In a very significant development, we saw how the Lucknow Bench of the Allahabad High Court in a most learned, laudable, landmark and latest judgment titled Waseem Khan vs State of U.P. Thru. Prin. Secy. Nyay Lko. And Another in Criminal Appeal No.- 203 of 2023 and Neutral Citation No. 2023:AHC-LKO:33213 and cited also in 2023 LiveLaw (AB) 151 that was reserved on 13 April and then finally delivered on 10 May, 2023 while ordering the release of the attached properties of one Wasim Khan under the UP Gangster Act observed clearly that the court is not empowered to act as a post office or mouthpiece of the State or the District Magistrate. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Shamim Ahmed observed thus while quashing the orders of the seizure (of the properties of the alleged gangster Wasim Khan) sanctioned by the District Magistrate, Lucknow and upheld by the Special Judge, Gangster Act, Lucknow. Hence, the District Magistrate, Lucknow was very rightly directed to release all the properties of the appellant attached vide order dated 13.04.2022 in favour of the appellant forthwith.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Shamim Ahmed sets the ball in motion by first and foremost putting forth in para 1 that, “Pleadings in the case have been exchanged between the parties.”
To put things in perspective, the Bench then envisages in para 3 that, “The present appeal under Section 18 of U.P. Gangster and Anti Social (Prevention of Activities) Act, 1986 (hereinafter referred to as the ‘Gangster Act’) has been preferred by the appellant, namely, Waseem Khan with a prayer to quash the judgment and order dated 13.4.2022 passed by the District Magistrate, Lucknow/opposite party no.2 in Case No. 2850 of 2021 Computerized Case No. D202110460002850 (State Vs. Waseem Khan) under section 14(1) of the Gangster Act , whereby the District Magistrate, Lucknow attached the following property of the appellant including a new house situated in village Tirgawan, Tehsil Malihabad, District Lucknow with the finding that the appellant has purchased the house in question and land (immovable property) between 2012 to 2021 from the income earned by involving in anti social activities and the appellant has purchased the following properties without taking loan whereas the appellant has purchased the Scorpio and Pulsar Motor Cycle by taking loan.” I have not mentioned the details of the 6 properties as I deem it not necessary.
Needless to say, the Bench then states in para 4 that, “The appellant has also prayed for quashing of the impugned judgment and order dated 5.1.2023 passed by the Additional District and Sessions Judge, Court No. 08/Special Judge, Gangster Act, Lucknow in Criminal Appeal No. 84 of 2022, Waseem Khan Vs. State of Uttar Pradesh and another, whereby the appellate court dismissed the appeal and decided the Criminal Misc. Case No. 735 of 2022 finally and confirmed the impugned order dated 13.04.2022 passed by the District Magistrate, Lucknow.”
Briefly stated, the Bench then specifies in para 5 that, “In short, the facts of the case are that initially, more than ten years ago, a First Information Report dated 15.08.2012 was lodged by one Shri Suleman Beg son of Sikandar Beg, resident of village Daulatpur Malihabad, District Lucknow, which was registered as case crime no. 342 of 2012 under sections 147,307,325,504,506 IPC against six persons including the appellant alleging therein that a construction work was being done by the appellant on government land and being Village Pradhan, Suleman Beg restrained the appellant from constructing him the same. Thereafter First Information Reports were lodged against the appellant bearing case crime no. 535 of 2017 under sections 147,148,452,504,506 IPC and case crime no. 81 of 2019, under sections 406,323,506 IPC and case crime no. 551 of 2019 under sections 420,468,471,506,120-B IPC and case crime no. 24 of 2019 under sections 419,420,467,468,471 IPC and case crime no. 173 of 2021 under section 2/3 U.P. Gangster Act.”
Truth be told, the Bench then mentions in para 7 that, “Elaborating the submissions, learned counsel for the appellant has submitted that the attached property, the reference of which is given above, was in fact ancestral property of the appellant.”
To recapitulate, the Bench recalls in para 8 that, “Learned Counsel of the appellant further submitted that in furtherance of the FIR bearing Case Crime No. 173/2021 under section 2/3 U.P. Gangster Act, the District Magistrate, Lucknow-opposite party no.2 proceeded to exercise its power under Section 14(1) of the Gangster Act and passed an order for attaching the properties of the appellant on 13.4.2022.”
As it turned out, the Bench then reveals in para 9 that, “Being aggrieved by the aforesaid attachment order dated 13.04.2022 passed by District Magistrate, Lucknow-opposite party no.2, representation dated 14.9.2021 was preferred by the appellant before opposite party no.2 under Section 15 (1) of the Gangster Act seeking release of the appellant’s properties from attachment. However, the aforesaid representation was dismissed in a cursory manner by the District Magistrate, Lucknow/opposite party no.2 vide order dated 13.04.2022. While passing the impugned order dated 13.4.2022 the District Magistrate, Lucknow/opposite party no.2 referred the case to the learned Gangsters Court under Section 16 (1) of the Gangster Act in respect of properties which were not released by him; and, the learned Gangsters Court, thereafter, proceeded to pass the impugned order dated 05.01.2023 in exercise of its powers under Section 17 of the Gangster Act.”
Most significantly, what forms the nucleus of this learned judgment is then encapsulated in para 19 wherein it is mandated that, “It is now well settled that 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 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, in that case the person aggrieved has 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.
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 property 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.
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 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 of commission of an offence, triable under this Act but the District Magistrate in its order has not recorded his satisfaction having reason to believe with regard to the property attached that it was acquired by appellant as a result of commission of an offence triable under Gangster Act, even though while deciding the reference under Section 16 of the Act, the court below does not appreciate the evidence and in a mechanical manner passed the impugned order relying upon the observations made by the District Magistrate which is illegal and an unjustified approach.”
Equally significant is what is then held in para 23 that, “Keeping in view the aforesaid settled proposition of law and the judgments 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), and Rajbir Singh Tyagi Vs State of U.P. and Others 2018 SCC Online AII 5986, this Court is of the view that the properties, which were attached, were acquired by the appellant with the aid of his earning from legal resources and not by commission of any offence triable under the Act as it is settled law that the properties 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 and also the impugned orders were not passed on reasons which are relevant and material. In the present case from the perusal of the impugned order dated 13.4.2022 and record it appears that only on the basis of the police report, the District Magistrate has attached the property in question, no material was supplied to the District Magistrate to have reasons to believe that the property in question was acquired by the gangster the present appellant as a result of commission of any offence triable under this Act. It vitiates the subjective satisfaction of the District Magistrate also from the record. It appears that the District Magistrate has no material in support of the police report that the property in question was acquired by the present appellant being gangster even though the proceedings were not followed as per the provisions of the Act. It appears that the appellant was having enough source of income from his business at Mumbai as well as at his native place, from which the appellant had acquired the properties and even the properties were acquired by the appellant much prior to the registration of criminal cases and imposition of Gangster Act, which was invoked in the year 2021 and the impugned order of attachment was passed in mechanical manner without application of mind and is arbitrary. Thus the impugned order dated 13.04.2022 passed by the District Magistrate, Lucknow and the impugned order dated 5.1.2023 passed by the Additional Session Judge, Court No.8/Special Judge, Gangsters Act, Lucknow are illegal and the same are liable to be quashed.”
As a corollary, the Bench then enunciates in para 24 that, “In view of above facts and circumstances of the case, the impugned orders passed by the courts below cannot be said to be passed in correct perspectives as they are not sustainable in the eye of law and require interference by this Court, the prosecution has failed to establish that the provisions of Sections 2 and 3 of the Gangster Act are attracted in the case of appellant, and further the appellant’s property is also not attached in accordance with law, as the prosecution has failed to establish that the property in question acquired and owned by the appellant has been earned from the income indulging in anti social activities. The enquiry under Section 16 was not done in accordance with the Act, the provisions of Sections 14, 15 & 17 were also not followed in accordance with the Act, thus the entire proceeding initiated in pursuance thereof is vitiated.”
Finally, the Bench then concludes by holding in para 25 that, “Accordingly, the present appeal is allowed. The impugned order dated 13.04.2022 passed by the District Magistrate, Lucknow in Case No. 2850 of 2021 Computerized Case No. D202110460002850 (State Vs. Waseem Khan) under section 14(1) of Gangster Act and the impugned order dated 5.1.2023 passed by the Additional District and Sessions Judge/Special Judge, Court No. 8/Special Judge, Gangster Act, Lucknow in Criminal Appeal No. 84 of 2022 (Waseem Khan Vs. State of Uttar Pradesh and another) and Criminal Misc. Case No. 735 of 2022 ( State of U.P. Vs. Waseem Khan) are hereby quashed. The District Magistrate, Lucknow/opposite party no.2 is directed to release all the properties of the appellant attached vide order dated 13.04.2022 in favour of appellant, forthwith. No order as to costs.”
In a nutshell, we thus see that the Lucknow Bench of the Allahabad High Court has made it abundantly clear that the Court is not a post office or mouthpiece of State/District Magistrate. It is also made amply clear by the Court that such order as made in the present case attaching properties under the UP Gangster Act is liable to be quashed and is done accordingly! Very rightly so!
Sanjeev Sirohi