Allahabad High Court
Raju Pathak vs State Of U.P. And 2 Others on 31 July, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:152901-DB A.F.R. Reserved In Chamber Case :- CRIMINAL MISC. WRIT PETITION No. - 7741 of 2023 Petitioner :- Raju Pathak Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shamasul Eslam Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Learned counsel for the petitioner has filed a copy of order dated 13.04.2023 passed by a coordinate Bench of this Court in Criminal Misc. Writ Petition No. 4451 of 2023, Vishal (minor) Vs. State of U.P. and 3 Others, in the Court which is taken on record.
2. Heard Sri Shamasul Eslam, learned counsel for the petitioner and Sri Ratan Singh, learned A.G.A. appearing for the State-respondents.
3. The present writ petition has been filed under Article 226 of the Constitution of India with the prayer to quash the impugned first information report dated 24.11.2022 registered as Case Crime No. 203 of 2022 under Section 3(1) of U.P. Gangsters & Anti-Social Activities (Prevention) Act, 1986 (hereinafter mentioned as 'U.P. Gangsters Act'), Police Station- Haldi, District- Ballia.
4. It is submitted by learned counsel for the petitioner that the first information report has been lodged against the petitioner, Raju Pathak and two other persons, namely, Aakash Giri and Yogesh Tiwari alias Rahul Tiwari, alleging therein that co-accused, Aakash Giri runs a gang and the petitioner is the member of the said gang and they committed offence against the society. Certified copy of the impugned first information report has been attached as Annexure No. 1 to the affidavit accompanying the writ petition. As per the gang chart, following three cases have been shown against the petitioner :-
(i) Case Crime No. 107 of 2022 u/s 380, 411, 457 I.P.C., P.S.- Dokati, District- Ballia;
(ii) Case Crime No. 179 of 2022 u/s 379, 411, 414/34 I.P.C., P.S.- Haldi, District- Ballia;
(iii) Case Crime No. 183 of 2022 u/s 4/25 of Arms Act, P.S.- Haldi, District- Ballia.
A true copy of the gang chart has been attached as Annexure No. 2 to the affidavit accompanying the writ petition.
5. It has been next submitted by learned counsel for the petitioner that the petitioner has been falsely implicated in the criminal cases shown in the gang chart. The petitioner has been released on bail by the court concerned in (i) Case Crime No. 107 of 2022 u/s 380, 411, 457 I.P.C., P.S.- Dokati, District- Ballia vide order dated 09.11.2022, (ii) Case Crime No. 179 of 2022 u/s 379, 411, 414/34 I.P.C., P.S.- Haldi, District- Ballia vide order dated 28.02.2023 and (iii) Case Crime No. 183 of 2022 u/s 4/25 of Arms Act, P.S.- Haldi, District- Ballia vide order dated 10.11.2022. Copies of the aforesaid orders have been attached as Annexure No. 3 to the affidavit accompanying the writ petition.
6. It has also been submitted by learned counsel for the petitioner that at the time of implication in the case crime numbers shown in the gang chart, the petitioner was minor. The Juvenile Justice Board, Ballia has declared the minor as juvenile vide order dated 13.01.2023 passed in Criminal Misc. Case No. 112 of 2022, State Vs. Raju Pathak, relating to Case Crime No. 179 of 2022 u/s 392, 411, 414, 34 I.P.C., Police Station- Haldi, District- Ballia. Copy of the aforesaid order has been attached as Annexure No. 4 to the affidavit accompanying the writ petition.
7. It has also been submitted by learned counsel for the petitioner that the petitioner has been released on bail vide order dated 27.03.2023 passed in Case Crime No. 203 of 2022 u/s 3(1) of U.P. Gangsters Act, Police Station- Haldi, District- Ballia, which is related to the impugned first information report. Copy of the aforesaid bail order has been attached as Annexure No. 5 to the affidavit accompanying the writ petition.
8. It has been further submitted by learned counsel for the petitioner that since at the time of commission of offences mentioned in the gang chart, the petitioner was a minor and the informant has falsely lodged the first information report relating to Case Crime No. 203 of 2022 against the petitioner. It has also been submitted that the District Magistrate has approved the gang chart in a mechanical manner without examining material on record and without recording his subjective satisfaction. Thus, the impugned first information report dated 24.11.2022 is illegal and is liable to be quashed.
9. Per contra, learned A.G.A. for the State has opposed the writ petition and submitted that the impugned first information report was registered against the petitioner after following the procedure prescribed in U.P. Gangsters Act and rules framed therein. He has also submitted that there is no legal bar for registering criminal cases under U.P. Gangsters Act, against the accused on the basis of criminal cases mentioned in the gang chart which was committed by him as a juvenile.
10. The word "gang" and "gangster" mentioned in U.P. Gangsters Act, has been defined u/s 2 (b) and 2 (c) respectively which are as follows :
(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 of 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, 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 or the Narcotic Drugs and Psychotropic Substances Act, 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, or
(vi) offences punishable under Section 3 of the Public Gambling Act, 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, 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 The 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,
(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;
11. The provision relating to applicability of U.P. Gangsters Act to minors is mentioned in Rule 27 of U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021 which reads as follows :
"27. Act not applicable to minor generally - If the accused are minors, and their age is less than 18 years, then they should not be included in the gang-chart :
Provided that if the act of a juvenile falls under the category of offences mentioned in rule 22 and his age is more than 16 years, then action can be taken against him under the relevant provisions of the Act, subject to the decision of the District Level Supervision Committee mentioned in Rule 64."
12. Rule 22 of U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021 which is also relevant reads as follows :
"22. Criminal history not mandatory and sections of the Act can be imposed in the course of investigation - (1) A single act/omission will also constitute an offence under the Act, and First Information Report may be registered on the basis of a single case i.e., it is not mandatory that any criminal history must be recorded and alleged before registering an offence under the Act.
(2) The Act may also come into force on a single prosecution in certain class of cases, such as -
if it appears that the gang has committed a single offence mentioned in Sections 302, 376D, 395, 396 or 397 of the Penal Code out of the offences mentioned in sub-clause (I) of clause (b) of Section 2 of the Act or sub-clauses (ii), (iii), (v), (vii), (x), (xii), (xiv), (xv), (xvii), (xviii), (xix), (xx) or (xxi) of clause (b) of Section 2 of the Act, which is presently under investigation, and the offence under this Act is being proved by collected evidence, then along with the criminal act under consideration, the gang-chart should also be approved by the concerned Commissioner of Police/District Magistrate involved in the investigation of the said offence and the provisions of the Act can be imposed while investigating both the offences together in accordance with the provisions of the Act. Further, the charge-sheet can be sent to the Special Court constituted under the Act."
13. From perusal of Rule 27 and 22 of U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021, it is clear that the proceedings u/s 3(1) of U.P. Gangsters Act can be taken against the gangster after he has committed any of the offences mentioned in Rule 22 and his age is more than 16 years. From the order of Juvenile Justice Board, Ballia dated 13.01.2023 which is attached as Annexure No. 4 to the affidavit accompanying the writ petition, it is clear that the Board has determined the date of birth of the petitioner, Raju Pathak as 18.10.2004. The age of the applicant on the date of committing offence mentioned in the gang-chart was more than 17 years 8 months. Thus, on the date of registration of first information report u/s 3(1) of U.P. Gangsters Act i.e. 24.11.2022, the petitioner's age was 18 years 1 month and 6 days and he was major.
14. As regarding the registration of first information report dated 27.06.2022 mentioned in the gang chart in Case Crime No. 107 of 2022 u/s 380, 411, 457 I.P.C., it transpires that the age of the petitioner was 17 years 8 months and 9 days. On 26.09.2022, when the first information report in Case Crime No. 179 of 2022 u/s 379, 411, 414/34 I.P.C. was registered, the petitioner's age was 17 years 11 months and 8 days. As regarding the third Case Crime No. 183 of 2022 u/s 4/25 of Arms Act shown in the gang chart, the age of the petitioner need not be ascertained as U.P. Gangsters Act cannot be imposed on the basis of filing of charge-sheet u/s 4/25 of Arms act against a person.
15. From the above discussion, it is clear that on the date of registration of first information report relating to the case crime numbers mentioned in the gang chart although the petitioner was minor but his age was more than 16 years. The Case Crime No. 107 of 2022 u/s 380, 411, 457 I.P.C. and Case Crime No. 179 of 2022 u/s 379, 411, 414/34 I.P.C. is mentioned in Chapter XVII of the Indian Penal Code. According to Rule 22 of the U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021, Case Crime No. 203 of 2022 under Section 3(1) of U.P. Gangsters Act was imposed on the basis of a single case committed by him which is mentioned in Chapter XVII of the Indian Penal Code. Thus, registration of criminal case u/s 3(1) of U.P. Gangsters Act against the petitioner, Raju Pathak, is not prohibited by the provisions of Rule 27 and 22 of U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021. Thus, the plea raised by the petitioner that U.P. Gangsters Act cannot be imposed against the minor, is not tenable and is liable to be rejected.
16. Rule 16 of U.P. Gangsters & Anti-Social Activities (Prevention) Rules, 2021, provides the manner of the recommendation to be made while forwarding the gang chart. It also provides formalities required for approval of gang chart by the competent authority which may be Commissioner of Police or District Magistrate depending whether Commissionerate of Police has been constituted or not constituted in the district. Clause 3 of Rule 16 is as follows :-
(3) Resolution of Commissioner of Police/District Magistrate : When the gang chart is sent to the Commissioner of Police/District Magistrate along with all the Forms, all the facts will also be thoroughly perused by the Commissioner of Police/District Magistrate and when he is satisfied that the basis of action exists in the case, then he will approve the gang chart stating therein that "I duly perused the gang chart and attached Forms in the light of the evidence attached with the gang chart, satisfactory grounds exist for taking action under the Uttar Pradesh Gangsters & Anti-Social Activities (Prevention) Act, 1986. The gang chart is approved accordingly."
It is noteworthy that the words written above are only illustrative. There is no compulsion to write the same verbatim but it is necessary that the meaning of approval should be the same as the recommendations written above, and it should also be clear from the note of approval marked.
17. Vide order dated 06.12.2022 passed in Criminal Misc. Writ Petition No. 16983 of 2022, Ambuj Parag Dubey And 2 Others Vs. State Of U.P. And 2 Others, the Division Bench of this Court has explained the requirements of satisfaction of the competent authority in paragraph nos. 32, 33 and 36 of its judgement which is as follows :
32. Satisfaction of the competent authority only means that the competent authority must be in fact satisfy and not a dishonest satisfaction, which will be no satisfaction at all. The satisfaction contemplated by the Gangster Rule is satisfaction in point of fact on the materials placed before the competent authority. The satisfaction of the competent authority referred to under the Rule is not with respect to the allegations levelled against the gangster but the satisfaction is confined to those allegations that the accused can be prosecuted under the Gangster Act. Whatever may be the nature of charge against the accused, the satisfaction of the competent authority should be with regard to that the materials placed before him and the nature of the accused indulging in community antisocial activities. It is expedient to sanction prosecution under the Gangster Act.
33. The expression satisfied is much narrower than ''application of mind'. The competent authority is not to apply his mind and satisfy himself as to whether the material placed before him would be sufficient for convicting the accused under the Gangster Act. The satisfaction is confined within a narrow domain based on the materials placed before the competent authority, the authorities forwarding the gang chart is satisfied that the accused should be prosecuted under the Gangster Act. The expression satisfaction is not satisfaction on evidence but a prima facie satisfaction based on the representations of the nodal authority and the district police that the accused should be prosecuted under the Gangster Act.
36. Rule 17 and 18 would have to be read together. Gang chart has to be sent in the prescribed Form No. 1. The endorsement to be made by each of the authorities have also been specified in Rule 16. The rule itself prescribes and mandates a printed Form. Rule 17 merely mandates that the competent authority while approving the gang chart should not be swayed by the recommendation of the police authorities mechanically but should satisfy himself independently that the grounds for prosecution is made out. The satisfaction at that stage is subjective and does not rest upon any evidence. The competent authority has to satisfy that the materials placed with the gang chart calls for prosecution. The stage of collecting evidence follows thereafter. The scope of judicial review is miniscule, the accused cannot challenge the FIR without challenging the gang chart. The question as to whether the antisocial activities of the proposed accused is that of a gang or gangster is a matter of investigation.
18. The gang chart which is as Annexure No. 2 to the affidavit, is incomplete as it provides only the base criminal cases on the basis of which case under U.P. Gangsters Act was registered against the petitioner and two co-accused. It does not consists of the page relating to approval thereof by the District Magistrate. Thus, the petitioner has withheld necessary information required for ascertaining satisfaction of District Magistrate in granting approval. Thus, petitioner has not come to the Court with clean hands. Considering the law propounded by this Court in Ambuj Parag Dubey (supra), there is no substance in the plea advanced by learned counsel for the petitioner that there is no material to show subjective satisfaction of the D.M. in approving imposition of U.P. Gangsters Act against the petitioner and that the District Magistrate has not applied his mind on the material produced before sanctioning the registration of case under U.P. Gangsters Act against the petitioner.
19. In Criminal Misc. Writ Petition No. 2683 of 2023, Virendra Kasaudhan Vs. State of U.P. and 3 Others, decided on 19.04.2023, this Court has reiterated the law regarding satisfaction of competent authority propounded by coordinate Bench of this Court in Ambuj Parag Dubey (supra).
20. From the aforesaid discussion, it is our considered view that the first information report under Section 3(1) of U.P. Gangsters Act against the petitioner has been registered as per the provisions of law. There is no ground to quash u/s 482 Cr.P.C. the impugned first information report dated 24.11.2022 registered as Case Crime No. 203 of 2022 under Section 3(1) of U.P. Gangsters Act, Police Station- Haldi, District- Ballia.
21. The writ petition is accordingly, dismissed.
Order Date :- 31.07.2023 KS