Unknown vs State Of Uttarakhand & Others
2025 Latest Caselaw 421 UK

Uttarakhand High Court

Unknown vs State Of Uttarakhand & Others on 15 May, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

                            Judgment Reserved on: 07.03.2025
                           Judgment Delivered on: 15.05.2025

HIGH COURT OF UTTARAKHAND AT NAINITAL

         Criminal Writ Petition No.778 of 2024

Prarthana Asthana (W/o Deceased Pradeep Kumar
Asthana)
                                      .........Petitioner
                               Vs.

State of Uttarakhand & others
                                         ........Respondents

Present:-
      Mr. Vishal Rai, learned counsel for the petitioner (appeared
      through V.C.)
      Mr. B.C. Joshi, learned AGA along with Ms. Sweta Badola
      Dobhal, learned Brief Holder for the State.


Hon'ble Pankaj Purohit, J. (Oral)

The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner for seeking inter alia, reliefs, de-freezing of her late husband Pradeep Kumar Asthana's bank account, de- freezing of her personal bank account, her sons bank account and also de-freezing of the bank account of their business entity (Kumar Petro).

2. The facts in brief are that the deceased husband of the petitioner was CMD of Kamuna Credit Cooperateie Society Limited (KCCSL). Various FIRs were filed against KCCSL for non-payment of dues to its members and the deceased being its CMD was arrested. Thereafter, one more FIR No.2 of 2022 dated 10.01.2022 was filed against the deceased (husband of petitioner) under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (for short "the Act, 1986") at P.S. Lohaghat, District Champawat. The

deceased on 03.03.2022 moved to this Court praying to quash/stay of the FIR No.2 of 2022, but before the petition could have been decided, the petitioner of that writ petition i.e. deceased husband of the petitioner died in judicial custody. Thereafter, on 17.01.2023, a notice under Section 91 Cr.P.C. and Section 14(1) of the Act, 1986 was issued by the Investigating Officer at P.S. Pancheswar, District Champawat to Branch Manager, SBI, Aligaj, Lucknow, U.P. requesting him to freeze the accounts of the petitioner, her late husband i.e. Pradeep Kumar Asthana and her son i.e. Aman Asthana. The manager in furtherance thereof froze the aforementioned accounts and also the Provident Fund account attached to the main bank accounts and even the bank account of Kumar Petro, Bharat Petrol Pump.

3. Heard learned counsel for the parties.

4. Learned counsel for the petitioner submits that an order under Section 14(1) of the Act, 1986 could only be passed by the District Magistrate of the District concerned and not by the Investigating Officer and he states that in the present case in hand, initially, the bank accounts were frozen by the notice issued by the Investigating Officer and District Magistrate, Champawat only passed an order under Section 14(1) of the Act, 1986 at a later stage without applying mind in a mechanical and cursory manner for freezing the accounts which were already freezed by orders of Investigating Officer. He further submits that when the District Magistrate passed an order under Section 14 of the Act, 1986, due reply as mandated under Section 15 of the Act, 1986 explaining the source of money in the frozen bank accounts was filed

by the petitioner's family. But, the District Magistrate inspite of being aware of facts regarding death of the petitioner's husband i.e. Pradeep Kumar Asthana, abatement of trial because of his death, proper explanation of source of money, has kept the matter in abeyance till date and has passed no order under Section 15 of the Act, 1986.

5. Learned counsel for the petitioner also submits that the petitioner or her son were not arrayed as accused in the FIR No.2 of 2022, therefore, there is no reason that their accounts be frozen. He further submits that feezing of account of their business entity i.e. Kumar Petro which happens to be their only source of income as well as source of livelihood of 15-20 employees working there is violative of Article 19(1)(g) of Constitution of India. He also submits that freezing of these accounts has caused great hardship to the petitioner and her family as they are not able to pay loans taken by late Mr. Pradeep Asthana.

6. Per contra, learned counsel for the State relying upon his counter affidavit submits that although it is true that the petitioner was not named in the FIR No.02 of 2022, but she is the Director of KCCSL and she along with her deceased husband was the authorized signatory of the bank accounts of KCCSL. He further pointed out that the petitioner has been implicated in five different cases as per SCRB report. He also submits that the order under Section 14 was passed by the District Magistrate, Champawat after going through evidence collected by police, statement of witnesses recorded under Section 161 Cr.P.C. and other material available on record.

7. After hearing the counsel for the parties and perusing the material available on record, I am of the opinion that this Court not well equipped to go into details and find out the source of money or to find out that the money is freezed, accounts has been acquired through illegal means. The aforesaid power to find out the source of income and veracity of explanation given by the petitioner after freezing their accounts under Section 14 has been given to competent authorities under Sections 15 and 16 of the Act, 1986, which are herein quoted below:-

"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 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 Act, 1872 (Act No. 1 of 1872), notwithstanding."

8. But, at the same time, this Court is cognizant of the fact that simply keeping a matter pending and not deciding upon it, is nothing but abuse of process of law. Therefore, this Court directs the respondent no.2 to decide the explanation given by the petitioner regarding the source of income as mandated by Section 15 of the Act, 1986, if not already decided, expeditiously but not later than three months from the date of production of certified copy of his order.

9. With the aforesaid directions, the present writ petition stands disposed of.

(Pankaj Purohit, J.) 15.05.2025 AK