Smt Kripa Devi vs State Of U.P. And Another
2021 Latest Caselaw 8920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 84
 
Case :- APPLICATION U/S 482 No. - 15865 of 2020
 
Applicant :- Smt Kripa Devi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vishal Mohan Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Vishal Mohan Gupta, learned counsel for the applicant and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite parties.

2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 08.07.2020 passed in Case No. 07 of 2020 (State vs. Amit Sharma) under Section 14 (1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 19861 by the Police Commissioner, Gautam Buddha Nagar, with all of its consequential effects and a further prayer to stay the proceedings of Case No. 7/2020 (State vs. Amit Sharma) under Section 14 (1) of the Act, 1986 by the Police Commissioner, Gautam Buddha Nagar.

3. Learned Additional Government Advocate-I at the very outset raises an objection with regard to the maintainability of the present application on the ground that the order of which quashment is sought has been passed under sub-section (1) of Section 14 of the Act which is in the nature of an administrative order and as such no proceedings under the Code of Criminal Procedure, 19732 being pending, the jurisdiction of this Court under Section 482 Cr.P.C. cannot be invoked.

4. Counsel for the applicant has referred to the factual aspects of the case in order to press for the relief for quashing of the order dated 5.7.2020, passed by the Police Commissioner and the consequential proceedings initiated under the Act, 1986.

5. In order to appreciate the rival contentions, the statutory provisions contained under the Act, 1986, would be required to be adverted to.

6. The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Ordinance, 1986, was promulgated to make special provisions for the prevention of, and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto. The Ordinance was replaced by Uttar Pradesh Gangsters and Anti-Social Activities) Act, 1986 [U.P. Act No. 7 of 1986], passed by the State Legislature with the same objective.

7. The provisions under the Act, 1986 relating to attachment of property and consequential proceedings, which are relevant for the purpose of controversy in the present case, are being extracted below :-

"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.

(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under subsection (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.

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 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 sub-section (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 sub-section (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 sub-section (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 subsection (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 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 this 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 witness 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 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.

18. Appeal. - The provisions of Chapter XXIX of the Code shall, mutatis mutandis, apply to an appeal against any judgment on order of a Court passed under the provisions of this Act."

8. Section 14 of the Act, 1986 provides that 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.

9. In terms of sub-section (1) of Section 15, the claimant is entitled to make a representation to the District Magistrate, showing the circumstances in and the sources by which such property was acquired by him, within three months from the date of knowledge of such attachment.

10. Sub-section (2) of Section 15 provides that 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 property shall be made over to the claimant.

11. Section 16 provides for an inquiry into the character of acquisition of property by Court. As per sub-sections (1) and (2), it contemplates two situations : (i) where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2); (ii) 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 sub-section (2) of Section 15. In case of (i), the District Magistrate is to refer the matter with his report to the Court having jurisdiction to try an offence under the Act. In case of the situation under (ii), the State Government or any person aggrieved by such refusal for release, may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under the Act, and such Court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property.

12. In terms of sub-section (3) (a) of Section 16, on receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall proceed with the inquiry after due notice to the parties concerned. It is also provided that the Court shall hear the parties, receive the evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by gangster as a result of commission of an offence triable under the Act and shall pass such order under Section 17, as may be, just and necessary in the circumstances of the case. Sub-section (4) provides that 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, in respect of certain specified matters.

13. Section 17 relates to the order after inquiry and it provides that if upon an inquiry the Court finds that the property was not acquired by a gangster as a result of commission of any offence triable under the Act, it shall order for release of the property of the person from whose possession it was attached, and in any other case the Court may make such order as it thinks fit for disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise. Section 18 provides a forum of appeal against any judgement or order of a Court passed under the provisions of the Act.

14. The provisions referred to above in respect of attachment of property, would go to show that the scheme of the Act provides a complete procedure from the stage of passing of an order of attachment under Section 14 (1) to an opportunity to the claimant to make a representation, whereupon the Magistrate, upon being satisfied about the genuineness of the claim, is empowered to release the property from attachment. This is subject to a further inquiry by the Court under Section 16 and passing of an order after inquiry under Section 17 after due opportunity to all, which is subject to a statutory appeal under Section 18.

15. In order to examine as to whether the inherent powers of the High Court under Section 482 of the Code, may be invoked to seek quashing of the proceedings, at the stage of passing of an order of attachment under Section 14 (1) of the Act, 1986, the provisions contained under Section 482 are required to be adverted to. For ease of reference Section 482 of the Code is being extracted below :-

"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

16. Section 482 of the Code envisages three situations under which the inherent powers of the High Court may be exercised, namely: (i) to give effect to any order under the Code, (ii) to prevent abuse of the process of the Court, or (iii) to otherwise secure the ends of justice.

17. The inherent jurisdiction under the section though wide, is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. The powers are to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist.

18. Section 482 provides for saving of the inherent powers of the High Court and it does not confer any new power on the Court. The section only recognizes the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or prevent abuse of process of any Court or otherwise to secure the ends of justice.

19. The invocation of inherent power of the High Court, therefore, can be made in respect of proceedings pending before or disposed of by criminal courts and such powers cannot ordinarily be exercised in relation to orders passed by an authority not functioning under the Code or in respect of proceedings which are not criminal proceedings in a court.

20. Referring to Section 561-A of the Code of Criminal Procedure, 1898 (which corresponds to Section 482 of the new Code) the Privy Council in Emperor vs. Khwaja Nazir Ahmed3, held that the said section does not give to the High Court any increased powers, it only provides that those which the Court already inherently possess, shall be preserved. It was stated thus :-

"It has sometimes been thought that Section 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act."

21. It is, therefore, seen that the inherent powers of the High Court under Section 482 can be invoked only to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. The language and the phraseology used under the section make it clear that the powers are to be exercised in relation to a proceeding of a judicial character before a Court and not in respect of an order which is of an executive or administrative nature.

22. In the case at hand, the order impugned contains a recital that the State Government, in exercise of powers under Section 8 of the Code, has conferred the powers to be exercised under Section 14 of the Act, 1986, upon the Police Commissioner, Gautam Budh Nagar, for the purposes of Section 20 of the Code. It is in exercise of the powers so conferred under Section 14(1) of the Act, 1986, that the Police Commissioner has passed an order of attachment of property with a stipulation that the claimant may, within 90 days, make a representation as per the procedure under Section 15, failing which, the matter would be referred to the Special Court, Gangsters Act, Gautam Budh Nagar.

23. It may be taken note of that in terms of the mandate under the Constitution, the Code has provided for separation of the judiciary from the executive. Broadly speaking, functions which are essentially judicial in nature are the concern of the Judicial Magistrates, while functions which are 'police' or 'administrative' in nature are the concern of the Executive Magistrates.

24. It would be apposite at this stage to refer to Section 8 and Section 20 of the Code, which are as follows :-

"8. Metropolitan areas.- (1) The State Government may, by notification, declare that, as from such date as may be specified in the notification, any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area for the purposes of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under sub-section (1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million.

(4) Where, after an area has been declared, or deemed to have been declared to be, a metropolitan area, the population of such area falls below one million, such area shall, on and from such date as the State Government may, by notification, specify in this behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or appeal pending immediately before such cesser before any Court or Magistrate in such area shall continue to be dealt with under this Code, as if such cesser had not taken place.

(5) Where the State Government reduces or alters, under sub-section (3), the limits of any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal pending immediately before such reduction or alteration before any Court or Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this Code as if such reduction or alteration had not taken place.

Explanation.-In this section, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published.

20. Executive Magistrates.- (1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.

(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force.

(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.

(4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate.

(4A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.

(5) Nothing in this section shall preclude the State Government from conferring under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area."

(6) The State Government may delegate its powers under sub-section (4) to the District Magistrate. [Vide U.P. Act 1 of 1984, section 5 (w.e.f. 1-5-1984)].

25. As per Section 8 of the Code, the State Government may, by a notification, declare any area in the State comprising a city or town whose population exceeds one million to be a metropolitan area for the purposes of Code. Section 20 of the Code contains reference to Executive Magistrates and in terms of sub-section (1) thereof, the State Government may appoint as many persons as it thinks fit to be an Executive Magistrate in every district and in every metropolitan area. Further, under sub-section (5), the State Government is empowered to confer, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.

26. The aforementioned provisions under Section 20 of the Code fell for consideration in A.N.Roy, Commissioner of Police and another Vs. Suresh Sham Singh4, in the context of a challenge having been raised to an order passed by the Police Commissioner in exercise of powers under Section 18 (1) of the Immoral Traffic (Prevention) Act, 19565, and reading sub-sections (1), (2) and (5) in conjunction, it was held that the State Government has power to appoint the Commissioner of Police of a metropolitan area, as an Executive Magistrate, who shall have powers of a District Magistrate for the purposes of provisions under the said Act. The relevant observations made in the judgment are as follows :-

"22. Under sub-section (1) of Section 20 the Government has got the power to appoint as many persons as it thinks fit to be Executive Magistrates in every district and in every metropolitan area and shall appoint one of them to be the District Magistrate. The words, "as many persons" employed in sub-section (1) are adequately elastic to include the Commissioner of Police. In other words, the State Government is not precluded from appointing the Commissioner of Police in a metropolitan area as an Executive Magistrate. We have already noted that Brihan Mumbay is a metropolitan area. Once the Commissioner of Police is appointed as an Executive Magistrate in Brihan Mumbay, he can be appointed as an Additional District Magistrate, who shall have the powers of the District Magistrate for the purposes of Sections 18 and 20 of the Act. In our opinion, this would be the correct reading of the statute. This view of ours is further clarified by sub-section (5) of Section 20 when it is stated that nothing in this section shall preclude the State Government from conferring under any law for the time being in force, on the Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area."

27. The practice of conferring on a Commissioner of Police some magisterial powers of an executive nature has been prevalent, particularly in some metropolitan areas and the power of the State Government in this regard flows from a conjoint reading of sub-sections (1), (2) and (5) of Section 20 of the Code.

28. The order impugned contains a clear recital that the State Government, exercising powers under Section 8 of the Code, has conferred the powers exerciseable under Section 14 of the Act, 1986 upon the Police Commissioner, Gautam Buddha Nagar, for the purposes of Section 20 of the Code. It is in furtherance of the powers so conferred that the Police Commissioner has passed the order of attachment of property exerciseable by the District Magistrate under Section 14 (1) of the Act, 1986.

29. It may also be noticed that the order of attachment passed by the Police Commissioner clearly states that it would be open to the claimant to file a representation as per the procedure under Section 15, within a period of ninety days from the date of the order, in the absence of which the matter would be referred to the Special Court, Gangsters Act, Gautam Budh Nagar for its consideration.

30. Upon a consideration of the order in its entirety, it is clear that the Police Commissioner has exercised powers of a District Magistrate under Section 14 (1) and has left it open to the claimant to file a representation as per the procedure under Section 15 failing which the matter would be referred for inquiry before the Special Court as contemplated under Section 16 of the Act, 1986. The powers exercised by the Police Commissioner under Section 14 (1) are in his capacity as an Executive Magistrate, and the order so passed is to be followed by a reference to the Special Court under Section 16, making it clear that the Commissioner of Police while passing the order impugned has not exercised any judicial power as a court. This being the position it would not be open to the applicant to invoke the inherent powers of the High Court under Section 482 of the Code at this stage of the proceedings.

31. It would also be relevant to notice that the order of attachment of property under Section 14(1) is subject to a further inquiry into the character of acquisition of property by the Special Court constituted for the purpose under the Act, 1986. The provisions contained under Section 16 of the Act provides that 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 commission of an offence triable under this Act and shall pass such order under Section 17 as may be necessary in the circumstances of the case. If upon such inquiry, the Special Court finds that the property was acquired as a result of commission of any offence triable under the Act, it can order for release of the property of the person from whose possession it was attached. It is only in a situation otherwise, that the Court may make an order as it thinks fit for the disposal of the property for attachment, confiscation or delivery to any person entitled to the possession thereof. Even after passing of the order under Section 17, consequent to an inquiry under Section 16, the party concerned would have the opportunity of availing statutory remedy of an appeal under Section 18.

32. The provisions contained under the Act, 1986, relating to attachment proceedings, thus, provide a complete scheme and ample opportunity to the claimant at the stage of inquiry before the Court and also the remedy of filing the appeal.

33. In the case at hand, the proceedings against which the present application has been filed, are at a stage, which is antecedent to the inquiry to be held by the Special Court and in view thereof, there appears to be no plausible cause for the applicant to have approached the Court at this stage.

34. Counsel for the applicant at this stage, submits that the representation dated 20.7.2020, as contemplated under Section 15, filed by the applicant, has been disposed of recently. If that be so, the necessary consequences under the Act of 1986, relating to inquiry by the Special Court, would follow and any order to be passed after inquiry, would be subject to an appeal under Section 18.

35. For all the aforestated reasons, this Court is not inclined to exercise its inherent jurisdiction under Section 482 Cr.P.C.

36. The application stands, accordingly, dismissed.

Order Date :- 29.7.2021

Pratima

(Dr. Y. K. Srivastava, J.)