# State of U.P v. Arif Anwar Hashmi & Ors

- **Citation:** (2023) 3 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Application U/S 378 No. 17 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-arif-anwar-hashmi-ors-49856
- **Pages:** 5

## Headnote

(A) - Criminal Law - Criminal Procedure
Code, 1973 - Sections 378, 462 & 465 -
U.P. Gangsters and Anti Social Activities
(Prevention) Act, 1986 - Sections 3(1) &
18 - Application for Leave to Appeal - impugned
order passed beyond jurisdiction of the court -
appeal opposed by the respondents on the
ground of Section 462 & 465 of Cr.P.C. - court
finds that, if there is any specific designated
court is exists to deal and adjudicate such issue,
the jurisdiction vests with that court only to deal
& adjudicate that issue and if such issue in
question has been adjudicated by another court,
it would be an error on the face of record, which
may be considered as failure of justice, in the
light of judgment of the Apex Court in case of
Ashwinin Kumar Upadhyay - the Apex Court's
judgment is the law of the land and if any
guidelines have been formulated and circulated
and being followed in the entire St., deviation
thereof would be a disobedience of the order of
the Apex Court - hence, the provision of section
462 & 465(2) Cr.P.C. would not be applicable
and the impugned order may not be liable to be
sustained in the eyes of law - consequently,
instant Leave to Appeal, allowed and the matter
remanded back to the designated court to
3 All. State of U.P. Vs. Arif Anwar Hashmi & Ors.
463
adjudicate the issue on its merits, promptly -
directions issued accordingly.
 (Para - 6, 7, 8, 11)

Appeal Allowed. (E-11)

List of Cases cited: -

Ashwani Kumar Upadhyay Vs U.O.I. & ors. ( WP
No. 699/2016 - interim order dated 04.12.20218
& finally Decided on 09.11.2023)

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES
Registrar has assumed jurisdiction and
steps under sub-section (2) to convene a
meeting."

19. In the light of the
aforesaid, the answer to question no.1 is,
that the Committee of Management even
after the expiry of its term can convene a
meeting for the purpose of holding an
election unless it is specifically barred
under the Rules of its society. Such right
continues till such time the Registrar
passes an order under Section 25(2) of the
Act after which no further meeting could be
convened thereafter by the Committee of
Management in view of sub-Section (3) of
Section 25 of the Act. ?

7. A perusal of the aforesaid judgments
passed by this Court makes it evident that
the committee of management even after
expiry of its term can convene a meeting
for the purpose of holding election unless it
is specifically barred under the rules of the
society. This right continues till such time
the Registrar passes an order under section
25(2) of the Act after which no other
meeting can be convened by the committee
of management in view of sub section (3)
of Section 25 of the Act.

8. In the case in hand, admittedly, no
order was passed after expiry of the term of
the committee of management in the year
2008, hence election convened by the
outgoing committee of management on
18.1.2009
was
perfectly
legal.
The
committee of management for this reason
does not become time barred also as no
order under section 25(2) of the Act was
passed by the Registrar. Hence, for this
reason,
the
impugned
order
is
unsustainable.

9. The writ petition is accordingly
allowed and the impugned order dated
23.9.2013 (supra) is set aside.
----------
(2023) 3 ILRA 462
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 378 No. 17 of 2023

State of U.P. ...Applicant
Versus
Arif Anwar Hashmi & Ors.
 ...Opposite Party

Counsel for the Applicant:
G.A., Sulkhan Singh, Sushil Kumar Singh

Counsel for the Opposite Party:
Manoj Kumar Misra, Anand Mani Tripathi,
Roshan Babu Gupta

(A) - Criminal Law - Criminal Procedure
Code, 1973 - Sections 378, 462 & 465 -
U.P. Gangsters and Anti Social Activities
(Prevention) Act, 1986 - Sections 3(1) &
18 - Application for Leave to Appeal - impugned
order passed beyond jurisdiction of the court -
appeal opposed by the respondents on the
ground of Section 462 & 465 of Cr.P.C. - court
finds that, if there is any specific designated
court is exists to deal and adjudicate such issue,
the jurisdiction vests with that court only to deal
& adjudicate that issue and if such issue in
question has been adjudicated by another court,
it would be an error on the face of record, which
may be considered as failure of justice, in the
light of judgment of the Apex Court in case of
Ashwinin Kumar Upadhyay - the Apex Court's
judgment is the law of the land and if any
guidelines have been formulated and circulated
and being followed in the entire St., deviation
thereof would be a disobedience of the order of
the Apex Court - hence, the provision of section
462 & 465(2) Cr.P.C. would not be applicable
and the impugned order may not be liable to be
sustained in the eyes of law - consequently,
instant Leave to Appeal, allowed and the matter
remanded back to the designated court to
3 All. State of U.P. Vs. Arif Anwar Hashmi & Ors.
463
adjudicate the issue on its merits, promptly -
directions issued accordingly.
 (Para - 6, 7, 8, 11)

Appeal Allowed. (E-11)

List of Cases cited: -

Ashwani Kumar Upadhyay Vs U.O.I. & ors. ( WP
No. 699/2016 - interim order dated 04.12.20218
& finally Decided on 09.11.2023)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Vimal Srivastava,
learned Government Advocate, assisted by
Sri Alok Saran, Sri Rajesh Kumar Singh,
learned AGA, Sri Manoj Kumar Misra,
learned counsel for respondents no.1 & 3,
Sri A.M. Tripathi, learned counsel for
respondents no.2 & 6 and Sri Roshan Babu
Gupta as well as Ms. Purnima Mishra,
learned counsel for respondents no.4 & 5.

2.

Learned
AGA
has
filed
supplementary affidavit, the same is taken
on record. Sri Manoj Kumar Misra has
filed objection against the appeal and
objection
against
the
interim
relief
application, both the objections are also
taken on record.

3. This appeal has been filed under
Section 18 of the Uttar Pradesh Gansters
and Anti-Social Activities (Prevention)
Act, 1986 (hereinafter referred to as "the
Gangsters Act") against the order dated
23.12.2022 passed by the Special Judge
(Gangster Act)/ Special Judge (POCSO
Act),
Balrampur
in
Criminal
Misc.
Reference Case No.984 of 2022, State Vs.
Arif Anwar Hashmi and Others, arising out
of Case Crime No.156 of 2020, under
Section 3 (1) of U.P. Gansters and AntiSocial Activities (Prevention) Act, 1986,
Police
Station-
Sadullanagar,
District-
Balrampur.

4. The first and foremost submission
of the learned Government Advocate Sri
Vimal Srivastava is that the issue in
question relating to the party, who has been
MLA of Utraula and being pensioned from
the State Government, which is admissible
for the Ex-MLA. The aforesaid fact has
been considered vide para-35 of the
aforesaid impugned order. It has been
further submitted that the impugned order
dated 23.12.2022 has been passed by the
Special Judge (Gangster Act)/ Special
Judge (POCSO Act), Balrampur. As per
learned
Government
Advocate,
the
aforesaid court may not adjudicate any
issue or may not pass such order in the light
of the dicutm of the Apex Court in re;
Ashwini Kumar Upadhyay Vs. Union of
India & Anr., Writ Petition (Civil)
No.699 of 2016. Relevant paragraphs 5 & 9
of the aforesaid judgment are being
reproduced herein below:-

"5. On 4.12.2018 this Court
issued the following directions :-

"1. Instead of designating one
Sessions Court and one Magisterial Court
in each District we request each High
Court to assign/allocate criminal cases
involving former and sitting legislators to
as many Sessions Courts and Magisterial
Courts as the each High Court may
consider proper, fit and expedient. This,
according to us, would be a more effective
step instead of concentrating all the cases
involving former and sitting legislators in a
Special Court(s) in the district.

2. The procedural steps indicated
by the learned Amicus Curiae, narrated
above, will be followed by each of the
designated Court allocated in terms of the
directions above except that to whom work
464 INDIAN LAW REPORTS ALLAHABAD SERIES
would
be
offences
punishable
with
imprisonment for life/death against sitting
M.Ps./M.L.As. M.Ps./M.L.As. would be
taken as well as former up on first priority
followed by sequential order indicated
above without creating any distinction
between cases involving sitting legislators
and former legislators.

3. At this stage, we are of the
view that the above directions should be
made applicable to cases involving former
and sitting legislators in the States of Bihar
and Kerala.

The National Capital Territory of
Delhi where the position is somewhat
different and the difficulties of distance and
territories do not come in the way the trial
of cases by the Special Courts (both
Sessions Court and Magisterial Court) will
continue.

4. So far us the cases involving
States of Kerala and Bihar are concerned,
such of the case records which have been
transmitted to the Special Courts in the two
states will be re-transmitted to the
jurisdictional courts wherefrom the records
have been sent for being dealt with in the
manner indicated above. This will be done
forthwith.

5. The registry of the High
Courts of Kerala (State of Kerala) and
Patna (State of Bihar) will initiate
necessary action in this matter without
any delay.

6. Rest of the Special Courts
already set up shall continue to work and
try cases assigned to it until further
orders are passed in this regard by this
Court.

7. The designated Courts in the
districts in the aforesaid two States of
Kerala and Bihar will submit monthly
report to the High Court with regard to
the cases where charge-sheets have not
yet been filed; cases where charges have
not yet been framed giving reasons
therefor; and the progress of the trial
where the cases are ready. The High
Courts, in turn, will forward the said
reports to the registry of this Court with a
copy to Shri Vijay Hansaria, learned
Amicus Curiae who is requested to go
through the said reports and assist the
Court
by
placing
the
information
conveyed
before
this
Court
in
an
appropriate
manner
on
the
next
date/dates of hearing."

9. The above directions do not
mandate the High Courts to transfer
cases which are triable by Magistrates to
Sessions Courts. The directions contained
in the Order dated 4 December 2018 do
not supplant the jurisdictional provisions
contained either in the Code of Criminal
Procedure, 1973 or in other special
enactments governing the trial of offences
governed by those enactments. The
directions of this Court mandate the
assigning and allocation of criminal
cases
involving
former
and
sitting
legislators to Sessions Courts or, as the
case may be, Magisterial Courts. This
has to be in accordance with the
governing provisions of the law as
applicable. Consequently, where a case is
triable by a Magistrate under the Penal
Code, the case would have to be
assigned/allocated to a Court of a
Magistrate vested with jurisdiction and
the Order of this Court dated 4 December
2018 cannot be construed as a direction
requiring the trial of the case by a
Sessions Court. In the State of Uttar
Pradesh, no Magisterial Courts have
been designated as Special Courts for the
trial of cases triable by Magistrates in
terms of the directions of this Court dated
4 December 2018. The Notification
issued by the High Court of Judicature at
Allahabad on 16 August 2019 is based on
3 All. State of U.P. Vs. Arif Anwar Hashmi & Ors.
465
an
evident
misconstruction
of
the
directions contained in the Order of this
Court."

5. Learned Government Advocate,
who is counsel for the appellant, has stated
that in the light of the aforesaid dictum of
the Apex Court, the impugned order is
without jurisdiction, therefore, the same is
liable to be set aside/ quashed. Learned
counsel for the appellant has also raised
some objections challenging the impugned
order to the effect that the relevant
provisions of the Gangsters Act have not
been followed but I am not considering
those objections at this stage since the order
impugned has been passed by the court,
which was not having jurisdiction to pass
such order, therefore, such order is liable to
be set aside/ quashed.

6. However, learned counsel for the
respondents, more particularly Sri Manoj
Kumar Misra, has drawn attention of this
Court towards Sections 462 & 465
Cr.P.C. by submitting that only for the
reason that the impugned proceedings
have been concluded by the wrong court,
the impugned order may not be set aside
for that reason alone. He has also
submitted that if the proceedings were
running before the wrong court, the
Public Prosecutor should have taken
specific
objection
before
the
court
concerned but no such objection has been
raised by the Public Prosecutor till
passing of the impugned order. He has,
therefore, submitted that lapse on the part
of the Public Prosecutor/ State, the
respondents should not suffer. Sri Manoj
Kumar Misra has also raised objection
that in this appeal, this ground has not
been taken specifically that the order
impugned has been passed by the court,
which was not having jurisdiction to pass
such order, therefore, the present appeal
may be dismissed.

7. Be that as it may, after the
judgment of the Apex Court in re;
Ashwini Kumar Upadhyay (supra), the
courts have been designated to deal with
the issue relating to the MPs/MLAs and if
the matter pertains to the issue relating to
any MP/MLA, the designated court
would have jurisdiction to adjudicate
such issue strictly in accordance with
law. Notably, it has not been disputed by
the parties that the impugned order has
been passed by the court, which was not
having such jurisdiction, therefore, even
if this ground has not been raised in this
appeal, after noticing the aforesaid fact
which discloses that this is an error
apparent on the face of record, the order
impugned may not be liable to be
sustained in the eyes of law.

8. So far as Section 462 Cr.P.C. is
concerned, it has been made clear in the
aforesaid section that the proceedings, if
concluded by the wrong court, may not be
set aside only for the reason that it has been
concluded by the wrong court unless it
appears that such error has, in fact,
occasioned failure of justice. In the
judgment of the Apex Court in re; Ashwini
Kumar Upadhyay (supra), the purpose has
been interpreted as to why for dealing cases
relating to MP/MLA should be adjudicated
by the designated court only. Therefore, if
there is any specific designated court to
deal and adjudicate such issue, the
jurisdiction vests with that court only to
deal and adjudicate that issue and if the
issue in question has been adjudicated by
another court, to me, it would be an error,
which may be considered as failure of
justice. Besides, the judgment being passed
by the Apex Court is the law of the land
466 INDIAN LAW REPORTS ALLAHABAD SERIES
and if in compliance of the order of the
Apex Court, any guidelines have been
formulated and circulated
and being
followed in the entire State, deviation
thereof would be a disobedience of the
order of the Apex Court and would
frustrate the purpose of formulating the
guidelines issued by the High Court at
Allahabad to deal with and to adjudicate
the issue relating to the MPs/MLAs.
Therefore, the provisions of Section 465 (2)
Cr.P.C. would not be applicable, which
provides that if specific objection has not
been taken by the either side at the
appropriate stage and order is passed by the
court not having jurisdiction may not be set
aside. In the present cases, the District/
Sessions Judge was duty bound to transfer
the case to the designated court dealing
with the issues relating to the MP/MLA.
Likewise, if the court where the matter has
been transferred by the District/ Sessions
Judge concerned is having no locus or
jurisdiction to deal with or to adjudicate the
issue relating to the MP/MLA should have
not proceeded further. Notably, the Court
concerned has considered the fact in para
35 of the impugned order that one of the
parties has been MLA and getting pension
admissible for the MLA. In the present
case, the order impugned has been passed
by the court, which is not having
jurisdiction to pass such order, therefore,
the aforesaid order may not sustain in the
eyes of law. At the same time, it is also
observed that there is no fault on the part of
the respondents inasmuch as they have
participated in the proceedings and they did
not try to linger on the issue.

9. Considering the submissions of
learned counsel for the parties and perusing
the material available on record, I find that
there is an error apparent on the face of the
order dated 23.12.2022 as the same has
been passed by the court, which was not
having jurisdiction to pass such order in the
light of the dictum of the Apex Court in re;
Ashwini Kumar Upadhyay (supra) and
the subsequent guidelines so issued by the
High Court at Allahabad.

10. Therefore, the instant application
for leave to appeal is allowed.

11. The impugned order dated
23.12.2022 passed by the Special Judge
(Gangster Act)/ Special Judge (POCSO
Act),
Balrampur
in
Criminal
Misc.
Reference Case No.984 of 2022 is hereby
set aside/ quashed only on the ground of
jurisdictional error as I have not entered
into the merit of the issue. The matter is
remanded back to the designated court
concerned at Balrampur to adjudicate the
issue on merits promptly, strictly in
accordance
with
law,
by
affording
opportunity of hearing to the parties
concerned, with expedition, preferably,
within a period of three months from the
date of production of certified copy of this
order.

12. Accordingly, the appeal is also
allowed.
----------
(2023) 3 ILRA 466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 1974 of 2023

Purushottam Chaudhary ...Applicant
Versus
C.B.I., Lucknow ...Opposite Party

Counsel for the Applicant: