When the appeal was taken up for final hearing, an objection was raised by Sri R.K. Awasthi, learned counsel for the respondent that appeal is not maintainable against an order of release of property under the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. He submitted that Section 18 is circumscribed in its limit only to conviction and sentence and gamut of that Section cannot be stretched to challenge release of property order under Section 17, after due inquiry by a court of competent jurisdiction. Learned counsel in support of the said contention invited attention on the Court on Sections 3, 14 to 17 and Chapter 29 of Criminal Procedure Code. According to the contention raised by learned counsel only Section 372 to 394 shall apply to an appeal mentioned in Section 18 of the Gangsters Act. Learned counsel relied upon a judgment of this Court rendered in 2001(43)ACC 1133 Badan Singh Vs. State of U.P. and others in support of his objection regarding maintainability of instant appeal.
Sri R.K. Saxena learned counsel, per contra contented that there are various appeals provided under the Code of Criminal Procedure and Section 17 being para materia to Section 452 and appeal against an order of release of property is maintainable under Section 18 of the Gangsters Act. Sri Saxena contended that like Section 352 which has got an appeallable Section 354, an order under Section 17 is appeallable under Section 18 of the Gangsters Act. Sri Saxena contended that Section 372 Cr.P.C. itself contemplates and takes into its purview all the appeals provided for under the Code of Criminal Procedure Code. In support of the said contention, he has further relied upon Section 386(d) Cr.P.C.
Learned AGA also supported the contention of Sri Saxena in respect of the maintainability of the appeal. According to his contention since Gangsters Act is not a complete code in itself, it has to fall back upon Criminal Procedure Code for those procedures which are not prescribed under it. According to learned AGA, since there is no provision para materia to Section 451 to 457 and appeallable Section 454, the same has to be read under the Gangesters Act and judging from that angle, appeal Section 18 of the Gangesters Act is maintainable even against an order passed under Section 17 thereof.
After hearing both the sides, I consider it appropriate to decide above question of maintainability of this appeal as a preliminary issue because the outcome of the said decision will affect the outcome of the appeal preferred by the appellants.
Arguments from both the sides have concluded.
Put up on 28th January 2010 for delivery of orders on the question of maintainability of appeal only. I make it clear that I have not heard the parties on the merits of the matter for which, after the orders are passed on the question of maintainability, the parties are free to address this Court if need be.
Order Date :- 21.1.2010 Rk