Allahabad High Court
Gabbar Singh Alias Devendra Pratap ... vs State Of U.P. Thru. Addl. Chief Secy. ... on 27 June, 2022
Bench: Ramesh Sinha, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 3676 of 2022 Petitioner :- Gabbar Singh Alias Devendra Pratap Singh Alias Rajesh Singh Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And Others Counsel for Petitioner :- Anu Pratap Singh,Vinod Kumar Singh Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL MISC. WRIT PETITION No. - 3685 of 2022 Petitioner :- Mahendra Singh Alias Abhay Pratap Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And Others Counsel for Petitioner :- Vinod Kumar Singh,Anu Pratap Singh Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 3677 of 2022 Petitioner :- Manish Jaiswal Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And Others Counsel for Petitioner :- Vinod Kumar Singh,Anu Pratap Singh Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Jaspreet Singh,J.
(1) Petitioners of the above-captioned writ petitioners, Gabbar Singh alias Devendra Pratap Singh alias Rajesh Singh, Mahendra Singh alias Abhay Pratap and Manish Jaiswal, seek issuance of a writ in the nature of Certiorari quashing the impugned F.I.R. No. 0125/2022 dated 28.05.2022, under Section 3 (1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Kotwali City, District Bahraich. They are also seeking a writ of mandamus directing the respondent no.1 to conduct High Level Enquiry regarding allegations raised in the instant writ petition with respect to lodging of the impugned F.I.R. by the respondent no.7 in utter violation to the provisions of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 19886 and Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 and further to issue a writ of mandamus against the respondents not to proceed against the petitioners any further in pursuance of the impugned F.I.R.
(2) It has been alleged in the impugned F.I.R. that petitioner Gabbar Singh alias Devendra Pratap Singh alias Rajesh Singh is the leader of gang, whereas petitioners Manish Jaiswal and Manish Mahendra Singh alias Abhay Pratap are the members of the gang. It has been alleged that petitioners are indulged in grabbing the Government land on their names by making fraudulent document on Stamp Paper and also while using muscle powers, they used to grab the land of the weaker person(s) illegally and further they used to steal the stamp papers in order to earn physical and financial gains and basic benefits. The manner of commission of their offence is very serious. It is further alleged in the first information report that there is so much fear and terror in the public mind that any person amongst the public has no courage to testify against them. In such a situation, it is not appropriate to let them roam freely.
(3) A perusal of gang chart (Annexure No.2) shows that petitioner-Gabbar Singh alias Devendra Pratap Singh alias Rajesh Singh is indulged in six criminal cases, i.e., (i) Case Crime No.260 of 2021, under Sections 386, 419, 420, 467, 468, 471, 504, 506 I.P.C. and Section 34 I.P.C., Police Station Kotwali Nagar, District Bahraich, (ii) Case Crime No. 325 of 2021, under Sections 384, 506 I.P.C., Police Station Dargah Sharif, District Bahraich, (iii) Case Crime No. 06 of 2022, under Sections 504, 506 I.P.C., Police Station Dargah Sharif, District Bahraich, (iv) Case Crime No. 323 of 2021, under Sections 342, 323, 364, 506 I.P.C. Police Station Dargah Sharif, Bahraich, (v) Case Crime No. 259 of 2021, under Sections 420, 406, 506 I.P.C. and Section 2/3 of Prevention of Damage to Public Property Act, 1984, Police Station Kotwali Dehat, District Bahraich, (vi) Case Crime No. 357 of 2021, under Section 452, 386, 323, 342, 406, 504, 506, 120B I.P.C., Police Station Kotwali Dehat, District Bahraich. The petitioner-Manish Jaiswal, who is said to be member of the gang, is indulged in two criminal cases i.e. (i) Case Crime No. 260 of 2021, under Sections 386, 419, 420, 46, 468, 471, 504, 506 I.P.C. and Section 34 I.P.C., Police Station Kotwali Nagar, District Bahraich, (ii) Case Crime No. 06 of 2022, under Sections 504, 506 I.P.C., Police Station Dargah Sharif, District Bahraich. The petitioner-Mahendra alias Abhay Pratap Singh is indulged in two criminal cases i.e. (i) Case Crime No. 260 of 2021, under Sections 386, 419, 420, 467, 468, 471, 504, 506 I.P.C. and Section 34 I.P.C., police station Kotwali Nagar, District Bahraich, (ii) Case Crime No. 323 of 2021, under Sections 342, 323, 364, 506 I.P.C., Police Station Dargah Sharif, District Bahraich. All the petitioners are presently in jail.
(4) Heard Shri Anu Pratap Singh, Shri Vinod Kumar Singh, learned Counsel for the petitioners and Shri Umesh Chandra Verma, learned Additional Government Advocate for the State/respondents and perused the material brought on record.
(5) It has been argued by the learned Counsel for the petitioners that the impugned F.I.R. has been lodged against the petitioners on the basis of the gang chart (Annexure No.2) prepared against them. He argued that the gang chart so prepared against the petitioners is in pre-printed format and there is no signature of any competent authority. In support of his submission, learned Counsel for the petitioners has produced certified copy of the gang chart issued by the Court below, which is taken on record. His submission is that the gang chart has been prepared in casual and hasty manner as the age of the petitioner-Manish Jaiswal and petitioner-Mahendra Singh alias Abhay Pratap have been shown as 26 years and 22 years, respectively, in the gang chart, whereas their actual age are 44 years and 28 years, respectively.
(6) Learned Counsel for the petitioners has next argued that a perusal of the gang chart shows that it has been prepared in pursuance to direction of this Court at Allahabad issued in Criminal Writ Petition No. 14332 of 2021 : Devendra Pratap Singh alias Gabbar Singh Vs. State of U.P. and in the light of the direction of the Director General of Police (Legal Cell), Police Headquarters, U.P., Lucknow dated 23.08.2021 and Additional Director General of Police (Criminal) dated 16.07.2021. His submission is that Gabbar Singh alias Devendra Pratap Singh alias Rajesh Singh has not filed Criminal Writ Petition No. 14332 of 2021 before this Court at Allahabad as mentioned in the Gang Chart, which itself shows that the gang chart has been prepared in a hurried manner.
(7) Learned Counsel for the petitioners has further argued that the allegations made in the impugned F.I.R. are false and baseless as till date no such offence or crime has been registered against the petitioners at any police station in any district till date. He further argued that respondent no.7 has filed the gang chart in utter violation of mandatory provisions including Rule 5 and 8 of the Uttar Pradesh Gangster and Anti Social Activities (Prevention) Rules, 2021, hence the impugned F.I.R. is liable to be quashed.
(8) Per contra, learned Additional Government Advocate appearing on behalf of the State, while supporting the impugned F.I.R., has argued that Devendra Pratap Singh alias Gabbar Singh is the leader of the gang, whereas Manish Jaiswal and Mahendra Singh alias Abhay Pratap Singh are the members of the gang. The petitioners, by forming an organized gang, are indulged in preparing forged documents on stamp paper in a fake manner by making government land in their name and also making weak persons hostages on the strength of coercion in order to earn financial, material and worldly benefit for the gang members. The petitioners are also used to steal the stamp paper and fraudulently it has been used to grab the land of the weaker section of the society. This act of the petitioners has created fear and panic among the general public and on account of their fear and terror, no public person dares to file a case against them and testify. He further argued that the petitioners are committing criminal acts in different stations. He argued that the District Magistrate has recommended the gang chart against the petitioners and thereafter, impugned F.I.R. has been registered. His submission is that there is no flaw in preparing the gang chart against the petitioners.
(9) During the course of arguments, learned Additional Government Advocate has produced a certified copy of the Gang Chart and argued that the plea of the petitioners that there was no signature of the competent authorities in the gang chart, is not sustainable as the gang chart annexed as Annexure No.2 to the writ petition by the petitioner appears to be a manipulated/suspicious document. According to him, the gang chart, which has been prepared against the petitioners, has been signed by all the competent authorities. He further argued that the gang chart has been prepared in pursuance of the direction of the Director General of Police (Legal Cell), Police Headquarters, U.P., Lucknow dated 23.08.2021 and Additional Director General of Police (Criminal) dated 16.07.2021.
(10) So far as mentioning of Criminal Writ Petition No. 14332 of 2021 in the gang chart is concerned, learned Additional Government Advocate, on the basis of instructions, has argued that in place of directions issued in Criminal Misc. Bail Application No. 14323 of 2021 vide order dated 19.03.2021, Criminal Writ Petition No. 14332 of 2021 has wrongly been mentioned in the Gang Chart. For this purpose, on the application of the Nodal Officer (Gang Chart) dated 13.06.2022, the Superintendent of Police, Bahraich, vide order dated 13.06.2022, has issued direction to remove the deficiency in the gang chart and the Investigating Officer of the case has also perused the aforesaid order. His submission is that incriminating and clinching evidence are available against the petitioners under Section 3 (1) of the Act, 1986 and the investigation of the case is pending. He further argued that the gang chart has been prepared in accordance with Act, 1986 and Rules, 2021. He also argued that the petitioners are in jail and at this stage, when the investigation of the case is going on, the instant writ petition for quashing the impugned F.I.R. does not arise. Moreso, from a perusal of the impugned F.I.R., cognizable offence is clearly made out against the petitioners, hence the present petition is liable to be dismissed.
(11) Having heard learned Counsel for the parties and gone through the record, this Court deem it apt to reproduce Section 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, which provides as follows :-
"3. Penalty (1) A gangster, shall be punished with imprisonment either description for a term which shall not be less than two years which may extend to ten years and also with fine which shall not be less than five thousand rupees:
Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees."
(12) The definition of ''gangster' is made in the Gangsters Act and includes any person who is a member or leader or organizer of a gang or abets or assists in the activities of a gang, which includes violence, threat, intimidation, coercion with the object of disturbing public order or of going any undue advantage for himself or any other person.
(13) It transpires from the impugned FIR that the petitioners have created terror and threatening the common people and indulged in grabbing the Government land in their names by making fraudulent documents on stamp paper and also stolen the stamp paper in order to gain financial benefit to the members of the gang. The FIR contains a list of various cases against the petitioners pending at the material time when the FIR was lodged and they included offences under the relevant provisions of the I.P.C. including Section 386 (Extortion by putting a person in fear of death or grievous hurt), 323 (voluntarily causing hurt), Section 506 (criminal intimedation) Section 504 (provoking breach of peace), 34 (Acts done by several persons in furtherance of common intention), 420 (cheating and dishonesty inducing delivery of property), 467 (forgery of valuable security, will etc.), 468 (forgery for purpose of cheating), 471 (using as genuine a forged document or electronic record) and Section 2/3 of the Prevention of Damage to Public Property Act, 1984. It cannot therefore, be said that the allegations in the FIR did not disclose any act warranting penalization under the Gangsters Act.
(14) It is a settled law that in proceedings under Article 226 of the Constitution of India, this Court does not adjudicate the correctness of the allegations in an FIR. The Court may only intervene in exceptional cases, if the allegations made in the FIR ex facie do not disclose any offence at all.
(15) So far as the plea raised by the petitioners that the gang chart has been prepared in a hurried manner as there was no signature of the competent authorities on the gang chart is concerned, learned AGA has produced certified copy of the gang chart along with questionnaire issued by the Court below, which is taken on record. It transpires from the gang chart produced by the learned AGA that there is signature of the competent authorities and the gang chart has been prepared. Learned AGA has further argued that there is signature of the competent authorities in the gang chart and the gang chart has been prepared after recommendation of the District Magistrate. Thus, this plea of the petitioners has no substance and it is for the Court below to examine its record and proceed accordingly in accordance with law as this issue cannot be examined in the present writ petition. Moreover, the impugned F.I.R. cannot be quashed on this count.
(16) It transpires that the entire matter is being assailed only at a premature stage on hyper technical issues. The learned Counsel for the petitioners could not dispute the fact that there is no criminal case pending against the petitioners as it is admitted to the petition that they are presently in jail in criminal cases registered against them. The evidence has to be gathered after a thorough investigation and placed before the Court concerned on the basis of which alone the Court concerned can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, the investigation will say so. At this stage, when there is only allegations and recriminations but on evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that the impugned F.I.R. should be thrown overboard on the mere unsubstantiated plea of mala fides.
(17) In the case of Mosiruddin Munshi Vs. Md. Siraj reported in AIR 2014 SC 3352, the Apex Court has held as under :
"5. The legal position with regard to exercise of jurisdiction by the High Court for quashing the First Information Report is now well settled. It is not necessary for us to delve deep there into as the propositions of law have been stated by this Court in R. Kalyani Vs. Janak C. Mehta (2009) 1 SCC 516 in the following terms :
"15. Propositions of law which emerge from the said decisions are :
1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
6. Yet again in Mahesh Chaudhary Vs. State of Rajasthan (2009) 4 SCC 443) this Court stated the law thus :
"11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence."
7. In the present case the complaint does make averments so as to infer fraudulent or dishonest inducement having been made by Respondent No.1 herein and accused No.2 pursuant to which the appellant parted with money. It is the case of the appellant that Respondent No.2 does not have title over the property since the settlement deed was not a registered one and Respondent No.1 herein and accused No.2 had entered into criminal conspiracy and they fraudulently induced the appellant to deliver a sum of Rs.5,00,001/- with no intention to complete the sale deal. The averments in the complaint would prima facie make out a case for investigation by the authority.
8. In the decisions relied on by the learned counsel for the respondent No.1, cited supra, this Court on the facts therein held that the allegations in the complaint read as a whole prima facie did not disclose commission of offences alleged and quashed the criminal proceedings. Those decisions do not apply to the fact situation of the present case.
9. The High Court has adopted a strictly hypertechnical approach and such an endeavour may be justified during a trial, but certainly not during the stage of investigation. At any rate it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a civil transaction wherein no semblance of criminal offence is involved.
10. The appellant, is therefore right in contending that the First Information Report should not have been quashed in this case and the investigation should have been allowed to proceed."
(18) The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others : 2021 SCC Online SC 315, has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an FIR/complaint, quashing of which is sought, the court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the FIR/complaint. The power under Section 482 Cr. P. C. is very wide, but conferment of wide power requires the court to be cautious. The Supreme Court has emphasised that though the court has the power to quash the FIR in suitable cases, the court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider the case on merit.
(19) Recently, in the case of Shraddha Gupta Vs. the State of Uttar Pradesh and Others (Criminal Appeal Nos. 569-570 of 2022, decided 26.04.2022), the Apex Court has held as under :-
"9. Now so far as the main submission on behalf of the accused that for a single offence/FIR/charge sheet with respect to any of the antisocial activities, such an accused cannot be prosecuted under the Gangsters Act, 1986 is concerned, on a fair reading of the definitions of ''Gang' and ''Gangster' under the Gangsters Act, 1986, it can be seen that a ''Gang' is a group of one or more persons who commit/s the crimes mentioned in 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 16 such members of the ''Gang'. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.
A group of persons may act collectively or anyone of the members of the group may also act singly, with the object of disturbing public order indulging in anti-social activities mentioned in Section 2(b) of the Gangsters Act, who can be termed as ''Gangster'. A member of a ''Gang' acting either singly or collectively may be termed as a member of the ''Gang' and comes within the definition of ''Gang', provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.
10. On a fair reading of the definitions of ''Gang' contained in Section 2(b) and ''Gangster' contained in Section 2(c) of the Gangsters Act, a ''Gangster' means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ''Gang' and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, 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 and he/she can be termed as ''Gangster' within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act. Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is 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.
11. In the present case, it is alleged that the main accused P.C. Sharma was a gang leader and who was the mastermind and he hatched the criminal conspiracy along with other co-accused including the appellant herein to commit the murder of the deceased Sadhna Sharma for a pecuniary benefit as there was a property dispute going on since long between the family members. It is also to be noted that the other co-accused were already charge sheeted/prosecuted for the offence under the Gangsters Act and therefore the appellant and the other two co-accused being members of the ''Gang' were also required to be prosecuted for the offences under the Gangsters Act also like other co-accused. Therefore, in the facts and circumstances of the case, it cannot be said that no prosecution could have been initiated against the appellant-accused for the offences under Sections 2/3 of the Gangsters Act, 1986.
12. In view of the above discussion and for the reasons stated above, the High Court has rightly refused to quash the criminal proceedings against the appellant-accused under Sections 2/3 of the Gangsters Act, 1986, in exercise of powers under Section 482 Cr.P.C. We are in complete agreement with the view taken by the High Court. Under the 19 circumstances, the present appeals fail and the same deserve to be dismissed and are accordingly dismissed."
(20) In view of the aforesaid, considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie case is made out against the petitioners, rather there appears to be sufficient ground for investigation in the matter.
Accordingly, this Court do not find any justification to quash the impugned F.I.R. or for staying the arrest.
(21) All the above-captioned writ petitions lack substance and are, accordingly, dismissed.
(Jaspreet Singh, J.) (Ramesh Sinha, J.)
Order Date :- 27.6.2022
Rakesh/Ajit/-