# State of U.P v. Hafijullah

- **Citation:** (2023) 1 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Application U/S 378 No. 109 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-hafijullah-49191
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 378, - U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986 - Sections 14, 14(1), 15, 15(2), 16,
16(1), 17 & 18 - Application for Leave to
Appeal - against impugned order of release -
Police report - District Magistrate initiated
proceedings of attachment of property -
representation against attachment - rejected -
reference - court below finds that, the property
being made subject matter of an attachment
was not acquired by a gangster as a result of
commission of an offence triable under the Act,
- object behind providing the power of judicial
scrutiny is to check arbitrary exercise of power
and to restore the rule of law - Court finds that,
District Magistrate has fails to recorded his
satisfaction having reason to believe with regard
to the property attached was acquired by the
respondent as a result of commission of an
offence triable under the Act, - hence, the
judgment of court below cannot to be said to be
illegal and not based on material on record -
consequently, Leave to Appeal, rejected.(Para -
8, 10, 11, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES
illegalities and ambiguities are apparent
and therefore, the order dated 19-12-2022
prima-facie, seems to unsustainable and
thus the order dated 19-12-2022 is hereby
set aside.

23. Resultantly, the matter is remitted
back to the trial court for deciding the
discharge application of the applicant dated
19-12-2022 afresh. For the purpose of
hearing on the application for discharge
dated 19-12-2022,the concerned parties are
directed to appear before the trial court on
27-12-2022. Counsel for the applicant shall
also remain present before the trial court on
the said date and after hearing the parties,
the trial court shall proceed in the matter.
The parties or their counsels shall not seek
any adjournment on the said date.

24. With the aforesaid observations,
the instant application is hereby allowed.

25. It is made clear that observations
made herein above, will have no bearing on
the
merits
of
the
case
pending
consideration before the trial court.
----------
(2023) 1 ILRA 806
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 378 No. 109 of 2022

State of U.P. ...Applicant
Versus
Hafijullah ...Opposite Party

Counsel for the Applicant:
G.A.

Counsel for the Opposite Party:
Criminal Law - Criminal Procedure Code,
1973 - Section - 378, - U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986 - Sections 14, 14(1), 15, 15(2), 16,
16(1), 17 & 18 - Application for Leave to
Appeal - against impugned order of release -
Police report - District Magistrate initiated
proceedings of attachment of property -
representation against attachment - rejected -
reference - court below finds that, the property
being made subject matter of an attachment
was not acquired by a gangster as a result of
commission of an offence triable under the Act,
- object behind providing the power of judicial
scrutiny is to check arbitrary exercise of power
and to restore the rule of law - Court finds that,
District Magistrate has fails to recorded his
satisfaction having reason to believe with regard
to the property attached was acquired by the
respondent as a result of commission of an
offence triable under the Act, - hence, the
judgment of court below cannot to be said to be
illegal and not based on material on record -
consequently, Leave to Appeal, rejected.(Para -
8, 10, 11, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Smt. Mian Devi Vs St. of U.P.(2013 (83) ACC
902,

2. Smt. Shanti Devi w/o Sri Ram Vs St. of U.P.
(2007 (2) ALJ 483 (All).

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in revised call.
None is present for the respondent.

2. Heard Sri Prem Prakash, learned
AGA-I for the State-appellant and perused
the record.

3. The present application for leave to
appeal under Section 18 of the U.P.
Gangsters and Anti Social Activities
(Prevention) Act, 1986 read with Section
378 Cr.P.C. has been preferred by the State-
1 All. State of U.P. Vs. Hafijullah
807
appellant against the judgment and order
dated 10.3.2022 passed by Special Judge,
Gangsters Act, Bahraich, in Criminal Misc.
Case No. 484 of 2020, State Vs. Hafijulla
arising out of case crime no. 153 of 2020,
under section 16(1) U.P. Gangsters Act,
1986 (hereinafter referred to as the 'Act'),
Police Station Fakharpur, District Bahraich
on the reference made by the District
Magistrate vide order dated 24.11.2020.
The learned Special Judge vide its order
dated 10.3.2022 set aside the orders dated
8.9.2020 and 24.11.2020 passed by the
District Magistrate, Bahraich and released
the house in favour of the respondentHafijulla.

4. In short the facts of the case are
that on the report of Superintendent of
Police, Bahraich, dated 4.9.2020 the
District
Magistrate,
Bahraich
initiated
proceedings under Section 14(1) of the Act
and the house of the respondent was
attached as it was found that the attached
property was acquired by committing
criminal offences. The respondent filed an
objection against the order of attachment
and took a stand that the order dated
24.11.2020 was passed by the District
Magistrate without dealing and considering
the documents and pleas taken by the
respondent.

5. The Court below after taking into
consideration, the facts and circumstances
of the case and the decision rendered by
this Court in the case of Smt. Maina Devi
versus State of U.P. 2013(83) ACC 902
and Smt. Shanti Devi wife of Sri Ram
versus State of U.P. 2007(2) ALJ 483
(All) came to the conclusion that the
attached house is the only property of the
respondent and the prosecution has failed
to prove its case that the house in question,
which was attached, was acquired by the
respondent after accumulating money after
committing offence. It is settled law that
the property being made subject matter of
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.

6. Learned A.G.A.-1 has vehemently
argued that the learned court below has fell
into error in not appreciating the material on
record. The District Magistrate, Bahraich has
passed the order dated 24.11.2020 after being
fully satisfied that the respondent has
acquired the property by illegal means and
has followed the due procedure as prescribed
under the Gangsters Act.

7. It seems to be just and expedient to
refer to the relevant provisions of the
Gangster Act which are as under:

14. Attachment of property.- (1) If
the District Magistrate has reason to believe
that any property, whether movable 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.
808 INDIAN LAW REPORTS ALLAHABAD SERIES

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 6 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 subsection (1) of Section 15 or the District
Magistrate does not release the property
under sub-section (2) of Section 15 he shall
refer the matter with his report to the Court
having jurisdiction to try an offence under
this Act.

(2) Where the District Magistrate
has refused to attach any property under
sub-section (1) of Section 14 or has ordered
for release of any property under subsection (2) of Section 15, the State
Government or any person aggrieved by
such refusal or release may make an
application to the Court referred to in subsection (1) for inquiry as to whether the
property was acquired by or as a result of
the commission of an offence triable under
this Act. Such court may, if it considers
necessary or expedient in the interest of
justice so to do, order attachment of such
property.

(3) (a) On receipt of the reference
under sub-section (1) or an application
under sub-section (2), the Court shall fix a
date for inquiry and give notices thereof to
the person making the application under
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 on 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. V 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 witnesses 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
1 All. State of U.P. Vs. Hafijullah
809
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.

8. It is now well settled that property
being made subject matter of an attachment
under sections 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
its
satisfaction
on
this
point.
The
satisfaction of the District Magistrate is not
open to 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 inquiry held by him under
section 16 of the Act. If the Court comes 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.

9. The object behind providing the
power of judicial scrutiny under section 16
of the Code is to check arbitrary exercise of
power by the District Magistrate in
depriving a person of his properties and to
restore the rule of law, therefore a heavy
duty lies upon the Court to hold a formal
enquiry to find out the truth with regard to
the question, whether the property was
acquired by or as a result of the
commission of an offence triable under the
Act. The order to be passed under section
17 of the Act must disclose reasons and the
evidence in support of finding of the Court.
The Court is not empowered to act as a post
office or mouthpiece 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 Gangster chart can be attached by
District Magistrate under Section 14 of the
Act.

10. The provisions of section 14 of
the Act, referred to above, empowers the
District Magistrate to attach the property
acquired by the Gangster as a result of the
commission of an offence triable under this
Act. The District Magistrate may appoint
an Administrator of any property attached,
to administer such property in the best
interest thereof but there must be reason to
believe that any property whether moveable
or immovable in possession of any person,
has been acquired by a Gangster as a result
810 INDIAN LAW REPORTS ALLAHABAD SERIES
of commission of an offence, triable under
this Act but in the impugned order the
District Magistrate, has not recorded his
satisfaction having reason to believe with
regard to the property attached that it was
acquired by respondent as a result of
commission of an offence triable under
Gangster Act.

11. Keeping in view the aforesaid
settled proposition of law, I am of the view
that the view taken by the court below was
a probable and logical view, which is based
on valid reasons and the law propounded in
this regard. The judgment of the court
below cannot be said to be illegal, illogical
and improbable and not based on material
on record or is based on erroneous views
and is against the settled position of law.
So, this Court is satisfied that there is
absolutely no hope of success in this appeal
and accordingly, no interference is called
for.

12. Leave to appeal is refused.

13. Application for leave to appeal is
rejected.

14. Accordingly, the appeal does not
survive, and in view of above, the appeal is
dismissed.

15. No order as to costs.

16. Copy of this judgment be sent to
the court below for its compliance.
----------
(2023) 1 ILRA 810
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 530 of 2004

Mohd. Aslam ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mr. R.B.S. Rathaur (Amicus Curiae)

Counsel for the Respondent:
Addl. Government Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Case is based on circumstantial
evidence, as there is not eye-witness of
the crime- The FIR of the crime was
lodged in pursuance of an order passed on
an
application
moved
under
Section
156(3) of Cr.P.C. by the brother of
deceased Khairunnisa-In order to prove
the
crime
based
on
circumstantial
evidence
all
the
circumstances
must
indicate that the author of the crime is the
accused and the accused alone and there
is no possibility of being committed the
crime by anybody else. The chain of the
circumstances should be complete and no
shadow of reasonable doubt must be
there- The prosecution has failed to prove
the circumstances leading towards the
conclusion
that
the
appellant/convict
killed all the four deceased persons by
administering poison in meat.

Settled
law
that
in
a
case
based
on
circumstantial evidence the prosecution has to
link all the circumstances in one chain that leads
to the unerringly to the guilt of the accused.
(Para 7,8,11,12)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Sharad Birdhichand Sarda Vs St. of Maha.,
AIR 1984 (SC) 1622.