2012 Supreme(All) 1370

[2012(6) ADJ 231]
ALLAHABAD HIGH COURT
BEFORE : VINOD PRASAD, J.
KAILASH SAHKARI AVAS SAMITI LIMITED, KANPUR NAGAR ....Appellant
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Criminal Appeal No. 3000 of 2003, decided on 22nd May, 2012)

Headnote:(A) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Sections 17, 16,14 and 3—Criminal Procedure Code, 1973—Sections 482 and 372—Possession—Entitlement to—Properties released in favour of respondents by impugned order of Special Judge—Subject to litigation pending in competent Court—Even after adjudication of entitlement of possession by Spl. Judge—Respondents did not refrain from their illegal activities—Appellant Samiti filed an FIR against them under Section 3—Proceedings challenged under Section 482 of Cr.P.C.—Cases clubbed before Division Bench of High Court—It, however, did not pass any order regarding possession of properties and entitlement thereof—Preliminary objection raised regarding maintainability of appeal before High Court—After deciding objection, appeal heard on merits—Sections 14 to 17 contemplates an inquiry, which is primarily civil in nature—And has nothing to do with trial of offences and punishment—This inquiry certainly is different from prosecution of an accused for a crime committed under Act—While passing impugned order Special Judge committed ex-facie error by clubbing both types of proceedings into one and deciding claim of respondents in their favour—He failed to bifurcate criminal trial for an offence under Act—And an inquiry as contemplated under Sections 14, 16 and 17 regading acquiring and disposal of property—Court below failed to note that inquiry under Section 16 is in nature of a quasi-Civil proceedings—In present case properties were attached but subsequently, it were released ex parte in favour of respondents by ACM—Thereafter, appellant Samiti invoked jurisdiction of Special Judge to rectify Civil wrong—While pending consideration of application under Section 16 (2)—An FIR lodged as an ancillary proceedings—As respondents continued to interfere with properties in question—Hence, proceedings of FIR under Section 3 was entirely separated and related with altogether different facts of criminal trial—Further, Special Judge committed an error of law in joining FIR lodged by appellant Samiti with that of its right to possession under Section 16 read with Section 17—Court below did not address itself to question of possession on date of attachment to determine from whose possession, property was attached—It is contrary to Section 17—Mere raising of some construction not entitled a person to get possession over property—Unless it is established that he was in lawful possession—Question of possession never raised before High Court—Admittedly, on earlier occasion, question of possession considered by Special Judge—Held, that appellant Samiti is entitled to possession of disputed properties—Proceedings initiated much earlier than FIR—FIR lodged to curb illegal activities of respondent—Quashing of FIR not to affect claim of appellant Samiti regarding their entitlement to possession under Section 16 (2)—Appellant Samiti entitled to possession of disputed properties—Principle of ‘Res-judicata’ applicable on facts of present appeal—Impugned order passed without application of mind ignoring documentary evidences. [Paras 4, 11, 15, 23 to 30, 32, 40 and 42]

       (B) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Sections 14 to 18—Proceedings thereunder—Bifurcated into two—One in nature of a Civil Wrong—And other regarding punishment of crime. [Para 23]

       (C) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Section 14—Scope of—Attachment of property—In term of Section 14 if D.M. has reason to believe that—Any property whether movable/immovable acquired by a gangster—As a result of commission of offence under Act—He may order attachment of such property—Whether or not cognizance of such offence has been taken by any Court. [Para 23]

       (D) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Section 17—Possession—Re-delivery of property—Power of Court—Section 17 confers power on Court to deliver property—To a person from whose possession it has been attached—Or Court can hand it over to a person entitled to possession thereof. [Para 23]

       (E) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Section 16—Inquiry—Two phases of—Firstly, whether any property has been acquired by a gangster by commission of offence under Act or not—Secondly, as to from whose possession property has been attached—Or who is entitled to its possession, in case Act does not apply—First part relates to acquisition of property—Whereas later one relates to its release. [Para 23]

       (F) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Sections 14 to 17—Inquiry—Nature of—It is primarily civil in nature—And has nothing to do with trial of offences and punishment. [Para 23]

       (G) U.P. Gangster’s and Anti-Social Activities (Prevention) Act, 1986—Section 17—Release—Property—Two types—First part, if Court finds that property was not acquired by a Gangster—As a result of commission of offence under Act—Property has to be released to person from whose possession, it was attached—But, second part requires that in other cases—Court may makes such order for disposal of property by attachment confiscation or delivery of property to person “entitled to possession thereof" or otherwise. [Para 25]