Allahabad High Court
Ramesh Kumar vs State Of U.P. Thru. Addl. Chief Secy. ... on 17 January, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:4746 AFR Court No. - 11 Case :- APPLICATION U/S 482 No. - 358 of 2024 Applicant :- Ramesh Kumar Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another Counsel for Applicant :- Bhola Singh Patel,Beant Singh,Vivek Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Vivek Kumar Verma, learned counsel for the petitioner and Sri Ram Raj Singh, learned AGA for State.
2. By means of this petition the petitioner has prayed following relief :
"Wherefore, it is most respectfully prayed that this Hon'ble High Court may kindly be pleased to quash the impugned order dated 17.01.2023, passed by the Special Judge, Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Additional Session Judge, Court No.-08. Barabanki in Gangster Case No. 2009/2021, State Vs Ramesh Kumar & others, arising out case crime no. 215/2020, under section-3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Police Station- Satrikh, District- Barabanki, and also quash its consequential criminal proceeding, contained as Annexure No 1 to this petition."
3. This is a case which can be appreciated on the basis of maxim "Sublato fundamento, cadit opus" which means if the foundation of anything is vanished, the super structure constructed whereon shall automatically demolish.
4. Learned counsel for the petitioner has drawn attention of this court towards the gang chart (Annexure no. 3) wherein three cases have been imposed against the petitioner bearing Case Crime Nos. 336 of 2019 u/s 406 & 506 IPC, P.S. Kotwali Nagar, District Barabanki, Case Crime No. 96 of 2020 u/s 323, 504, 506, 342 IPC, P.S. Satrikh, District Barabanki, Case Crime No. 121 of 2020 u/s 420, 504 & 506 IPC, P.S. Satrikh, District Barabanki. Learned counsel for the petitioner has stated that the proceedings of all the aforesaid three cases have been quashed by this Court on the basis of compromise between the parties.
5. Attention has been drawn towards the order dated 18.4.2023 passed by this Court in Application U/s 482 No. 1009 of 2023 allowing the petition filed u/s 482 Cr.P.C. quashing the entire proceedings emanating pursuant to the Case Crime no. 7341/2020 arising out of Crime No. 0336 of 2019 (supra).
6. Further, attention has been drawn towards the order dated 31.8.2022 passed in Application U/S 482 No. 5429 of 2022 (Ramesh Kumar Yadav vs. State of U.P. & others) quashing the entire proceedings emanating from F.I.R./ Crime No. 0121/2020 (supra). Further, attention has been drawn towards the order dated 20.3.2023 passed by this Court in Application U/S 482 No. 1001 of 2023 quashing the entire proceedings emanating out of Crime No. 0096 of 2020 (supra). Learned counsel for the petitioner has submitted that there is one more case bearing Case No. 194 of 2020 u/s 307, 325, 427 IPC, P.S. Satrikh, District Barabanki, though that case is not included in the gang chart but the proceedings emanating to aforesaid crime case have been quashed / set aside by this Court on the basis of compromise vide an order dated 11.7.2023.
7. Learned counsel for the petitioner has, therefore, submitted that since the entire proceedings of the crime cases which have been indicated in the gang chart have been set aside / quashed by this Court, therefore, the proceedings of Gangster Act may not continue any longer against the petitioner inasmuch as the proceedings under the Gangster Act are not independent proceedings rather same proceedings depends upon the cases which have been indicated in the gang-chart. In support of the aforesaid arguments learned counsel for the petitioner has cited some case laws i,e. Salim vs. State of U.P., (Allahabad) : 2019(12) ILR (Allahabad) 133, Sartaj vs. State of U.P. : 2020(111) ACrC 51 : 2020(1) ILR (Allahabad) 1659 and judgment dated 12.3.2019 in Criminal Revision No. 3309 of 2008 : Jai Prakash and others vs. State of U.P. wherein the concurrent view of this Court is that since the proceedings under the Gangster Act are not the independent proceedings, therefore, implication and trial of the accused-applicant u/s 2/3 of Gangster Act was not justified if the criminal cases, so indicated in the gang-chart have either been quashed / set aside or in those cases the accused person has been acquitted.
8. Learned AGA has, however, tried to justify the proceedings of Gangster Act by saying that the criminal proceedings of the Gangster Act are going on and those proceedings may not be quashed / set aside for the reason that the cases, so indicated in the gang-chart have been set aside. However, on being confronted on the point that if all the criminal cases which have been indicated in the gang chart have been set aside / quashed by this Court then how and on what basis the petitioner may be implicated and punished u/s 2/3 of the Gangster Act, he could not give proper reply.
9. Having heard learned counsel for the parties, having perused the material available on record and having regard to aforesaid case laws, I am also of the considered opinion that when all the criminal cases which have been indicated in the gang chart have been set aside / quashed by this Court then the foundation of the Gangster Act goes and if the very foundation of the Gangster Act goes and the proceedings of Gangster Act would not survive on the basis of maxim "Sublato fundamento, cadit opus". Notably, this Court in re: Salim vs. State of U.P. (supra) while allowing the petition, considered and perused the judgments of the Apex Court in para 7,8,9,10 and 13 which are being reproduced herein below :
"7. In support of his contention learned counsel has further placed reliance on the judgment of the Apex Court in the case of N.R. Ghosh vs. the State of West Bengal, AIR 1960 Supreme Court (SC) 239 and has relied upon in paragraph 22 of the same reads as under:-
"The principle stated in the section is that when a person has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of it, he shall not while the conviction or acquittal remains in force, be tried again for the same offence. In order, therefore, that the appellant may have the benefit of the section he must have been tried by a court of competent jurisdiction. Furthermore, such acquittal must be in force."
8. Reference to the Apex Court judgment in the case of Manipur Administration, Manipur vs. Thokchon Veere Singh, AIR 1965 (SC) 87 has also been made wherein paragraph 6 are as follows:-
Before referring to the decision of this Court in Pritam Singh v. State of Punjab(1) it would be convenient to refer to and put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section is as follows:-
"403 (1) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under s. 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(1) A.T.R. 1956 S.C. 415.
(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
Explanation-The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." Section 26 of the General Clauses Act which is referred to in s. 403 enacts:
"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
We might also, in this connection, refer to Art. 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads:
"20(2). No person shall be prosecuted and punished for the same offence more than once." As has been pointed out by this Court in State of Bombay v. S. L. Apte(1), both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.
9. Reliace on Apex Court judgment in the case of Lalta and others vs. State of U.P., AIR 1970 (SC) 1381 has been made, wherein case of Pritam Singh's (supra) and Manipur Administration's case (supra) have been accepted as binding authorities on the issue. Reference to Municipal Corporation of Delhi vs. Shiv Singh 1971 (1) SCC 422 has been made where Section 26 of the general clauses Act 1897 were considered regarding the question of double jeopardy in relation to prosecution of an accused for single offence under two enactments and it was held that Section 26 of the general clauses Act prevents accused from double penalty. This judgment has been relied by the counsel to advance the proposition that the prosecution of the revisionist under the general provisions of Indian Penal Code and then under the provisions of Special Act i.e., Gangster Act on the basis of implication in the case under Section I.P.C., wherein he has been acquitted should not be permitted.
10. Counsel for the applicant has referred to the judgment, Bhagat Ram vs. State of Rajasthan (1972) 2 SCC 466, wherein the Apex Court held that even if an order of acquittal is passed by Division Bench of the Court, it is not open for the third Judge of the same Court in a subsequent stage of the same proceedings to convict the person unless the judgment of the Division Bench is set aside by the Supreme Court. In view of the principle embodied in Section 403 I.P.C.
13. Learned counsel for the applicant has relied upon the judgment in the case of Kolla Vira Raghav Rao vs. Gorantla Vlalalalalal Rao, (2011) 2 SCC 703. In this case the Apex Court disapproved the prosecution of the accused under Section 420 I.P.C. After he was convicted under Section 138 N.I. Act, holding that the subsequent prosecution is barred by article 20(2) and Section 300(1) Cr.P.C. once the facts are the same. "
10. Accordingly, the order dated 17.01.2023, passed by the Special Judge, Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Additional Session Judge, Court No.-08. Barabanki in Gangster Case No. 2009/2021, State Vs Ramesh Kumar & others, arising out case crime no. 215/2020, under section-3(1) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Police Station- Satrikh, District- Barabanki, and its consequential criminal proceeding are hereby quashed.
11. In view of above, the petition is allowed, so far as the petitioner is concerned.
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(Rajesh Singh Chauhan, J.) Order Date :- 17.1.2024 Om