Allahabad High Court
Mohd. Muslim vs State Of U.P. And Another on 3 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2023:AHC:155720 Court No. - 91 Case :- APPLICATION U/S 482 No. - 9360 of 2009 Applicant :- Mohd. Muslim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Imran Ullah Counsel for Opposite Party :- Govt. Advocate Hon'ble Gajendra Kumar,J.
1. Heard Sri Vineet Vikram, learned counsel for the applicant and learned AGA for the State-respondents.
2. The instant Application U/S 482 Cr.P.C. has been filed on behalf of the applicants for quashing the entire proceedings pending in the court of learned Special Judge (Gangster Act), Allahabad in Case No.97/08, under Sections 147, 148, 323, 504, 506, 420, 406 IPC and Section 2/3 of Gangster Act.
3. The facts of the case in brief are as follows:
FIR of this case has been lodged by opposite party no.2 (Mohd. Arif) against the applicant and other co-accused persons on 16.06.2007 at 08:10 p.m., in case crime no.113/07 under Sections 147, 148, 323, 504, 506, 406, 420, 34 IPC and Section 7 of Criminal Law Amendment Act, Police Station-Kareli, District-Allahabad. The allegation against the applicant and other accused persons is that they have formed a society and were doing plotting work by the name of Alina City and were taking plots for the purpose of sale and they were involved in taking advance money. It is also alleged that first informant also made contact with the society in its office. He was informed that the land in the name of the society and its lay out has been passed and all the documents are perfect. He took plot having area of 200 sq. yard at Rs.1000/- per sq. yard. It's total cost was Rs.2 lakhs. The first informant was assured that after deposit of the total amount of Rs.2 lakhs, its sale deed shall be executed in favour of the first informant. As the first informant was not having the total amount of Rs.2 lakhs, it was settled that the amount shall be paid in three installments. Thereafter, he deposited the total amount of Rs.75,000/- within six months prior lodging the FIR. No receipt of payment was given and after some time, the first informant knew that the alleged land was belonging to the Scheduled Caste person and no permission of sale was obtained from the District Magistrate, but after intimidation, the land was acquired by the applicant and other co-accused persons. It's lay out was also not passed by the Competent Authority. Thereafter, first informant changed his idea in purchasing the land and demanded the money but the same was not returned and he was extended threat for dire consequences.
4. It is submitted by the learned counsel for the applicant that complainant had lodged the FIR due to pressure of police and after registration of FIR, he had given an application to the I.G. Zone, Allahabad on 12.06.2007 (Annexure-9), in which he had prayed to expunge the FIR lodged by him on 10.06.2007.
5. It is further contended by the learned counsel for the applicant that when no action was taken on the aforesaid application, the complainant filed a petition under Article 226 of the Constitution of India bearing Criminal Misc. Writ Petition No.8187 of 2007 before this Court for quashing the impugned FIR registered as case crime No.113 of 2007, under Sections 147, 148, 323, 504, 506, 420/34, 406 IPC and 7 Criminal Law Amendment Act. with the grounds as follow-
"I) Because, the petitioner is the first informant of the First Information Report in question and he himself disowns the allegations made therein.
ii) Because, the First Information Report is a bundle of concoction and preposterous allegations and the petitioner never intended to lodge any report against the accused arrayed in the First Information Report. Iii) Because, the petitioner do no want to be used as an instrument in the hands of police for the harassment of innocent persons to appease the person in chair.
iv) Because the written report, which is the basis of the First Information Report was extorted from the petitioner under threat and coercion and he did not willfully submitted the same to the police to register a case thereon.
v) Because, the impugned First Information Report is clear cut case of gross abuse of process of law and is liable to be quashed with awarding heavy costs."
6. It is further contended that the arrest of the applicant was stayed vide order dated 16.07.2007 by a Division Bench of this Court in Criminal Misc. Writ Petition No.7933 of 2007. It is further submitted that amount in question has already been paid by the main accused (Abrar Ahmad) to the complainant and on that basis, he (Abrar Ahmad) was granted bail by this Court vide order dated 04.10.2007 in Criminal Misc. Bail Application No.7933 of 2007. It is further submitted that applicant has no concern with the alleged society and he has been falsely implicated in this case, which is mentioned in the Gang-chart (Annexure-5) at Sl. No.5 bearing case crime No.113 of 2007, under Sections 147, 148, 323, 504, 506, 406 420, 34 IPC and Section 7 of Criminal Law Amendment Act and Section 2/3 of U.P. Gangster and Anti-social Activities (Prevention) Act, Police Station-Kareli, District-Allahabad. The same is reproduced here-in-under respectively:-
GANG-CHART आपराधिक इतिहास अच्छे S/o मो० मिया R/o 95B/ 5 चकिया P.S.खुल्दावाद रफत उल्ला S/o रहमत उल्ला R/o 79 चकिया P.s खुल्दावाद मो० इमराम S/o मो० जर्हा R/o 207 चकिया P.s खुल्दा.
शेख अकरार अहमद S/o स्व० फरीद अहमद R/o 114 मालवीय नगर P.s मुट्ठीगंज मो० मुस्लिम S/o मो० मिया R/o चकिया P.sखुल्दाबाद हमजा उस्मान S/oउस्मान R/o 106 मेंहदौरी P.sशिवकुटी 113/07 U/s 147,148,323,504,506,406,420,34 IPC व 7 क्रि०ला० ए.एक्ट P.S.करेली ✓ ✓ ✓ ✓ ✓ ✓ 53/01U/s 307 IPC P.S.कैंट ✓ ✓ 91/01 U/s 147,148,149,386,504,506,384,448,427,482,352,34 IPC व 7क्रि०ला० ए.ऐक्ट P.s धूमनगंज ✓ ✓ 27/01 U/s 147,148,149,352,386,504,506,323,365 IPC व 3(1) Sc/ST Act न 2/3 गैगेस्टर एक्ट शाहगंज ✓ ✓ 89/01 U/s 395,397,448,387, IPC व 7 क्रि.ला. एक्ट 2/3 गैंगस्टर P.S.सिविल लाइन ✓ ✓ 253/02 U/s 147,148,149,452,330,304,506 IPC व 2/3 गै० एक्ट P.S.धूमनगंज इला० ✓ ✓ 311/02 U/s 467,468,471,420,506,384,387 IPC व 2/3 गै. एक्ट P.s धूमनगंज इला० ✓ ✓ 110/01 U/s 307 IPC P.S.शिवकुटी ✓ NCR No. 1/01 U/s 323,504 IPC P.S.शिवकुटी ✓
6. It is submitted that I.O. has submitted chargesheet against the five accused persons having added offence of Section 2/3 of Gangster Act. It is apparent that without forwarding/ recommending/approval of the gang-chart from the authorities concerned, the chargesheet under the aforesaid section was submitted. The summary appended to the charge-sheet is as follows:-
Sir, case above was registered and investigated so far; place of occurrence was inspected; witnesses acquainted with the circumstances of the case were examined; statement of the plaintiff was also recorded; having observed all the documentary evidence against the accused persons as shown in the coloumn No.3, Mohd. Imran and others, prima facie case under Sections 147, 148, 323, 504, 506, 420, 447 IPC and Section 2/3 of Gangster Act is proved. Accused as shown in coloumn No.2, Hamza Usman is absconding and against the other five accused chargesheet have been submitted and against the absconding accused, namely, Hamza Usman, chargesheet will be submitted after his arrest and prayed for summoning the witnesses/evidence. It is also submitted that in chargesheet, there is no violation of provisions of the Gangster Act disclosed.
7. It is submitted by the learned counsel appearing for the applicants, that even if all allegations in the impugned FIR and charge-sheet are regarded as true, no case under Sections 3(1) of the Act of 1986 is made out against the applicants. In order to support the aforesaid submission, learned counsel has referred to the provisions of the gangster Act of 1986. He submits that there are two essential ingredients to constitute a gang. The two essential ingredients, according to learned counsel for the applicants, are 'violence' or 'disturbance of public order' indulged in by a group of persons, acting either singly or collectively, for the purpose of pecuniary gain etc.
8. It is the learned counsel for the applicants' submission that none of the offences charged against the applicant, either involves violence or the disturbance of public order. Therefore, even if there be allegations about pecuniary gain, the consequences under the Act of 1986 would not be attracted. He next submits that there are three base cases registered against the applicant no.1 and there is only one base case registered against the applicant nos.2 to 5, on the foot of which the present prosecution has been launched under Section 3(1) of the Act of 1986. But, in each of those crimes, the applicants have already been enlarged on bail by the court concerned. Therefore, in the submission of the learned counsel, the base cases are not available to provide foundation to the prosecution to pursue the present case under the Act of 1986. It is in the last submitted by the learned counsel for the applicant that there is violation of Rule No. 5, 7, 13, 16 and 17 of The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021, vitiating the gang-chart. He has emphasized that non-adherence to these rules has vitiated the basis of registration of the crime and a fortiori the police report and the prosecution. He has emphatically submitted that violation of the aforesaid rule is not mere omission but it shows that the proceedings before registering FIR has been carried out mechanically without giving heed to the provisions of law and rules, which are of fundamental importance as any false and malacious prosecution entails serious consequances resulting into the deprivation of life and personal liberty of the accused person, which cannot be deprived except for the procedure established by law as is enshrined in the Article 21 of the Constitution of India. The forwarding, recommending and approving authorities have not paid any heed or attention to relevant law and rules, while exercising their authority with regard to the preparation and approval of the gang-chart. The whole exercise on their part has been carried out without application of mind.
9. In response to the notice issued to respondents, a counter affidavit was filed which is duly sworn by Prakash Singh Yadav, presently posted as Sub-Inspector, Police Station-Kareli, District-Allahabad, in which all the allegations and averments made in the affidavit filed in support of the application under section 482 cr.p.c. have been totally denied and it is asserted that after thoroughly investigation, charge-sheet was submitted and applicant has formed a gang and is indulged in comitting crime to grab the property of the innocent persons.
10. In response to the counter affidavit filed by the opposite parties, rejoinder affidavit was filed in which, the allegations and averments made in the counter affidavit were denied.
11. On the other hand, learned AGA vehemently opposed the aforesaid contentions and submits that applicant is a members of the gang, which is involved in committing the anti-social activities and crimes for pecuniar and temporal gains.
12. Upon hearing learned Counsel for the parties, this Court is of opinion that in order to consider the submissions of learned counsel for the applicant as well as learned counsel for the State, it is imperative to refer to the relevant provoisions of the Act of 1986, which reads as follows:
As the Act being a special statute- The Act is a special statute which has been enacted for the prevention of and for coping with gangsterism and anti-social activities. The Object and reasons as well as preamble are quoted hereinbelow:-
Objects and reasons of the Act:-
Gangsterism and anti-social activities influenced the State Legislature in making introduction of such Act. The objects and reasons of the Act are that gangsterism and anti-social activities were on the increase in the state posing threat to lives and properties of the citizens. The existing measures were not found effective enough to cope with new menace. With a view to break the gangs by punishing the gangsters and to nip their conspirational designs, it was considered necessary to make special provision for the prevention of and for coping with gangsters and anti-social activities in the State. [Ashok Kumar Dixit v. State of U.P., 1987 (34) ACC 164: 1987 ACFR 230 AIR 1987 (All) 235 (All HC, FB)].
Preamble of Act.-The Act seeks to punish declared criminals who have deliberately chosen the life of crime. The activities of these professional perpetrators of organised crimes, violence and orgy has a far more baneful effect on the health and morals of the society and its people. If the activities of such recidivist are subjected to same punishment as that other ordinary criminals, the confidence of public in the efficacy and efficiency of State Administration is bound to shake. [Ashok Kumar Dixit v. State of U.P., 1987 (34) ACC 164: 1987 ACTR 230: AIR 1987 (All) 235 (All HC, FB)].
13. It is important to refer to the relevant provisions of the Act of 1986, which reads as follows:-
"2. Definitions.--In this Act,--
(a) x x x
(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 (Act no. 2 of 1974), 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 or any other law for the time being in force, or
(iii) occupying or talking 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 (Act no. 61 of 1985)
(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 Art, 1956, or
(vi) offences punishable under section 3 of the Public Gambling Act, 1867 (Act no. 104 of 1956), 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 right 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 Wildlife Protection Act, 1972;
(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;
(xxv) 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;
14. A perusal of the aforesaid provisions shows that violence or disturbance of public order alone are not the sine qua non of a gang as defined under the Act of 1986. It postulates a group of persons, who either acting singly or collectively, employ violence, or threat or show of violence, or intimidation, or coercion, ''or otherwise' with the object of (i) disturbing public order; (ii) or of gaining any undue temporal, pecuniary, material; or other advantage for himself or any other person, indulge in anti-social activities, enumerated in clauses (i) to (xxii) of sub-Section (b) of Section 2 of the Act of 1986.
15. It is a well settled cannon of statutory interpretation that a statute should be read and understood according to its plain grammatical meaning, unless that construction leads to an absurd result, or defeats the object and the very purpose of it.
16. Learned counsel for the applicants has also drawn attention towards the mandatory compliance with the provisions of Rule 5, 13, 16 and 17 of the Rules of 2021 framed under the Act of 1986. These Rules have been made by the State Government in exercise of powers under Section 23 of the Act of 1986 to carry out its purposes. Rules 5, 13, 16 and 17 are extracted below:
"5. General Rules.--(1) To initiate proceedings under this Act, the concerned In-charge of Police Station/Station House Officer/Inspector shall prepare a gang chart mentioning the details of criminal activities of the gang. (2) The gang-chart will be presented to the district head of police after clear recommendation of the Additional Superintendent of Police mentioning the detailed activities in relation to all the persons of the said gang. (3) The following provisions shall be complied with in respect of gang-charts--
(a). The gang-chart will not be approved summarily but after due discussion in a joint meeting of the Commissioner of Police/District Magistrate/Senior Superintendent of Police/Superintendent of Police.
(b). There may be no gang of one person but there may be a gang of known and other unknown persons and in that form the gang-chart may be approved as per these rules.
(c). The gang-chart shall not mention those cases in which acquittal has been granted by the Special Court or in which the final report has been filed after the investigation. However, the gang-chart shall not be approved without the completion of investigation of the base case.
(d). Those cases shall not be mentioned in the gang-chart, on the basis of which action has already been taken once under this Act.
(e). A separate list of criminal history, as given in Form No.--4, shall be attached with the gang-chart detailing all the criminal activities of that gang and mentioning all the criminal cases, even if acquittal has been granted in those cases or even where final report has been submitted in the absence of evidence.
Along with the above, a certified copy of the gang register kept at the police station shall also be attached with the gang-chart. In addition to the above, the information of crime and gang members mentioned in the gang-chart will also be updated on Interoperable Criminal Justice System (ICJS) portal and Crime and Criminal Tracking Network System (CCTNS).
13. Specific statement of offences committed for economic, material and temporal or similar other benefits.- While writing the abstract below the gang-chart and particulars separately with the gang-chart, the particulars of those offences shall be specifically mentioned:
(I) which have been committed for pecuniary, materialistic and temporal or similar benefits; or
(ii) which disturb the public order; or
(iii) which are a ground for detention under the National Security Act, 1980 (Act No.65 of 1980).
16. Forwarding of Gang-Chart.--
The following manner shall be followed in the forwarding of Gang-Chart:
(1) Forwarding of the gang-chart by the Additional Superintendent of Police:- The Additional Superintendent of Police will not only take a quick forwarding action in the case but he will duly peruse the gang-chart and all the attached forms; and when it is satisfied that there is a just and satisfactory basis to pursue the case, only then will he forward the letter along with the recommendation given below on the gang-chart to the Superintendent of Police/Senior Superintendent of Police.
'Throughly studied the gang-chart and attached evidence. The basis of action under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 exists. Accordingly, forwarded with recommendation."
(2) Forwarding of the gang-chart by the district police in-charge:- When the gang-chart along with all the Forms is received by the Senior Superintendent of Police/Superintendent of Police with the clear recommendation of the Additional Superintendent of Police, he will also thoroughly analyse all the facts and when it is confirmed that all the formalities of the Act have been fulfilled and there is a legal basis for taking action in the case, then he should forward the gang-chart to the Commissioner of Police/District Magistrate stating that: "I have duly perused the gang-chart and attached forms and I am fully satisfied that all the particulars mentioned in the case are correct and there is a satisfactory basis for taking action under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Accordingly, approved."
(3) Resolution of the 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 and 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. Use of independent mind.--
(1) The Competent Authority shall be bound to exercise its own independent mind while forwarding the gang-chart.
(2) A pre-printed rubber seal gang-chart should not be signed by the Competent Authority; otherwise the same shall tantamount to the fact that the Competent Authority has not exercised its free mind."
17. Thus from perusal of the Rules, all that is required by Rules is that the Authorities recommending registration of a case under the Act of 1986 should come to the conclusion with an independent application of mind that a case under the Act of 1986 ought to be registered. Likewise, the Authorities approving the gang-chart also should come to the conclusion on an independent application of mind that a case under the Act of 1986 ought to be registered against the accused on the basis of the activities of the gang. However there is no prescription for the employment of particular words to serve as index of due application of mind.
18. It will be apt to take note of what has been held and observed by the Apex Court as well as the High Court with regard to the interpretation and application of the various provisions of the Act.
Status of criminal, not punishable- It is not the status of criminal, but the act which is made punishable. The activities of gangsters are offence under the Act since they pose grave threat to the even tempo of the society and, therefore, call for sterner and more deterrent punishment and speedier trial and early booking. (Ashok Kumar Dixit Vs. State of U.P.; 1987 (34) ACC 164).
The person who not liable to be punished- A person is not liable to be punished under the Act merely because he happens to be a member of a group. He comes within the clutches of the Act, when he chooses to join a group which indulges in any anti-social activities defined under the Act with use of force for gaining material and advantage to himself or any other person. (Ashok Kumar Dixit Vs. State of U.P.; 1987 (34) ACC 164).
Duty of the State to protect personal liberty of its citizens- Duty of State to protect personal liberty of its citizens, the State is duty bound to protect personal liberty of its citizens beyond doubt which is fundamentally guaranteed under Article 21 of the Constitution of India (Vimal Shukla Vs. State of U.P.; 2019 (1) ARC 299).
Necessity of deeper application of mind- The imposition of Gangsters Act calls for a deeper application of mind and the satisfaction of the authorities must be based on a definite opinion against an accused person. (Shubhankar Gupta Vs. State of U.P.; (2019) 1 A.Cr.R. 2) Caution for misuse of the provisions- The provisions of the Act cannot be used as a weapon to wreck vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts. The prosecution has to bear in mind that it has to bring home the guilt. (Ashok Kumar Dixit Vs. State of U.P.; 2007 (2) ACC 683 Alld.) Judicial scrutiny of the subjective satisfaction- In Gangster Act, a subjective satisfaction is open to limited judicial scrutiny, therefore, it would be wrong to contend that there is a complete embargo on the powers of Court to look at the sufficiency of the ground from any perspective. [Parvez Vs. State of U.P.; 2021 Crl.J. 4034 (All)(LB)].
There can be prosecution for single offence/FIR/chargesheet- 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 inclause (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/chargesheet 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. [Shraddha Gupta Vs. State of U.P. and others; (2022) 17 S.C.R. 622 (Para 10)(635-B-G)].
19. Considering the instant case in the light of the provisions of the Act and relevant Rules, it is evident that the gang chart in this case has been approved summarily without due discussion in the joint meeting of District magistrate and Superindentent of police, as is apparent from the perusal of the gang chart. Furthermore there is no specific mention of offences which have been committed for pecuniar, materialistic and temporal or similar benefits or which disturb the public order as per Rule 13. Furthermore, quick forwarding action has been taken in this case without caring for the compliance of the relevant rules. There should be satisfaction recorded to the effect that there is just and legal basis for taking action under the Act and there is satisfactory basis for persuing the case. The satisfaction so recorded should be there by using the mind independently but in the instant case the same is missing.
20. Considering the aforesaid submissions made by the learned counsel for the parties as well as perusal of records, it is evident from the records that at the time of approving the gang-chart, District Magistrate did not apply his mind as no reasons are recorded by him, resultantly, the lodging of FIR under Gangster Act is with malafide intention, in violation of the Gangster Rules, 2021, which shows that forwarding/ recommencing authorities as well as approving authority acted mechanically and the whole exercise lacks application of mind on the parts of the authorities concerned. The applicant has fundamental right to life which include to live with honour and dignity and fundamental right of under Article 21 of the Constitution of India cannot be interferred with lightly. The applicants have been deprived of their liberty by the mechanical excecise/procedure undertaken on the part of the authorities concerned.
21. The procedural compliance in cases of gangster Act is of utmost importance, departure from the due process of law will give chance and provide fodder to the vested interests with singular agenda to spread false narratives. Verily, gangsterism poses an ominious threat to public order. Vile and abhorrent acts of gangsterism do evoke collective societal anger and anguish. While the war against gangsterism must be waged by the State with unwavering resolve but a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integrated facet of the due process of law, at the altar of perceived peril to public order.
"The Siren Song that the 'end justifies the means', and that the procedural safeguards are subdervient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by voice of Rule of Law."
22. For all the reasons recorded above, the court is of the view that at the stage of preparing and approving the gang-chart on the basis of materials placed, the competent Authorities should have satisfied themselves that there is a legal basis and justifiction for taking and persuing action against the accused under the Act of 1986. At the stage of approval of the gang-chart, the approving Authority has to be satisfied that a case for action under the Act of 1986 is made out and that satisfaction should be reflected from the gang chart and other records. But in this case, the competent authorities, unhesitatingly just paid lip service to the legislative mandate and unfortunately had undertaken the whole exercise of preparation and approval of the gang chart as a ritualistic formality without due application of mind. Thus, civil dispute relating to land has been given colour of criminality and to add insult to injury, in the course of investigation, Section 2/3 of Gangster Act has been added in the criminal case that is unnecessarily given shape of act of gangsterism and anti social activities on the part of police and admistrative authorities. the initiation and continuation of the entire criminal proceedings is persecution and harassment of the accused , amounting to be sheer abuse of process of law as well as abuse of process of court, that is in order to sotherwise ensure the ends of justice is liable to be quashed.
23. In such view of the matter, the entire proceedings pending in the court of learned Special Judge (Gangster Act), Allahabad in Case No.97/08, in case crime no.113/07 under Sections 147, 148, 323, 504, 506, 420, 406 IPC and Section 2/3 of Gangster Act is, hereby, quashed against the applicant (Mohd. Muslim).
24. The application is, accordingly, allowed.
25. A copy of this order be certified to the lower court forthwith.
Order Date :- 3.8.2023 Ashutosh (Gajendra Kumar, J.)