# Smt. Rashida Bano v. State of U.P. & Ors

- **Citation:** (2014) 1 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-17
- **Case number:** Criminal Misc. Writ Petition No. 7534 of 2010
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rashida-bano-v-state-of-u-p-ors-42878
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-readwith U.P.
Gangsters & Anti Social Activities(Prevention)
Act 1986-Rejection-to release the house by
the District Magistrate as well as Special
Court-on presumption the house owned
from
illegal
criminal
activities
of
her
husband-inspite of producing the document
of ITR, Bank Loan, as well as Sale deedRegistered 7 years ago-from registration of
gangsters
case-
without
considering
objection-rejection held illegal-order passed
by authorities quashed-D. M. To pass well
reasoned speaking order within 6 month.

Held:Para-15
For the aforesaid reasons and in the
wake of legal position cited above, both
the impugned orders passed by the
District Magistrate Varanasi and Special
Judge, Gangster Varanasi are liable to be
quashed because both the courts have
failed to assign any reason as to how the
property purchased about 7 years prior
to the registration of the case under
Gangsters Act against the husband of the
petitioner
was
attached
by
District
Magistrate under section 14 of the
Gangster Act.

Case Law Discussed:
2012(76) ACC 164.

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES

Agencies and it is not a matter in which the
Court should interfere. In the light of the
aforesaid, we find that the authorities were
justified in withdrawing the security.

18. We also find that the respondents
were justified in downgrading the security
and providing security only for the purpose
of taking the petitioner from his residence to
the Court and back. In the light of the
aforesaid, we do not find any reason to
interfere in the action of the State.

19. Writ petition accordingly fails
and is dismissed.

20. We also direct the District Level
Committee to review the threat perception
on a month to month basis and thereafter
take further action of providing security.

21. The report which was provided
to us in a sealed cover which the Court
has perused, will be kept in the sealed
cover and shall become part of the record.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No. 7534 of 2010

Smt. Rashida Bano....................Petitioner
Versus
State of U.P. & Ors...............Respondents

Counsel for the Petitioner:
Sri Brijesh Yadav

Counsel for the Respondents:
A.G.A., Sri Atul Kumar

Constitution of India, Art.-226-readwith U.P.
Gangsters & Anti Social Activities(Prevention)
Act 1986-Rejection-to release the house by
the District Magistrate as well as Special
Court-on presumption the house owned
from
illegal
criminal
activities
of
her
husband-inspite of producing the document
of ITR, Bank Loan, as well as Sale deedRegistered 7 years ago-from registration of
gangsters
case-
without
considering
objection-rejection held illegal-order passed
by authorities quashed-D. M. To pass well
reasoned speaking order within 6 month.

Held:Para-15
For the aforesaid reasons and in the
wake of legal position cited above, both
the impugned orders passed by the
District Magistrate Varanasi and Special
Judge, Gangster Varanasi are liable to be
quashed because both the courts have
failed to assign any reason as to how the
property purchased about 7 years prior
to the registration of the case under
Gangsters Act against the husband of the
petitioner
was
attached
by
District
Magistrate under section 14 of the
Gangster Act.

Case Law Discussed:
2012(76) ACC 164.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. By means of this writ petition, the
petitioner has prayed for quashing the
order dated 10.2.2010 passed by Special
Judge, Gangster Act, Varanasi and the
order dated 6.8.2009 passed by the
District Magistrate, Varanasi.

2. The petitioner has also prayed to
command the respondents by issuing a
writ of mandamus to release his property
consisting of House No.C-17/41, situated
at Mohalla Lahang, P.S. Sigra, District
Varanasi in favour of the petitioner.

3. Heard Shri Brijesh Yadav, learned
counsel for the petitioner, learned AGA
appearing for the State and perused the record.
1 All] Smt. Rashida Bano Vs. State of U.P & Ors.

467

4. Some background facts in brief are
that a criminal case under Section 3 (1) U.P.
Gangsters& Anti-Social Activities (Prevention)
Act, 1986 (hereinafter referred to as " Gangster
Act") was lodged against the husband of the
petitioner at Crime No.729 of 2008 at P.S.
Sigra, Varanasi. In Gang chart two separate
offences were shown against the applicant i.e.
Case Crime No. 11 of 2006 under section 302,
120-B IPC P.S. Sigra, Varanasi and Case
Crime No.297 of 2008 under Section 302 IPC
and Section 7 Criminal Law Amendment Act
at P.S. Sigra, District Varanasi.

5. The S.O. Sigra submitted a report
on 28.11.2008 through S.S.P., Varanasi to
District Magistrate, Varanasi stating that the
property of the accused, (the details of
which are mentioned above), was acquired
by him as a result of commission of offence
triable under the Gangster Act. The District
Magistrate, Varanasi issued a notice to the
applicant/petitioner
and
attached
the
property vide his order dated 15.1.2009.

6. The applicant-petitioner filed her
objections along with her affidavit before the
District Magistrate, Varanasi, but the District
Magistrate Varanasi, refused to release the
attached property in favour of the petitioner.
As per the provisions of Section 16 (1) of
Gangster Act, the District Magistrate, on
17.8.2009 referred the matter to Special Court
constituted under Gangster Act, Varanasi.
Being aggrieved by such order of refusal, the
applicant also moved an application under
Section 16(2) of the Gangster Act.

7. The learned Special Judge, Gangster
Act, Varanasi vide order dated 10.2.2010
rejected her application on the ground that
the applicant has failed to produce any
document to show from what source of
income the said house was purchased in the
year 1999 and from what source of income
the petitioner and her husband have raised
further constructions in the house.

8. Learned counsel for the petitioner
has challenged both the aforesaid orders
passed by District Magistrate and Special
Judge, Vranasi by contending that the
property that has been attached was not
acquired
by
the
husband
of
the
applicant/petitioner as a Gangster. The
said house was purchased by the applicant
by their joint income as both of them are
in the business of glass for last more than
15 years. They have raised the house
further
by
obtaining
a
loan
of
Rs.8,00,000/- from Kashi Gramin Bank.
Learned counsel for the petitioner has
argued that in order to prove these
averments the petitioner/applicant had
filed before the courts below the income
tax returns of herself and her husband.
She had also filed the original copy of
notice of Kashi Gramin Bank dated
27.11.2009 issued to applicant and her
husband with regard to loan. But learned
District Magistrate and learned Special
Judge without any reason, presumed that
the property was acquired by the husband
of petitioner by commission of crime.

9. Learned counsel for the petitioner
has further argued that two cases shown in
the Gang Chart on the basis of which the
case under Gangster Act was instituted
against the petitioner's husband pertain to
year 2006 and 2008 whereas the house was
purchased in the year 1999 i.e. about 7 years
prior to the institution of the two criminal
cases. In these circumstances, it cannot be
said that the house was purchased by
committing any crime. There was no history
of any offence against the husband of the
petitioner prior to the two cases registered in
the year 2006 and 2008, so the house could
not have been attached under Section 14 of
468 INDIAN LAW REPORTS ALLAHABAD SERIES

Gangster Act. But due to the illegal
attachment of the house the family members
of the petitioner are on road because they
have no other house to live. It has further
been alleged that the glasses of window
panes were also broken by the police causing
huge loss to the petitioner.

10. Learned AGA appearing on
behalf of respondent no.1 has opposed the
writ petition. Counter affidavit has been
filed on behalf of respondent no.3,
i.e.S.S.P. Varanasi.

11. After hearing learned counsel
from both the sides and after a careful
perusal of the legal provisions and the
relevant records, this court is of the view
that the writ petition deserves to be
allowed for the following reasons:-

12. The relevant provision regarding
the attachment and release of property,
provided in Gangster Act are Section 14
and 15. Section 14 of the Act is
reproduced below:-

Section-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."

13. Thus the Act clearly provides that
before passing orders for attachment of
property under section 14 of the Act, the
District Magistrate must have reasons to
believe that the property has been acquired by
a Gangster as a result of the commission of an
offence triable under this Act. But the facts of
the case in hand depicts otherwise and
specially the facts as mentioned in para 10 of
the counter affidavit filed on behalf of SSP,
Varanasi, raise doubts and put a big question
mark on the legality of the orders passed by
the District Magistrate, and Special Judge,
Varanasi. In para 10 of the counter affidavit
filed on behalf of S.S.P., Varanasi it has been
stated that although the husband of the
petitioner was indulged in commission of
crime since 1997-98 but the criminal cases
were registered against him in the year 20062008. This statement of S.S.P. Varanasi
appears ridiculous and on the basis of this
statement, only two conclusions can be
drawn. First either the police become so much
lethargic and irresponsible that despite
knowing that a gangster was indulging in
criminal activity since the year 1997-98, it
registered the case against him in the year
2006-2008 i.e. after expiry of about 10 years.
The second conclusion is that it was a
deliberate act on the part of police in order to
provide illegal help to the gangster by
abstaining from taking lawful measures
against him and if that was so, the concerned
police officers may face prosecution under
Section 3(2) of Gangster Act.

14. In a land mark case Smt. Afzal
Begam vs. State of U.P.., 2012 (76) ACC
164 it has been held that :

Property-Subject matter of attachment ?
"It is now well settled that the property being
made subject matter of an attachment under
section 14 of the Act must have been
acquired by a Gangster and that too by
commission of an offence triable under the
Act. The District Magistrate has to record his
satisfaction on this point. The satisfaction of
the District Magistrate is not open to
1 All] Rachna Gupta Vs. Union of India

469
challenge
in
any
appeal.
Only
a
representation is provided for before the
District Magistrate himself under Section 15
of the Act and in case he refuses to release
the property on such representation, he is to
make a reference to the Court having
jurisdiction to try an offence under the Act.
The Court, while dealing with the reference
made under sub-section (2) of Section 15 of
the Act has to see whether the property was
acquired by a gangster as a result of
commission of an offence triable under the
Act and has to enter into the question and
record his own finding on the basis of the
enquiry held by him under Section 16 of the
Act. If the Court came to the conclusion that
the property was not acquired by the gangster
as a result of commission of an offence
triable under the Act, the Court shall order
for release of the property in favour of the
person from whose possession it was
attached. If the conclusion for the Court is
otherwise, it may pass 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.........."

"The court is not expected to act as a
Post Office or mouth piece of the State or the
District Magistrate. If a person has no
criminal history during the period the
property was acquired by him, how the
property can be held to be a property
acquired by or as a result of commission of
an offence triable under the Act is a pivotal
question which has to be answered by the
Court. Besides, the aforesaid question, the
other important question to be considered by
the Court is whether the property which was
acquired prior to the registration of the case
against the accused under the Act or prior to
the registration of the first case of the gang
chart can be attached by the District
Magistrate under Section 14 of the Act..."

15. For the aforesaid reasons and in the
wake of legal position cited above, both the
impugned orders passed by the District
Magistrate Varanasi and Special Judge,
Gangster Varanasi are liable to be quashed
because both the courts have failed to assign
any reason as to how the property purchased
about 7 years prior to the registration of the
case under Gangsters Act against the
husband of the petitioner was attached by
District Magistrate under section 14 of the
Gangster Act.

16. Accordingly, the writ petition is
allowed. The order dated 10.2.2010
passed by Special Judge, Gangster Act,
Varanasi and the order dated 6.8.2009
passed
by
the
District
Magistrate,
Varanasi are hereby quashed.

17. It is further directed that if the
petitioner
moves
an
application/representation before the District
Magistrate, Varanasi for release of her house
with a certified copy of this order and other
relevant documents, the District Magistrate,
Varanasi shall dispose of her representation
by a reasoned and speaking order in
accordance with law within a period of six
weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2014

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

Service Single No. 7910 of 2010

Rachna Gupta............ ..........Petitioner
Versus
Union of India..... ..............Respondent

Counsel for the Petitioner:
Sri Vijay Dixit
Counsel for the Respondent: