Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 6057 of 2006 Petitioner :- Smt. Ramrati @ Rampati Yadav & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- Alpana Dwivedi,B.S. Rathore,Irfan U. Huda Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
1. Heard Shri Irfanul Huda and Shri Babban Singh Rathore, learned counsels for the petitioners and learned A.G.A. for the State.
2. Learned counsel for the petitioners has prayed that there is some spelling mistake in the name of the petitioner No.1 and he may be permitted to correct the name of petitioner No.1.
3. Learned counsel for the petitioners is permitted to correct the name of petitioner No.1 during the course of the day.
4. This writ petition has been filed by the petitioners to quash the order dated 18.2.2005 passed by the District Magistrate, Kanpur Nagar in Case No.42 of 2004, under Section 14(1) of U.P. Gangster Act as well as the order dated 4.2.2006 passed by the Special Judge, Gangster Act, Kanpur Nagar in Misc. Case No.23 of 2005.
5. The brief facts of the case are that House No.111/338, situated at Mohalla Ashok Nagar, P.S. Najeerabad, District Kanpur Nagar was constructed about 50 years ago by the father-in-law of the applicant, namely, Late Pathan Lal. The aforesaid house was purchased by the father-in-law in the name of his wife, which is recorded in the revenue record of the Nagar Nigam in the name of Smt. Phoolmati wife of Late Pathan Lal @ Panna Lal.
6. Late Pathan Lal @ Panna Lal have four sons and three daughters and after the death of Pathan Lal @ Panna Lal and Phoolmati, there are seven legal heirs. Petitioner No.1 is one of the share holder of Late Pathan Lal @ Panna Lal and petitioner No.2 is also heir of Late Chhangelal. Anand Kishor is also daughter of Late Pathan Lal @ Panna Lal and is legal heir of the property in question. After the death of Pathan Lal and Phoolmati no partition was made between the legal heirs and due to mutual consent all the legal heirs are residing in the house in question separately.
7. Against Chintani Yadav son of Anand Kishore, who is residing in the house in question, police of P.S. Nawabganj, District Kanpur Nagar submitted a report before the District Magistrate, Kanpur Nagar on 3.11.2004 with the allegation that Chintani Yadav is a leader of Criminal Gang and has constructed the house in question No.111/338 in Ashok Nagar, District Kanpur Nagar. On the basis of the report submitted by the police of police station Nawabganj, District Kanpur Nagar, District Magistrate, Kanpur Nagar vide order dated 10.11.2004 issued notice to Chintani Yadav under Section 15 of the Gangster Act and also seized the property in question. In compliance of the order dated 10.11.2004 Police of P.S. Nawabganj seized the portion of House No.111/338. The Petitioners moved an application along with affidavit before the District Magistrate, Kanpur Nagar for opening the seal of his portion. The petitioners also submitted photocopy of Panchshala record, which shows that House No.111/338 is an old constructed house. The application moved by the petitioners was rejected by the District Magistrate, Kanpur Nagar vide order dated 18.2.2005. The petitioners also moved on application on 20.4.2005 before the Special Judge, Gangster Act, Kanpur Nagar. The Special Judge, Gangster Act, Kanpur Nagar also rejected the application of the petitioners on 4.2.2006.
8. The argument of learned counsel for the petitioners is that the property in question is joint property and in the present time due to mutual consent all the legal heirs are residing separately in their own portion. Both the orders passed by the District Magistrate, Kanpur Nagar as well as Special Judge, Gangster Act, Kanpur Nagar are unjust, improper and against the correct provisions of law.
9. Per contra learned A.G.A. has supported the orders passed by the court below. He has argued that all the residents of the house are beneficiaries of the constructions made by the alleged Gangster Chintani Yadav and therefore, the orders passed by the respondents is in accordance with law and calls for no interference. The petitioners have failed to prove their defence before the respondents and therefore, the writ petition is devoid of merit and deserves to be dismissed.
10. In order to appreciate the rival submissions, it seems to be just and expedient to refer to the relevant provisions of the Gangster Act which are as follows: -
14. Attachment of property .- (1) If the District Magistrate has reason to believe that any property, whether movable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall mutatis mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.
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.
17. Order after inquiry .- If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.
11. From the above provision it is evident that the order of the District Magistrate attaching one's property should be based on reasons and not arbitrary. The expression "reason to believe" appearing therein has some intent and purpose. It puts check on the arbitrary exercise of power of attachment by denying him of his right to any property. What the law requires is that there must be reason to believe that the property sought to be attached has been acquired by a ''gangster' as a result of commission of any offence under the Act. The expression ''reason to believe' contemplates an objective determination based on intelligent care and deliberation involving judicial review as distinguished from purely subjective consideration. There must be rational and intelligible nexus between ''reason' and ''belief'. The word ''belief' is very much stronger word than ''suspect' and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that what has been alleged is true. The expression ''reason to believe' is also defined in section 26 of the Indian Penal Code. According to the said definition a person is said to have ''reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of the state of mind. Similar words "reason to believe" as appearing in the Act are also there in the Income Tax Act. Interpreting the said expression, the Supreme Court in the case of M/s. Ganga Saran and Sons Private Limited Calcutta vs. Income Tax Officer and Others, AIR 1981 SC 1363, observed that words "has reason to believe" is stronger than the words "is satisfied". The belief entertained by the authority must not be based on reasons which are relevant and material. The Court, of course, cannot investigate into the adequacy or sufficiency of the reasons which weighed with the authority in coming to the belief, but the Court can certainly examine whether the reasons are relevant and have a bearing in the matter in regard to which it is required to entertain the belief.
12. It is now well settled that property being made subject matter of an attachment under sections 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act. The District Magistrate has to record its satisfaction on this point. The satisfaction of the District Magistrate is not open to challenge in any appeal. Only a representation is provided for before the District Magistrate himself under section 15 of the Act and in case he refuses to release the property on such representation, he is to make a reference to the Court having jurisdiction to try an offence under the Act. The Court, which dealing with the reference made under sub-section (2) of Section 15 of the Act has to see whether the property was acquired by a gangster as a result of commission of an offence triable under the Act and has to enter into the question and record his own finding on the basis of the inquiry held by him under section 16 of the Act. If the Court comes to the conclusion that the property was not acquired by the gangster as a result of commission of an offence triable under the Act, the Court shall order for release of the property in favour of the person from whose possession it was attached. If the conclusion of the Court is otherwise, it may pass such orders as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof or otherwise. This power has been conferred on the Court under Section 17 of the Act. In other words, the attachment made under Section 14 of the Act can be upset by Court after an enquiry under section 16 of the Act and in that situation the Court has power to release the attached property in favour of the person from whose possession the property was attached. The power of the Court to hold an enquiry under Section 16 on the reference made by District Magistrate is not an empty formality, which has a purpose behind it. The object behind providing the power of judicial scrutiny under section 16 of the Code is to check arbitrary exercise of power by the District Magistrate in depriving a person of his properties and to restore the rule of law, therefore a heavy duty lies upon the Court to hold a formal enquiry to find out the truth with regard to the question, whether the property was acquired by or as a result of the commission of an offence triable under the Act. The order to be passed under section 17 of the Act must disclose reasons and the evidence in support of finding of the Court. The Court is not empowered to act as a post office or mouthpiece of the State or the District Magistrate. If a person has no criminal history during the period the property was acquired by him, how the property can be held to be a property acquired by or as a result of commission of an offence triable under the Act is a pivotal question which has to be answered by the Court. Besides, the aforesaid question, the other important question to be considered by the Court is whether the property which was acquired prior to the registration of the case against the accused under the Act or prior to the registration of the first case of the Gangster chart can be attached by District Magistrate under Section 14 of the Act.
13. The District Magistrate as well as the Special Judge have not recorded the finding that the petitioner has indulged in offences like Docoity, Loot, Extortion and Kidnapping for ransom for the purpose of acquiring the property in dispute. No finding has been recorded that the petitioner constructed the house in question from the money gained from any of the aforesaid crimes. Law requires the authority to record finding that the properties have been acquired from the money earned or acquired from the crime directly. The nexus between the crime and acquisition of property is required to be clearly proved. The District Magistrate has rejected the objection only on the ground that the objectors have not filed any evidence in support of their case. However, evidence was led by the petitioner before the Special Judge but he has not rightly considered the same.
14. The Special Judge has rejected the objection of the petitioner only on the ground that she has not been able to prove how she is in possession over 8 rooms out of 11 in the disputed house when the property is of 7 joint owners. Finding has been recorded that if there are 7 owners of the house the petitioner cannot have more than 1/7 share therein and she cannot have 8 rooms in her possession. The finding of the court below is absolutely perverse. In an undivided property the co-owners have share in each and every inch of the property and without partition of the joint property by way of settlement or through court, the presumption of jointness of the property continues. The house being ancestral and there being no evidence that the same was constructed from the money gained from criminal activities by the Chintani Yadav, without partition the share of Chintani Yadav cannot be determined and it cannot be attached.
15. There is no evidence on record that the constructions were made by Chintani Yadav in the house in dispute. No finding has been recorded that the construction has been made by committing crime and construction was made around the period when the crime was committed.
16. On account of the orders passed by the District Magistrate and the Special Judge, the rights of the persons to live in their home, who had nothing to do with the act of the alleged gangster, Chintani Yadav, have been affected regarding their dwelling house on a very cursory evidence.
17. In view of the above the orders dated 18.02.2005 passed by District Magistrate, Kanpur Nagar in Case No. 42 of 2004, under Section 14(1) of the gangster Act and the order dated 04.02.2006 passed by Special Judge, Gangster Act, Kanpur Nagar in Misc. Case No. 23 of 2005, State vs. Chintani Yadav are, hereby, quashed. The property in dispute shall be released forthwith.
18. The petition stands allowed. Order Date :- 5.9.2018 T. Sinha