Anil Kumar Jaiswal vs State of U.P. and Others

Amar Saran and S.C. Agarwal, JJ.—Heard Learned Counsel for the petitioner and learned Additional Government Advocate.

This writ petition has been filed for quashing of orders dated 30.12.2010 and 15.4.2011, passed by the District Magistrate. Kushinagar whereby show cause notice was issued to the petitioner and thereafter his property was attached and the matter was referred to the competent Court having jurisdiction to try the offence under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "the Act").

Learned Counsel for the petitioner contended that the said proceedings were initiated in a mala fide manner in view of a dispute with one Subhash Chandra Upadhyay because the latter had been allotted a petrol pump. The petitioner had only taken the property on lease from respondent No. 4 Smt. Sirjawati Devi, who was the wife of respondent No. 5 Shiv Kumar. He further submitted that the petitioner Anil Kumar Jaiswal and Smt. Sirjawati Devi, wife of the alleged gangster Shiv Kumar had made representations on 21.1.2011 before the District Magistrate, Kushinagar. wherein they had claimed that the property was acquired with the aid of one Prayag, the father-in-law of Smt. Sirjawati. who was a good carpenter and used to do the work of furniture and possessed a shop. He also had income from agricultural land as he possessed 2 acres of good agricultural land. The District Magistrate rejected this contention as the petitioner and Smt. Sirjawati Devi were unable to substantiate the income from other sources by any documentary or other evidence.

Admittedly. Shiv Kumar was facing prosecution in Case Crime No. 612 of 2007. under Sections 41/411, 403, 413. 414, 419, 420, 467, 468 and 471, I.P.C. and 311) of the Gangsters Act, P.S. Patherwa and Case Crime No. 362 of 2007, under Sections 41/411, 419, 420, 413 and 414. I.P.C. P.S. Patherwa, district Kushinagar and the District Magistrate, Kushinagar was prima facie satisfied that the property had been acquired as a result of commission of the offence triable under the Act. He, therefore, attached the property and referred the matter to the competent court u/s 16(1) of the Act.

Learned Counsel for the petitioner has placed reliance on a Division Bench decision of this Court in Smt. Kahkashan Parveen v. State of U.P. 1999 (39) ACC 719 : 1999 (2) ACR 1762. However, in the said Division Bench decision, it was observed that no satisfaction was properly recorded by the District Magistrate that the property had been acquired as a result of the anti-social activities of the petitioner. Furthermore, the District Magistrate had passed orders of confiscation and not merely of attachment and it was observed by the Division Bench that he has thus, overstepped his jurisdiction.

Reliance has also been placed by the Learned Counsel for the petitioner in the case of State of Bihar v. Kalika Kuer alias Kalika Singh and Others AIR 2003 SCW 2458, for the proposition that a subsequent Division Bench is bound to follow the earlier Division Bench and not to simple declare the earlier decision as per incuriam, but the Court should refer the matter to a larger Bench.

As we find that the facts of this case are completely different, there is no need to refer the matter to a larger Bench. Moreover, in an earlier Division Bench decision in Manzoora and Others v. State of U.P. and Others 2009 (1) ALJ 556 : 2009 (1) ACR 73, it has been observed as follows :

The order of attachment by the D.M. is also not final, as he is required to refer the matter u/s 16(1) to the Court entitled to try the offence under the Gangsters Act, which after conducting an inquiry as provided u/s 6(3). passes appropriate orders u/s 17 of the Gangsters Act. This order is also subject to an appeal to the High Court u/s 18. Thus, this writ petition must also fail on account of the availability of effective alternative remedies to the petitioners and because a complete code for dealing with such matters has been provided under the Gangsters Act.

Such a view has also been taken by the Division Bench in the case of Krishna Murari Agarwat v. District Magistrate, Jhansi and Others 2001 (1) JIC 236 (All) : 2000 (3) ACR 2739, which is to the effect that the Special Judge, Gangsters Act is the appropriate authority to examine such questions of fact and that the Act and that a writ petition is not the appropriate forum for questioning such orders.

Paragraph 4 of the aforesaid judgment may be usefully extracted as under :

The question whether the property attached has been acquired by a gangster as a result of the commission of an offence under U.P. Gangsters and Antisocial (Activities) Prevention Act, 1986 is a pure question of fact. The claim of the petitioner that the property has not been acquired by commission of an offence or that it is an ancestral property can only be established by appraisal of the evidence. It will be open to the petitioner to lead oral and documentary evidence in support of his claim before the Special Judge (Gangsters Act), where the matter has been referred. Such appraisal of evidence is not possible in the present proceedings under Article 226 of the Constitution of India. The act provides a complete machinery as against the decision of the Court an appeal lies u/s 18 of the Act.

Reference was also made in Manzoora''s case (supra) to the decision of Supreme Court in Ganga Saran and Sons P. Ltd. Vs. Income Tax Officer and Others, for the proposition that the Court cannot investigate into the adequacy or sufficiency of the reasons which weighed with the authority for having reason to believe something, but the Court could only examine whether the reasons were relevant and have a bearing on the matter in regard to which it was required to entertain this belief. It could not be said that in the present case, the District Magistrate could have no reason to believe that the said properties had been acquired as a result of the commission of the offences triable under the Gangsters Act.

For all these reasons, as the matter has now been referred to the Special Judge, it is for the Special Judge to consider the matter on merits whether the property is to be confiscated or released.

In view of what has been indicated hereinabove, the writ petition is dismissed.

It is made clear that the Special Judge should not be prejudiced by the observations made hereinabove, which were only for the purpose of disposal of the writ petition and he should decide the matter on merit.