State Of U.P. Thru. Addl. Chief ... vs Arif Anwar Hashmi And 5 Others
2023 Latest Caselaw 5672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 11
 
Case :- APPLICATION U/S 378 No.17 of 2023
 
Applicant :- State Of U.P. Thru. Addl. Chief Secy. Home, Lucknow
 
Opposite Party :- Arif Anwar Hashmi And 5 Others
 
Counsel for Applicant :- G.A.,Sulkhan Singh,Sushil Kumar Singh
 
Counsel for Opposite Party :- Manoj Kumar Misra,Anand Mani Tripathi,Roshan Babu Gupta
 
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 Anti-Social 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 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 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 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.

[Rajesh Singh Chauhan,J.]

Order Date :- 21.2.2023

RBS/-