Allahabad High Court
Afjal Ansari vs State Of U.P. And Anothers on 6 January, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 87 Case :- APPLICATION U/S 482 No. - 38478 of 2022 Applicant :- Afjal Ansari Opposite Party :- State Of U.P. And Anothers Counsel for Applicant :- Upendra Upadhyay,Ajay Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh,J.
1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC") has been filed, seeking quashing of the order dated 04.08.2022 whereby the discharge application of the accused-petitioner has been rejected by the learned Additional Sessions Judge 1st, Ghazipur in Special Sessions Trial No.980 of 2012 (State Vs. Afjal Ansari) under Section 3(1) of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the "Gangsters Act"), arising out of Case Crime No.01052 of 2007 lodged at Police Station Mohammadabad, District Ghazipur as well as for quashing of the order dated 23.09.2022 passed by the Special Judge (MP/MLA) Court/Additional Sessions Judge, Ghazipur by which charges have been framed against the accused-petitioner in Special Sessions Trial No.980 of 2012 under Section 3(1) of the Gangsters Act in the said case.
Further prayer has been made for quashing of the entire proceedings of the Special Sessions Trial No.980 of 2012.
2. Heard Mr. Dilip Kumar, learned Senior Advocate, assisted by Mr. Upendra Upadhyay and Mr. Ajay Srivastava, Advocates, representing the accused-petitioner, as well as Mr. Mahesh Chandra Chaturvedi, Additional Advocate General assisted by Mr. Sanjay Kumar Singh, representing respondent-State, and gone through the entire file.
3. It is said that the applicant is a social worker and politician. He remained Member of Legislative Assembly (hereinafter referred to as the "MLA") from Mohammadabad Constituency, District Ghazipur since 1985 and got elected five times. At present the accused-petitioner is second time Member of Parliament from Ghazipur Constituency.
4. The accused-petitioner was an accused in offence of brutal and gruesome murder of the then sitting MLA, Late Krishna Nand Rai and six others for which an FIR was lodged at Case Crime No.0589 of 2005, under Sections 147, 148, 149, 307, 302, 404 and 120-B IPC at Police Station Bhanvar Kol, District Ghazipur. The accused-petitioner, along with co-accused, were charge sheeted in the said offence. The trial of the said case got transferred by the Supreme Court to the CBI Court situated at Rouse Avenue Court Complex, New Delhi. The CBI Court, presided over by Mr. Arun Bhardwaj, Special Judge (PC Act): CBI-09 (MPs/MLAs Cases) RACC, New Delhi had acquitted all the accused vide judgment and order dated 03.07.2019 as all the eye-witnesses and other material witnesses turned hostile. Paragraphs 936 to 943 of the said judgment and order dated 03.07.2019 would be relevant to extract here-under:-
"936. Hostile Witnesses:- This is a gruesome case involving murder of seven persons. The investigation of the case was transferred from U.P. Police to CBI. The trial of the case was also transferred from U.P. to Delhi. Unfortunately, the case of the prosecution has suffered as all the eye witnesses and other material witnesses turned hostile.
937. The Hon'ble Supreme Court in the case of Mahender Chawla & Ors vs. Union of India & Ors, 2018 (12) JT 21 has noted the important of the witness particularly in a criminal trial as under:-
"In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.
xxx xxx xxx The value of witnesses can't be denied, keeping in view the dependency of the criminal proceedings on the testimonies and cooperation of witnesses in all the stages of the proceedings, especially in those cases where the prosecution has to establish the guilt with absolute certainty via oral cross-examination of witnesses in hearings open to the world at large. In such cases, the testimony of a witness, even if not as an eye witness, may prove to be crucial in determining the circumstances in which the crime might have been committed..."
938. It is further held by the Hon'ble Supreme Court that:-
"Notwithstanding the same, the conditions of witnesses in Indian Legal System can be termed as ''pathetic'. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing life threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc."
939. Further, the Hon'ble Supreme Court has observed:-
"5) It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ''witness protection'.
6) Over the last many years criminal justice system in this country has been witness to traumatic experience where witnesses turn hostile. This has been happening very frequently. There may be many causes for this sordid phenomena."
940. On the analysis of various cases, the Hon'ble Supreme Court has noted following reasons for witnesses retracting their statements before the court and turning hostile:-
"(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of stock witnesses.
(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation and trial
(vii) Non-existence of any clear-cut legislation to check hostility of witness."
941. In Para-10, the Hon'ble Supreme Court has held as under:-
"8) All this has created problems of low convictions in India. This has serious repercussions on the criminal justice system itself. Criminal justice is closely associated with human rights. Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law."
942. The Hon'ble Supreme Court has noted that the Central Government has now finalized Witness Protection Scheme, 2018. The essential features of the scheme include identifying categories of threat perceptions, preparation of a "Threat Analysis Report" by the Head of he Police, types of protection measures like ensuring that the witness and the accused do not come face to face during investigation etc., protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc. The Hon'ble Supreme Court has given its imprimatur to the scheme and approved the same. The scheme is to be enforced in letter and spirit by the Union of India and States and Union Territories. The scheme is the law under Article 141/142 of the Constitution, till the enactment of suitable Parliament and/or State Legislation on the subject.
943. The case in hand is another example of prosecution failing due to hostile witnesses. If the witnesses in this case had the benefit of Witness Protection Scheme, 2918 during trial, the result may have been different."
5. Against the said judgment and order of acquittal passed by the learned CBI Court, Rouse Avenue Court Complex, New Delhi, appeal has been preferred before the Delhi High Court and the same has been admitted. Direction has been issued for preparation of paper-book and listing of the appeal for hearing.
6. After the FIR vide Case Crime No.0589 of 2005, under Sections 147, 148, 149, 307, 302, 404 and 120-B IPC lodged at Police Station Bhanvar Kol, District Ghazipur against the present applicant and co-accused, a case under Section 3(1) of the Gangsters Act came to be registered against three accused persons, namely, Afjal Ansari (present applicant), his brother Mukhtar Ansari and Azaz alias Azaz-ul-Haq, was lodged vide Case Crime No.1052 of 2007 at Police Station Mohammadabad, District Ghazipur. In respect of two co-accused persons, separate FIRs vide Case Crime Nos. 1051 and 1053 of 2007 were registered under Section 3(1) of the Gangsters Act and separate charge-sheets were filed against them.
7. It is alleged that the accused-petitioner is the member of a dreaded gang of criminals and this gang is actively involved in committing heinous offences such as murder, abduction, extortion, loot, ransom and from committing these offences and striking fear and terror in the minds and hearts of the public in general in the State, they had acquired enormous illegal wealth and still accumulating illegal wealth by committing heinous offences. It is further alleged that the gang leader, Mukhtar Ansari had been directing the activities of the gang from jail itself. It is further alleged that the gang leader is the most dreaded criminal having a very long criminal history of heinous offences and because of his fear and terror and political power/influence, no one would dare to give evidence against the present accused-petitioner or any other member of the gang nor anyone would come forward to lodge a compliant/FIR. It is further alleged that this gang was involved in commission of murder of Late Krishna Nand Rai, sitting MLA from Mohammadabad Constituency from where the present accused-petitioner used to get elected and six other persons in a most gruesome, cruel and heinous manner for which FIR at Case Crime No.0589 of 2005, under Sections 147, 148, 149, 307, 302, 404 and 120-B IPC at Police Station Bhanvar Kol, District Ghazipur came to be registered against Mukhtar Ansari, Afjal Ansari (present accused-petitioner) and others.
8. In the FIR lodged at Case Crime No.0589 of 2005, charge-sheet was submitted on 21.02.2006 and further additional charge-sheet was filed on 15.03.2006. It is further said that on 22.01.1997 at 17:45 hours one businessman, Nand Kishore Sangara alias Nanu Babu was abducted in a white Maruti Car in which charge-sheet was filed by the CBI against dreaded criminals, Mukhtar Ansari, Shahabuddin, Maragurrahman, Barbinder, Gurmeet Singh, Jasveer Singh, Laxmi Yadav, and Jitendra Tiwari and after investigating the offence, charge-sheet was filed in the CBI Court.
9. The gang-chart was approved by the District Magistrate, Ghazipur on 19.11.2007 against these three persons, Mukhtar Ansari, Afjal Ansari (present accused-applicant) and Azaz alias Azaz-ul-Haq.
10. In paragraph-42 of the present application, criminal cases registered against the accused-petitioner have been mentioned, which are as follows:-
1. Case Crime No.028 of 1998, U/S 171-F IPC read with Section 135(2)of Representation of People Act lodged at PS Nonhara Distt Ghazipur;
2. Case Crime No. 0260 of 2001, U/S 147, 148 and 353 IPC read with Section 3 of the Damages to Public Property Act and Section 7 Criminal Law Amendment Act, PS Mohammadabad, District Ghazipur;
3. Case Crime No. 0584 of 2005, U/S 147, 148, 149, 302, 404 and 120-B IPC read with Section 7 Criminal Law Amendment Act, PS Bhanvar Kol, District Ghazipur;
4. Case Crime No.0493 of 2005, U/S 302, 506 and 120-B IPC, PS Mohammadabad, District Ghazipur;
5. Case Crime No.01051 of 2007, U/S 302, 120-B, 436 and 427 IPC read with Section 345 Explosive Act and Section 7 Criminal Law Amendment Act, PS Kotwali, District Ghazipur;
6. Case Crime No.01052 of 2007, U/S 3(1) Gangsters Act, PS Mohammadabad, District Ghazipur; and
7. Case Crime No. 018 of 2014, U/S 171-Ja and 88 IPC and 12(2) Representation of People Act, PS Chakar Ghatta, District Chandauli."
11. Against brother of the accused-petitioner, Mukhtar Ansari, the gang leader, a gangster, the biggest Bahubali in the country and a dreaded criminal, following cases are registered:-
"1. NCR No.219 of 1978, under section 506 IPC;
2. Case Crime No.169 of 1986, under Section 302 IPC,
3. Case Crime No.106 of 1988, under Section 302 IPC,
4. Case Crime No.410 of 1988, under Sections 147, 148, 149, 302 and 307 IPC,
5. NCR No.233 of 1988, under Sections 504 and 506 IPC,
6. Case Crime No.124 of 1990, under Sections 364, 395 and 397 IPC,
7. Case Crime No.399 of 1990, under Sections 147, 148, 149 and 307 IPC,
8. Case Crime No.682 of 1990, under Sections 147 and 506 IPC,
9. Case Crime No.266 of 1990, under Sections 467, 468, 420, 120-B IPC,
10. Case Crime No.44 of 1991, under Section 302 IPC,
11. Case Crime No.172 of 1991, under Sections 147, 148 and 302 IPC,
12. Case Crime No.294 of 1991, under Sections 307 and 302 IPC,
13. Case Crime No.229 of 1991, under Sections 147, 148, 149 and 302 IPC,
14. Case Crime No.456 of 1993, under Sections 365 and 387 IPC,
15. Case Crime No.503 of 1993, under Section 5 TADA,
16. Case Crime No.834 of 1995, under Sections 353, 504 and 506 IPC,
17. Case Crime No.165 of 1996, under Sections 323, 352 and 307 IPC,
18. Case Crime No.192 of 1996, under Section 3(1) U.P. Gangster Act,
19. Case Crime No.264 of 1996, NSA,
20. Case Crime No.237 of 1996, under Sections 120, 135, 136 Lo.Pra.Adhi.;
21. Case Crime No.19 of 1997, under Sections 364A, 365, 302, 120-B and 34 IPC;
22. NCR No.19 of 1997, under Section 506 IPC,
23. Case Crime No.121 of 1997, under Section 364A IPC;
24. Case Crime No.377 of 1997, under Section 506 IPC;
25. Case Crime No.58 of 1998, NSA;
26. Case Crime No.33 of 1999, NSA;
27. Case Crime No.17 of 1999, under Section 506 IPC;
28. Case Crime No.60 of 1999, under Sections 419, 420, 109 and 120-B IPC;
29. Case Crime No.106 of 1999, under Sections 307, 302 and 120-B IPC;
30. Case Crime No.126 of 1999, under Section 506 IPC;
31. Case Crime No.428 of 1999, under Section 2/3 U.P. Gangster Act;
32. Case Crime No.66 of 2000, under Sections 147, 336, 353 and 506 IPC;
33. Case Crime No.209 of 2002, under Section 3/7/25 Arms Act;
34. Case Crime No.131 of 2003, under Sections 353, 504 and 506 IPC;
35. Case Crime No.9A of 2004, under Sections 147, 148, 149, 307 IPC;
36. Case Crime No.808 of 2004, under Sections 147, 148, 149, 393, 307, 507, 506, 504 and 342 IPC;
37. Case Crime No.493 of 2005, under Sections 302, 506 and 120-B IPC;
38. Case Crime No.589 of 2005, under Sections 147, 148, 149, 302, 307, 404, 120-B IPC and Section 7 Criminal Law amendment Act;
39. Case Crime No.1580 of 2005, under Sections 147, 148, 149, 302, 435, 436, 153A IPC;
40. Case Crime No.1051 of 2007, under Section Gangster Act;
41. Case Crime No.361 of 2009, under Sections 302, 120-B IPC and Section 7 Criminal Law Amendment Act;
42. Case Crime No.1182 of 2009, under Sections 307, 506 and 120-B IPC;
43. Case Crime No.66 of 2009, under Section 3 Makoka Act;
44. Case Crime No.1866 of 2009, under Sections 147, 148, 149, 307, 302, 325, 404, 120-B IPC and Section 7 Criminal Law Amendment Act;
45. Case Crime No.399 of 2010, under Sections 302, 307, 120-B, 34 IPC, Section 7 Criminal Law Amendment act and Section 25 Arms Act;
46. Case Crime No.482 of 2010, under Section 3(1) U.P. Gangster Act;
47. Case Crime No.891 of 2010, under U.P. Gangster Act;
48. Case Crime No.20 of 2014, under Section 147, 148, 149, 302, 307, 506, 120-B IPC and Section 7 Criminal Law Amendment Act;
49. Case Crime No.05 of 2019, under Sections 386 and 506 IPC;
50. Case Crime No.04 of 2020, under Sections 419, 420, 467, 468, 471, 120B IPC Section 30 Arms Act;
51. Case Crime No.160 of 2020, under Section 3(1) U.P. Gangster Act;
52. Case Crime No.236 of 2020, under Sections 468, 471, 120-B IPC and Section 3 Sa.Sa.Nu, Adhi;
53. Case Crime No.55 of 2021, under Section 3(1) U.P. Gangster Act;
54. Case Crime No.369 of 2021, under Sections 419, 420, 467, 468, 471, 120-B, 506, 177 IPC and Section 7 Criminal Law Amendment Act;
55. Case Crime No.121 of 2021, under Section 25/26 Arms Act; and
56. Case Crime No.185 of 2021, under Sections 419, 420, 467, 468, 471 and 120-B IPC"
12. On behalf of the accused-petitioner, Mr. Dilip Kumar, learned Senior Advocate, has advanced two submissions in support of the petition; (a) since the accused-petitioner has been acquitted in offence regarding murder of sitting MLA, Late Krishna Nand Rai and six others i.e. in the substantive offence, continuation of the proceedings under the Gangsters Act is an abuse of process of the Court; (b) trial for offence by Special Judge should have got precedence over the trial of any other case against the accused-petitioner, and in the present case trial of the persons should have been conducted first before conducting the trial in substantive offence. As the procedure, as mandated under Section 12 of the Gangsters Act, has not been followed, the impugned proceedings are liable to be quashed.
13. In support of his contentions, the learned Senior Advocate, representing the accused-petitioner, has placed reliance upon the judgment reported in 2013 0 Supreme (SC) 699 (Dharmendra Kirthal Vs. State of U.P. and another).
14. On the other hand, on behalf of the respondent-State, Mr. Mahesh Chandra Chaturvedi, Additional Advocate General, has submitted that this has been a modus operandi of the accused-petitioner, his brother and his gang members to get acquittal in most of heinous offences as the witnesses would turn hostile because of their fear, terror and political power/influence. It has been further submitted that against the acquittal, the appeal has been admitted by the Delhi High Court and the appeal, being continuation of the trial, it cannot be said that the substantive offence does not exit against the accused-petitioner. It has been further submitted that even in the said case, the acquittal was because of witnesses did turn hostile. It has been further submitted that acquittal or conviction is not a criteria for invoking the provisions of Gangsters Act against a person, who is a member of a gang or any member of the gang commits serious and heinous offences as in the present case. It has been further submitted that as the mandate of Section 12 of the Gangsters Act was not complied because trial of substantive offence was transferred by the Supreme Court and trial of present case not transferred. Further, the accused-petitioner never raised such an objection before the learned Special Judge, CBI/MP/MLA, New-Delhi, Merely for this reason, it cannot be said that the proceedings under the Gangsters Act would get vitiated. The learned Additional Advocate General has placed reliance upon judgment of this Court dated 23.09.2022 passed in Government Appeal No.779 of 2021 in support of his submissions.
15. I have considered the submissions advanced by Mr. Dilip Kumar, learned Senior Advocate on behalf of the accused-petitioner as well as Mr. Mahesh Chandra Chaturvedi, Additional Advocate General on behalf of the respondent-State.
16. The purpose, aim and object of the Gangsters Act is to prevent and cope with the gangsters and anti-social activities committed by the gangs in the State of U.P. The Gangsters Act has been enacted to prevent organized crimes in the State by enacting the special provisions. It is a deterrent statute. It would be apt to take note of the definition of gang as provided under Section 2(b) of the Gangsters Act, which would read as under:-
"2 (b) "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely-
(i) offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or
(ii) distilling or manufacturing or .storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 (U.P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or
(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or
(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or
(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956), or
(vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or
(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or
(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or
(ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or
(x) inciting others to resort to violence to disturb communal harmony, or
(xi) creating panic, alarm or terror in public, or
(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or
(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or
(xiv) kidnapping or abducting any person with intent to extort ransom, or
(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;
[(xvi) offences punishable under the Regulation of Money Lending Act, 1976;
(xvii) illegally transporting and/or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960;
(xviii) human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities.
(xix) offences punishable under the Unlawful Activities (Prevention) Act, 1966:
(xx) printing, transporting and circulating of fake Indian currency notes;
(xxi) involving in production, sale and distribution of spurious drugs;
(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention of Sections 5, 7 and 12 of the Arms Act, 1959;
(xxiii) felling or killing for economic gains, smuggling of products in contravention of the Indian Forest Act, 1927 and Wildlife Protection Act, 1972;
(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;
(xvv) indulging in crimes that impact security of State, public order and even tempo of life."
17. This Court in its judgment and order dated 23.09.2022 passed in Government Appeal No.779 of 2021 has considered the definition of the 'gang' and held that if it is proved that an accused belongs to a gang and commits offence(s) individually or with other gang members with object of disturbing public order or for gaining any undue temporal and pecuniary material or other advantage for himself or any other member of the gang, he can be prosecuted and punished under the provisions of the Gagnsters Act. Paragraphs-12 to 17 of the judgment and order dated 23.09.2022 passed passed by this Court in Government Appeal No.779 of 2021 would be relevant to take note of which read as under:-
"12. Thus, if a person belongs to a group of persons, who, either acting singly or collectively, indulges in violence or threat or show of violence and coercion etc., with object to disturb public order or to gain any undue temporal and pecuniary material or other advantage to himself or any other person, indulges in anti-social activities and, commits offence, as defined under the said section, as the group of persons, would be a gang.
13. Gangster has been defined under Section 2(c) Gangsters Act, which reads as under:-
"2(c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities."
14. Gang-leader and member of the gang is called gangsters. Even a person, who abets or assists in the activities of gang, as defined under Section 2(b), whether before or after the commission of such activities, or harbours any person, who has indulged in such activities, would be also a gangster. Section 3(1) Gangsters Act provides for punishment of gangster, which would be two years and may extend to ten years with fine and fine should not be less than Rs.5,000/-. If a gangster commits an offence against public servant or any member of public servant, then the minimum punishment would be of three years and fine.
15. The offence under the Gangsters Act is an independent offence than the substantive offence. If it is proved that a person belongs to a group of persons and commits offence individually or with group of persons, which are defined under Section 2(b) of the Gangsters Act, such a person is a gangster and he would be punished for a term, which may be two or three years and extendable to ten years with minimum fine of rupees five thousand.
16. On behalf of the appellant-State, Mr. Umesh Verma, learned Additional Government Advocate, along with Mr. Rao Narendra Singh, learned Additional Government Advocate, has submitted that the basic ingredients to prosecute an individual under the Gangsters Act for commission of an offence as gangster is him being the member of the gang. Even if no FIR is registered against a person, still he can be prosecuted for the offence under the Gangsters Act. The purpose of the Gangsters Act is to curb organized crime and criminal activities of the gang and gangsters.
17. If it is proved that an accused belongs to a gang and commits offences individually or with other gang members with object of disturbing public order or of gaining any undue temporal and pecuniary material or other advantage for himself or any other member of the gang, he can be prosecuted and punished."
18. This Court in the judgment and order dated 23.09.2022 passed in Government Appeal No.779 of 2021 has dealt with the question that if accused has been acquitted for offence(s) which was/were in the gang-chart (substantive offence), can he be prosecuted and punished for offence under Section 2(3) of the Gangsters Act. This Court dealt with the said question in paragraphs-22 to 27 of the said judgment, which read as under:-
22. The moot question, which arises for consideration in this case, is that if the accused-respondent has been acquitted for offences, which were mentioned in the gang-chart, (substantive offences), can he still be convicted for offence under Section 2/3 Gangsters Act. As stated earlier, the offence under Section 2/3 Gangsters Act is a distinct and separate offence than the substantive offence. If the prosecution proves that the person belongs to a gang and indulges himself in committing offence with object of disturbing public order or of gaining any undue temporal and pecuniary material or other advantage for himself or any other person, he may be punished under the Gangsters Act.
23. A Coordinate Bench of this Court in 2007 (8) ADJ 716 (Vishnu Dayal and others Vs. State of U.P. and another) held that the object of the Act is to arrest the activities of organized criminals and members in their gangs. The Court also observed that gangsterism in the recent times has taken menacing dimensions and lives and liberty of citizens have been pushed against the walls of organized crimes. Paragraphs-11 and 12 of Vishnu Dayal and others Vs. State of U.P. and another case (supra), which are relevant for the purpose of this case, would read as under:-
"11. From the definition clause it is per se clear that a gang is a group of one or more persons who commit the crimes mentioned under the definition clause for the motive of earning undue advantage whether pecuniary, material or otherwise. Even a single crime committed by a gang is sufficient to implant Gangsters Act on such members of gang and repetition of crime is not desired for invoking offences under the said Act. The definition clause, as mentioned above does not engulf plurality of offence before the Gangsters Act is invoked. It is an Act to achieve an avowed object of arresting the activities of organised criminate and members of their gang. Gangsterism in the recent times has taken menacing dimensions and lives and liberty of citizens has been pushed against the walls of organised crimes. This type of offences have to be dealt with sternly and with tenacity. Further the offence under the Gangsters Act can be implanted on a group of persons who act individually or collectively.
12. In the present case the incident was motivated and executed because of grabbing of property of the deceased as the accused persons are very close relatives of deceased and are in fact, his real nephews and wife of his real own brother. These accused persons had an evil eye on the property of the deceased because of which they have committed the murder of their own blood relation. The offence was well chalked out and pre-planned. This certainly is gangsterism. This fact clearly brings out the activity of the applicants within the perview of the Gangsters Act. The contention of Sri Sengar, learned counsel for the applicants, is that this was an individual act and from the F.I.R. it cannot be said that the murder had taken place because of the lust of the property and, therefore, the Gangsters Act is not applicable, does not appeal at all as the said contention is against the facts of the case. I have gone through the judgment of this Court in the case of Ashok Kumar Dixit, (1987 All LJ 806) (supra). The said judgment does not countenance the submissions raised by Sri Sengar, learned counsel for the applicants. From the facts of the case it is perceptibly clear that embedded motive in the minds of the culprits was to grab the property and to gain pecuniary advantage for them. This certainly brings in their case within the purview of the Gangsters Act."
24. In 2008 (2) JIC 227 (All) (Udham Singh & Anr. Vs. State of U.P. & Ors), this Court, while dealing with the question whether on the basis of single incident the provisions of Gangsters Act can be invoked against such a person, this Court held that under Section 2/3 Gangsters Act, if the gang-chart affirms part of the FIR and in the gang-chart it is clearly mentioned that there is a gang, which indulges into commission of offence and on the basis of perusal of the gang-chart the authorities are satisfied for sanctioning registration of the FIR, such person can be prosecuted and punished for the offence. It was again reiterated that the purpose of the Gangsters Act is to control activities of organized gangs and gangsters. When specific offence has been created, it is open to punish a person even for a single act if it is covered by the requirement of law.
25. The Supreme Court also in Geeta Devi Vs. State of U.P. & Ors. (Criminal Appeal No.78 of 2022), while delineating the provisions of Gangsters Act, held that even a person, against whom for single offence, charge-sheet has been filed for any activity, mentioned under Section 2/3 Gangsters Act, he can be prosecuted under the Gangsters Act.
26. Paragraphs 8 and 10 of Udham Singh & Anr. Vs. State of U.P. & Ors case (supra), which are relevant for the purpose of decision of the present case, are extracted herein below:-
"8. Coming to the first contention of the learned counsel for the petitioners that on the basis of a single incident, the petitioners cannot be booked under the Act, we need to observe only this much that vide para 14 of the aforesaid judgment of Subhash (supra), the said contention has already been negated by the Division Bench of this Court on which decision, reliance has been placed by the petitioners themselves. It has been held in the aforesaid decision of Subhash (supra) as follows:--
"The words used in Section 2 are no doubt in plural indicating "indulges in anti social activities" but the sentence does not stop with the words "anti social activities". It goes on with the words "viz" followed by 15 clauses of anti social activities enumerated therein. The plural in "anti social activities" referred to the large number of activities to be brought under the umbrella of this single offence and it would never mean that there must be plurality of actions before a person could be prosecuted or convicted for an offence under the Act. When a specific offence has been created, it is open to be punished even for a single act, if it is covered by the requirements of law. We thus, answered point No. 1 framed by us."
10. There is another aspect of the matter which we would like to discuss. Under the definition clause of the Act u/S. 2(b) and (c), it is not required that the FIR must be registered against the gangster before he is booked under the Act. Sine qua non to prosecute an individual under the Act is commission of an offence as a "gangster". Gang means a group of persons, who acting either signally or collectively, by violence, or threat or show violence or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti social activities. It is not the requirement of law that nobody can be prosecuted under the Act if no FIR is registered against him. It is the activity of an individual which is the determinative factor for bringing him under the mischief of the Act and nothing else. If he acts as a member or leader of a gang he can be booked under the Act irrespective of any previous FIR being registered against him or not. The plain reading of different definition clauses clearly indicates that if the person indulges into the commission of offence enumerated under Section 2(b)(I) to (XV) as a member or leader of a gang for gaining any undue temporal, pecuniary, material or other advantage then he is purviewed within the ambit of the Act and it is not the requirement of law that the FIR for the input offence must be registered before he is booked under the Act. Since the purpose of the Act is to curb the activities of gangster, which are more often than not commit not in any public gaze therefore the provisions of Act have to interpret in a manner which fosters its purpose and the intention of legislature best."
27. It is not in dispute that several FIRs and charge-sheets for offences, which are provided under definition clause of Section 2(b) of the Gangsters Act, were registered against the accused-respondent and the charge-sheets were filed against him, including in the case of murder of Jail Superintendent of District Jail, Lucknow. Acquittal or conviction is immaterial for invoking the provisions of Gangsters Act against a person, who is otherwise a member of the gang and, allegedly commits offences, which are defined under Section 2(b) of the Gangsters Act. If the FIR is registered or the charge-sheet is filed and the person is member of gang, which is defined under Section 2(b) Gangsters Act, it fulfills the ingredients of Section 2 of the Gangsters Act and he can be punished under Section 3 of the Gangsters Act. The trial Court has acquitted the accused-respondent on the ground that the accused-respondent was acquitted in all the offences, which were mentioned in the gang-chart. The gang-chart was approved and the FIR came to be registered against accused-respondent along with others. This Court is of the view, on considering the law laid down by the Supreme Court and this Court, as discussed above, and carefully reading all the provisions of the Gangsters Act, that the accused-respondent was a member of the gang and for his criminal activities several FIRs and charge-sheets came to be registered and submitted against him for offences, which are defined under Section 2/3 Gangsters Act. The acquittal of the accused-respondent for turning the witness hostile or otherwise is not a material aspect."
19. In view of the aforesaid law laid down by this Court, I do not find any substance in the submissions advanced by the learned Senior Advocate on behalf of the accused-petitioner that since the accused-petitioner has been acquitted in substantive offence, the proceedings under the Gangsters Act should be dropped. Section 12 of the Gangsters Act, which has been relied upon on behalf of the accused-petitioner, by the learned Senior Advocate reads as under:-
"12. Trial by Special Courts to have precedence. - The trial under this Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance."
20. The trial in the offence under the Gangsters Act has not been conducted prior to trial for substantive offence as trials of substantive offence and Gangsters Act could not be conducted in the same Court for the reason that the trial of substantive offence was transferred by the Supreme Court to New Delhi, but trial of the offence under the Gangsters Act was not transferred and, therefore, Section 12 of the Gangsters Act would have no applicability in the present case. Further, accused-petitioner never took this plea during the trial of substantive offence by Special Court at New Delhi. I, therefore find no force in the submission of the learned Senior Advocate for the accused-petitioner that the proceedings under the Gangsters Act would get vitiated on this ground. If an accused is found to be the member of the gang and he or any of the members of the gang is or has been committing offene under Chapter XVI or Chapter XVII or Chapter XXII of the IPC, he is likely to be punished under the Gangsters Act.
21. In view of the above discussions, I do not find any merit in the present petition and, therefore, the same is hereby dismissed.
[D.K. SINGH, J.] Order Date :- 06.01.2023 MVS/-