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2020 Supreme(All) 733
IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Shilendra Singh – Petitioner
Versus
State Of U.P. And Ors. – Respondents
Matters Under Article 227 No. - 9002 of 2019
Decided On : 19-11-2020
Advocate Appeared:
For the Petitioner: Fakhruzzaman
Point of Law: The 1986 Act therefore has to be read as a complete Code in itself so as to provide such benefit of appeal which the legislature appears to have intended under Section 18. Applying the interpretive tool, Section 18 categorically provides an appeal against any judgment or order (emphasis supplied) and then mutatis mutandis applies Chapter XXIX of the Cr.P.C. to such an appeal. Judges while interpreting such provisions have to adopt the legalistic method as well as the pragmatistic method as they are said to wear two hats. This distinguishes them from mere umpires and they enjoy a more certain interpretive freedom by applying reasoning through analogy in order to interpret and explain cannons of statutory construction. Applying the said principles, we are also of the opinion that Section 18 does not contain any prohibitive language nor does it give a restrictive meaning to the right of appeal against any judgment or order under the Act which is a special act. This therefore includes the right of an appeal against an order refusing to release attached property. The interpretation has to be meaningful and that which advances the cause of justice
Headnote:
Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 – Sections 16, 18 – Constitution of India, 1950 – Articles 227, 226 – Writ of certiorari – Petitioner's representation Reject – Petitioner, Shilendra Singh, has instituted this petition under Article 227 of the Constitution, praying that a writ, order or direction in the nature of certiorari be issued, quashing an order passed by the learned Special Judge (Gangsters Act)/Additional Sessions Judge, Court No. 6, Jhansi, made in G.S.T. Misc., accepting the District Magistrate's reference under Section 16 (1) of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 – Also challenged is the order of the District Magistrate, Jhansi, ordering attachment of three motor vehicles of the petitioner under Section 14 (1) of the Act, 1986, and a further order passed by District Magistrate last mentioned, rejecting petitioner's representation made under Section 15(1), seeking release of the said property and making a reference along with his report to the Court under Section 16 (1) of the Act, 1986. –
Finding of the Court:
If one were to accept that the order under Section 17 of the Act, 1986 made by the Judge or Court on a reference by the District Magistrate under Section 16 (1) is an order of drastic civil consequences, confiscatory in nature, an aggrieved party is not remediless. The entire scheme of appeals provided under Chapter XIX of The Code of Criminal Procedure, 1973 is available under the Act, 1986. – Counsel for the petitioner submits that the impugned order passed by the Court is not specifically made appealable under Section 18 of the Act, 1986, as it does not say that an order under Section 17 would be appealble. – Section 18 provides in general terms that any judgment and order of a court, passed under the provisions of the Act, 1986, would be appealable. – There is no good reason for this Court to entertain this petition. – It is, accordingly, dismissed on the ground of availability of an equally efficacious alternative remedy. –
Result: Petition Dismissed
JUDGMENT :
1. The petitioner, Shilendra Singh, has instituted this petition under Article 227 of the Constitution, praying that a writ, order or direction in the nature of certiorari be issued, quashing an order passed by the learned Special Judge (Gangsters Act)/Additional Sessions Judge, Court No. 6, Jhansi dated 13.09.2019, made in G.S.T. Misc. No. 454 of 2017, accepting the District Magistrate's reference under Section 16 (1) of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (for short “the Act, 1986”). Also challenged is the order of the District Magistrate, Jhansi dated 08.08.2017, ordering attachment of three motor vehicles of the petitioner under Section 14 (1) of the Act, 1986, and a further order dated 22.11.2017 passed by the District Magistrate last mentioned, rejecting the petitioner's representation made under Section 15(1), seeking release of the said property and making a reference along with his report to the Court under Section 16 (1) of the Act, 1986.
2. It must be remarked at the outset that in a petition under Article 227 of the Constitution, no order in the nature of a writ, mentioned in Article 226 of the Constitution, can be asked for. The distinction between a writ petition under Article 226 of the Constitution and a petition under Article 227 is substantial and clear. The prayer, therefore, made in this petition is not worded the way, it ought to be in a petition under Article 227 of the Constitution. Nevertheless, this petition being one under Article 227 of the Constitution, this Court proceeds to treat the prayer as one made to set aside the impugned orders above described, invoking the supervisory jurisdiction of this Court.
3. This petition has not been admitted to hearing formally, though this Court required the State to file a counter affidavit within two weeks, vide order dated 29.11.2019. The State has filed a counter affidavit in the matter on 08.01.2020, which is on record. On 18.02.2020, this Court passed the following order :
“Learned counsel for the petitioner is hereby directed to show case laws about maintainability of the writ petition particularly keeping in view the provisions provided under Section 18 of the U.P. Gangster and Anti Social Activities (Prevention) Act.
Put up this matter as fresh on 27.02.2020.”
4. Heard Sri Fakhruzzaman, learned counsel for the petitioner and Sri Arvind Kumar, learned Additional Government Advocate appearing on behalf of the State. Learned A.G.A. has pressed his objection to the effect that this petition under Article 227 of the Constitution is not maintainable, as the impugned order dated 13.09.2019, in G.S.T. Misc. No. 454 of 2017, is appealable under Section 18 of the Act, 1986 to this Court. This Court proposes to dispose of that objection in the first instance.
5. It appears that the petitioner was served with a notice dated 08.08.2017 under Section 14 (1) of the Act, 1986, detailing a list of some 16 cases registered against him between the years 2004-17, most of which were pending trial in different courts at the time. He was required to disclose the source of his income to acquire three motor vehicles, two tractors and a Pulsar motorcycle, indicating clearly that according to the police report, he had no source of income or ancestral property to furnish the necessary wherewithal. The properties were, prima facie, held to be proceeds of crime, relevant under the Act, 1986 and, therefore, liable to be attached. The properties were ordered to be attached as an interim measure, pending the petitioner’s representation that he may prefer under Section 15 (1) of the Act, 1986. The petitioner preferred a statutory representation, disclosing the source of acquisition of these movables. The representation is one dated 25.09.2017. The District Magistrate proceeded to reject this representation by his order dated 22.11.2017 made in Case No. 5 of 2017, under Section 14 (1) of the Act, 1986. The District Magistrate having declined t
