapter XXIX of
the Cr.P.C. to such an appeal. Judges while
interpreting such provisions have to adopt
the legalistic method as well as the
pragmatistic method as they are said to
wear two hats. This distinguishes them
from mere umpires and they enjoy a more
certain interpretive freedom by applying
reasoning through analogy in order to
interpret and explain cannons of statutory
construction. Applying the said principles,
we are also of the opinion that Section 18
does not contain any prohibitive language
nor does it give a restrictive meaning to the
right of appeal against any judgment or
order under the Act which is a special act.
This therefore includes the right of an
appeal against an order refusing to release
attached property. The interpretation has to
be meaningful and that which advances the
cause of justice.**

10. In Jangali Pasi (supra), it has
further been held :

Having considered the above, we
therefore find ourselves in full agreement
with the judgment of the learned Single
Judge in the case of Kailash Sahkari Awas
Samiti (supra) which lays down the law
correctly and an appeal against an order
refusing to release attachment under
Section 17 of the 1986 Act would be
maintainable under Section 18 of the same
Act.

11. The said decision has been
followed by another Division Bench of this
Court in State v. U.P. v. Nasim Khan and
Others, Government Appeal No. - 6042 of
2010, decided on 06.12.2016, where it has
been held :

We
find
ourselves
in
full
agreement with the judgment and order
dated 16.4.2015 passed by the Division
Bench of this Court in the Criminal Misc.
Writ Petition No. 8053 of 2015 (Jangali
Pasi Vs. State of U.P. through Secretary
and another) with regard to maintainability
of the appeal under section 18 of the Uttar
Pradesh
Gangsters
and
Anti
Social
Activities (Prevention) Act, 1986 filed
532 INDIAN LAW REPORTS ALLAHABAD SERIES
against the order passed under section 17 of
the same Act, as such, the present appeal
filed against the impugned judgment and
order dated 23.7.2010 is maintainable.

12. In view of aforesaid clear position
of law, there is no good reason for this
Court to entertain this petition. It is,
accordingly, dismissed on the ground of
availability of an equally efficacious
alternative remedy.

13. It will, however, be open to the
petitioner to avail his remedy of appeal, as
envisaged under the Act, 1986.
----------
(2020)12ILR A532
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.

Crl. Rev. No. 317 of 2020

Hradyansh ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist
Sri Mahadeo Singh Chandel.

Counsel for the Opp. Parties:
A.G.A., Sri Gyan Prakash

Criminal Law- Indian Penal Code, 1860 -
Juvenile
Justice
Act,2015-
Section
302,307,504 -bail refused to applicant who
is minor- -aged about 13 years and 11
months-main role of his father-another coaccused is his brother-he has been granted
bail-Applicant was a juvenile at the time of
incidence-does not have criminal historyobservation of D.P.O.-don't appear to be
prone to criminal psychology- no other
factor exist as per section 12 of the ActRevision allowed-released on bail.
Revision allowed. (E-9)

List of Cases cited:-

1. Shiv Kumar @Sadhu Vs St. of U.P. 2010 (68)
ACC 616(LB);

2. Abdullah @ Abdul Hassan Vs St. of U.P. &
ors. [2015 (90) ACC 204];

3. Maroof Vs St. of U.P. & anr. [2015 (6) ADJ
203];

4. Criminal Revision No. 112 of 2015 (Suraj @
Ashok Sukla Thru. Father Mahendra Shukla Vs
St. of U.P. & anr.)

5. Amit Kumar Vs St.of U.P. 2010(71) ACC 209
decided on 02.07.2015.

6. Sanjay Chaurasia Vs St. of U.P. 2006 Cr.L.J.
2957

7. A. Juvenile Vs St. of Orissa, 2009 Cr.L.J., 2002,

8. Kamal Vs St. of Har., 2004 (13) SCC 526

9. Takht Singh Vs St. of M.P., 2001 (10) SCC
463

10. Dharmendra (Juvenile) Vs St. of U.P. & ors.,
[2018 (7) ADJ 864]

11. Japani Sahoo Vs Chandra Sekhar Mohanty,
(2007) 7 SCC 394

(Delivered by Hon'ble Deepak Verma, J.)

1. Heard Sri Mahadeo Singh Chandel,
learned counsel for the revisionist, Sri
Gyan Prakash, learned counsel for the
opposite party no.2 and learned A.G.A for
the State and perused the record.

2. This revision is directed against the
judgment and order dated 21.12.2019
passed
by
Additional
Session
Judge/(F.T.C.-1)/Special Judge (POCSO
Act) Banda dismissing the Criminal Appeal