Hon'ble Mrs. Saroj Yadav,J.
1. The instant writ petition under Article 226 of the Constitution of India has been filed by the Career Convent Educational and Charitable Trust, registered under the Indian Trust Act, 1982, through its Chief Founder Trustee/Director-cum-Treasurer Smt. Hasina Azmat, with the following reliefs :-
" (I) To issue a writ, order or direction in the nature of certiorari quashing the impugned notification dated 13.01.2020 issued by the Respondent No.2 in so far as it pertains to conferment of powers of District Magistrate under the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1956 upon the Commissioner of Police, copy whereof is contained in Annexture-1 to the writ petition;
(II) To issue a writ, order, or direction in the nature of Certiorari quashing the impugned order dated 05.07.2021 issued by Respondent No.3, copy whereof is contained in Annexure-2 to the Writ Petition;
(III) To issue a writ, order, or direction in the nature of Certiorari quashing the impugned report dated 25.06.2021 of Respondent No.6 addressed to Respondent No.7 insofar as it seeks valuation of the properties of the Petitioner Trust, and also the impugned valuation report dated 07.07.2021 of Respondent No.7 addressed to Respondent No.6, copies whereof are contained in Annexure-3 and Annexure-4 to the Writ Petition respectively;
(IV) To issue a writ, order or direction in the nature of Certiorari quashing the order under Section 14 (1) of the U.P. Gagster and Anti-Social Activities (Prevention) Act, if any, passed by the Respondent authorities, after summoning its original from the Respondent Authorities;
(V) To issue a writ, order, or direction in the nature of Mandamus restraining the Respondent Authorities from proceeding further against the Petitioner Trust for attaching the properties of the Petitioner Trust u/s 14 (1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986;
(VI) To issue any other writ, order, or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case protecting the rights and interests of the Petitioner Trust; and (VII) To allow the writ petition with cost."
2. In addition to the aforesaid reliefs, the petitioner has also sought following relief by means of the amendment incorporated by him in compliance of the order of this Court dated 29.07.2021 :-
"(Ia). Issue a writ, order or direction in the nature of certiorari, quashing the impugned attachment order dated 26.07.2021 issued by the Respondent No.4, a copy whereof is annexed herewith as Annexure-59 to this Writ Petition."
3. Heard Sri Dr. L.P. Mishra, Sri Gaurav Mehrotra and Sri Amit Jaiswal, learned Counsel for the petitioner and Sri V.K. Shahi, learned Additional Advocate General, assisted by Sri S.N. Tilhari, learned Counsel for the respondents/State.
4. Dr. L.P. Mishra, learned Counsel for the petitioner, while pressing relief no.1, has argued that the impugned notification No.7/2020/53p/cha-pu-6-2020-01vividh/2020 dated 13.01.2020 has been issued by the Additional Chief Secretary, Department of Home, Government of U.P. (respondent no.2) in purported exercise of powers conferred under Section 20 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.), whereby the powers of the Executive Magistrate, Additional District Magistrate as also the powers of District Magistrate with respect to the enactments mentioned in the schedule appended thereto have been conferred upon the Commissioner of Police, Lucknow. He also argued that in the Schedule appended to the impugned notification dated 13.01.2020, the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as "Gangsters Act, 1986") finds mention at Serial No. 14, meaning thereby that the powers of the District Magistrate under the Gangsters Act, 1986 have been purportedly conferred upon the Commissioner of Police, Lucknow.
5. Dr. Mishra has argued that Section 14 (1) of the Gangsters Act, 1986 deals with "attachment of property", wherein the power to issue order of attachment of a property under Gangsters Act, 1986 has been clearly vested with the District Magistrate in persona. He argued that it is settled law that a statutory power must be exercised only by the body or officer in whom the same has been confided. His submission, therefore, is that it is the District Magistrate only, can issue an order for attachment of property under Section 14 (1) of the Gangsters Act, 1986.
6. Dr. Mishra, while drawing our attention to Sub-sections (1), (2) and (5) of Section 20 of the Cr.P.C., has argued that sub-section (1) of Section 20 of the Cr.P.C. empowers the State Government to appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate, whereas Sub-section (2) of Section 20 of the Cr.P.C. empowers the State Government to appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being enforced as may be directed by the State Government. Sub-section (5) of Section 20 of the Cr.P.C. provides that nothing in this section shall preclude the State Government from conferring, under any law for the time being enforce, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. His submission is that from a perusal of Sub-section (5) of Section 20 of the Cr.P.C., it is crystal clear that the State Government is not precluded from conferring upon the Commissioner of Police the powers of Executive Magistrate. However, Section 20 of the Cr.P.C. does not by any stretch of imagination empower the State Government to confer upon the Commissioner of Police the powers of District Magistrate and also the office of the Executive Magistrate is different from that of District Magistrate and words ''Executive Magistrate' and ''District Magistrate' have not been used interchangeably in the Cr.P.C.
7. Dr. Mishra has further drawn our attention to Section 5 of the Cr.P.C. and argued that Section 5 of the Cr.P.C. clearly lays down that operation of Special Law or Local Law shall remain unaffected by the provisions of Cr.P.C. Therefore, it is evident from Section 5 of the Cr.P.C. that the provisions contained in Cr.P.C. do not affect any special or local law unless there is any express provision to the contrary in the special or local law. He argued that since Section 5 of the Cr.P.C. begins with a non-obstante clause i.e. "Nothing contained in the Code of Criminal Procedure", including Section 20 Cr.P.C. can override the same. His submission is that both the provisions i.e. Section 5 and Section 20 of the Cr.P.C. have to exist in the statute and one provision cannot eat out the other provision, particularly when a provision under some statute is ridden by a non-obstante clause.
8. Learned Counsel for the petitioner has drawn our attention at this stage towards Article 254 of the Constitution of India and argued that Article 254 (2) of the Constitution of India provided that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State.
9. Elaborating his submission, learned Counsel for the petitioner has argued that the Gangsters Act, 1986 prior to its enactment was reserved for consideration of the President and the Gangsters Act, 1986 had attained Presidential Assent on 19.03.1986 and the same was published on 19.03.1986 in U.P. Gazette Extra. Part I-Ka. Thus, it is clear that it is the provisions of Gangsters Act, 1986 will prevail over the provisions of Cr.P.C. in the State of Uttar Pradesh, hence Sections 14 (1) and Section 20 of the Gangsters Act, 1986 will override the provisions contained in Section 20 (5) of the Cr.P.C. in the State of Uttar Pradesh. Moreso, the Gangsters Act, 1986 and the Cr.P.C. cover the same subject matter i.e. Entry 2 and 3 of the Concurrent List (List III) of Schedule 7 of the Constitution and such direct collusion between the statutes covering the same subject matter leaves no room for doubt that the Gangsters Act, 1986 and Cr.P.C. are repugnant to each other.
10. Learned Counsel for the petitioner has further argued that from conjoint reading of Section 1 (2) of the Gangster Act, 1986 and Section 42 of the Indian Penal Code, it is clear that the Gangsters Act, 1986 is a "local law". He argued that Section 20 of the Gangsters Act, 1986 also categorically stipulates that the provisions of Gangsters Act, 1986 or any rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment. Thus, there remains no doubt that the provisions contained in Gangsters Act, 1986 shall have overriding effect. He further submits that Section 20 (5) of the Cr.P.C. does not empower the State Government to confer powers of District Magistrate upon the Commissioner of Police as the aforesaid provision is in conflict with the provisions in Section 14 of the Gangsters Act and inconsistency is such as to bring both the aforesaid enactment in direct collusion with each other to the extent that it is impossible to obey the Code of Criminal Procedure without disobeying Gangsters Act, 1986 and vice-versa.
11. Learned counsel for the petitioner has submitted that in order to justify the impugned notification, the State has laid down much emphasis upon the judgment of the Hon'ble Supreme Court in A. N. Roy, Commissioner of Police Vs. Suresh Sham Singh : (2006) 5 SCC 745. He argued that in the aforesaid case, the State of Maharashtra has issued a notification dated 01.10.1999 conferring on the Commissioner of Police, Brihan, Mumbai, the powers of the District Magistrate within the metropolitan area of Brihan Mumbai for the purposes of Sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. The said notification was challenged before the Hon'ble Bombay High Court, wherein Hon'ble Bombay High Court have expressed following opinions :
"i) The District Magistrate or the Additional District Magistrate can be appointed out of the Executive Magistrate so appointed under Section 20(1) of the Code.
ii) The Additional District Magistrate can exercise the powers of the District Magistrate to the extent directed by the State Government.
iii) Unless a person is appointed as an Executive Magistrate, he can neither be appointed as a District Magistrate nor an Additional District Magistrate.
iv) In relation to a metropolitan area the powers of an Executive Magistrate can be conferred upon the Commissioner of Police.
v) The State Government's power to appoint any person as an Executive Magistrate in terms of the provisions of law under sub- section (1) of Section 20 of the Code does not include the power to appoint the Commissioner of Police as an Executive Magistrate.
vi) As far as the Commissioner of Police is concerned, he can only be conferred with the powers of the Executive Magistrate in terms of sub-section (5) of Section 20 of the Code but is not entitled to be appointed even as an Executive Magistrate under sub-section (1) of Section 20 of the Code.
vii) The District Magistrate, Additional District Magistrate and the Executive Magistrate are three different offices."
12. Dr. Mishra submitted that the aforesaid matter was went to the the Apex Court, wherein the Apex Court, in para-20, 24, 25 and 26 has observed as under :-
"20. We have already noticed the provisions of sub- section (1) and (2) of Section 20 of the Code. Sub-section (1) deals with the power of the State Government to appoint Executive Magistrates as many persons as it thinks fit in every district and in every metropolitan area. Sub-section (2) of Section 20 deals with the power of the State Government to appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have the powers of a District Magistrate under the Code or under any other law for the time being in force as may be directed by the State Government. We agree with the view of the High Court that unless a person is appointed as an Executive Magistrate he cannot be appointed as either an Additional District Magistrate or the District Magistrate. To this extent, the High Court's view is correct. But the views of the High Court contained in sub clause V and VI of the findings, in our view, are not correct.
24. Reading sub-sections (1), (2) and (5) of Section 20 in conjunction, we are of the view, that the State has power to appoint the Commissioner of Police of Brihan Bombay as an Executive Magistrate and further appoint him as an Additional District Magistrate, who shall have the powers of District Magistrate for the purposes of Sections 18 and 20 of the Act.
25. The State Government shall now appoint the Commissioner of Police as an Executive Magistrate in Brihan Bombay and shall further appoint him as an Additional District Magistrate, who shall have the powers of District Magistrate for the purposes of Sections 18 and 20 of the Act.
26. In the peculiar facts and circumstances of this case, the status quo ante as on 28.6.2004 shall be maintained till the Commissioner of Police is appointed by the State Government in the above terms. This would mean the Commissioner of Police after necessary appointment shall revive the case from the stage of order of eviction i.e. 28.6.2004. "
13. Dr. Mishra, therefore, has submitted that the Apex Court has clearly held in the aforesaid case that once the Commissioner of Police is appointed as an Executive Magistrate, 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 Immoral Traffic (Prevention) Act, 1956.
14. Lastly, Dr. Mishra has submitted that mere conferment of powers of District Magistrate, Lucknow upon the Commissioner of Police, Lucknow by means of the impugned notification dated 13.01.2020 is not sufficient to arm the Commissioner of Police with the powers to pass order(s) of attachment under Section 14 (1) of the Gangsters Act, 1986 and as such, the impugned notification dated 13.01.2020 is liable to be quashed in so far as it seeks to delegate powers of persona designate under Section 14 of the Gangsters Act. He has vehemently argued that had the Commissioner of Police been appointed as a District Magistrate, then, only the former could have been said to be legally competent to exercise the powers of District Magistrate, Lucknow under Section 14 of the Gangsters Act, 1986 as persona designata, however, the perusal of the impugned notification reveals that merely powers of District Magistrate have been conferred upon the Commissioner of Police and there is no mention of appointment of Commissioner of Police as District Magistrate.
15. At this stage, Sri V.K. Shahi, learned Additional Advocate General, assisted by Sri S.N. Tilhari, learned Counsel for the respondents/State has argued at length and seeks time to seek instructions on the issue.
16. As the matter involves a question of law, therefore, learned Advocate General is required to appear on behalf of the State on the next date.
17. At this juncture, learned Counsel for the petitioner submits that the petitioner's Trust is running a Medical College and is presently designated as Covid-19 hospital, therefore, some interim protection may be granted to the petitioner so that doctors and staff of the medical colleges may do their work in a healthy atmosphere.
18. Sri V.K. Shahi, learned Additional Advocate General, assisted by Sri S.N. Tilhari, learned Counsel for the respondents/State assures the Court that no further proceedings shall be initiated against the petitioner in pursuance to the impugned order dated 26.07.2021 passed by the respondent no.4-Commissioner of Police, Lucknow Police Commissionerate, District Lucknow, till the next date of listing.
19. In view of the aforesaid assurance of the learned Additional Advocate General, we do not propose to pass any interim relief at this stage.
20. Let the matter be listed on 11.08.2021 for further hearing before this Bench.