Allahabad High Court
Ritesh Kumar Alias Rikki vs State Of U.P. And Another on 5 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2180
Bench: Pritinker Diwaker, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgement Reserved on: 28.06.2021 Judgement Delivered on: 05.08.2021 Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 3938 of 2021 Petitioner :- Ritesh Kumar Alias Rikki Respondent :- State of U.P. and another Counsel for Petitioner :- Utsav Singh, Vinay Singh Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 1296 of 2021 Petitioner :- Aman Kumar Maurya Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Aadesh Kumar Srivastava Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 1871 of 2021 Petitioner :- Vinod Alias Vinod Singh Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Brijesh Kumar Gautam, Shiv Vilas Mishra Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 1873 of 2021 Petitioner :- Aslam Respondent :- State of U.P. and another Counsel for Petitioner :- Akhilesh Srivastava, Araf Khan, Lihazur Rahman Khan, Saksham Srivastava Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 1986 of 2021 Petitioner :- Bobby Alias Jainendra Kumar Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Dharmesh Kumar Shukla, Devesh Kumar Shukla Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 2019 of 2021 Petitioner :- Mohammad Shakir @ Bunti Respondent :- State of U.P. and 3 others Counsel for Petitioner :- Jamil Ahamad Azmi Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 2291 of 2021 Petitioner :- Dhirendra Respondent :- State of U.P. and 3 others Counsel for Petitioner :- Rajesh Yadav Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 3819 of 2021 Petitioner :- Parvej and another Respondent :- State of U.P. and 3 others Counsel for Petitioner :- Narayan Singh (Kushwaha) Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 3845 of 2021 Petitioner :- Subhash and 2 others Respondent :- State of U.P. Counsel for Petitioner :- Sandeep Kumar Srivastava Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 4149 of 2021 Petitioner :- Kamta Prasad Alias Kamatu Verma Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Pradip Kumar Rao Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 4185 of 2021 Petitioner :- Babid @ Jhar Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Jamaluddin Mohd. Nasir, Mohd Nazam Counsel for Respondent :- G.A. with Case :- CRIMINAL MISC. WRIT PETITION No. - 4280 of 2021 Petitioner :- Shani Kumar and another Respondent :- State of U.P. and 2 others Counsel for Petitioner :- Anubhav Shukla, Ram Shiromani Shukla Counsel for Respondent :- G.A. Hon'ble Pritinker Diwaker,J.
Hon'ble Samit Gopal,J.
(Per Samit Gopal,J. for the Bench)
1. Matter taken up through video conferencing.
2. The above-mentioned 12 writ petitions are connected together with 11 other writ petitions and are listed today in the additional / unlisted list and as such, a total of 23 writ petitions are connected together. Out of 23 writ petitions connected together, one writ petition being Criminal Misc. Writ Petition No. 4216 of 2021 (Manish vs. State of U.P. and 03 others) has been prayed to be dismissed as infructuous by the learned counsel appearing therein on behalf of the petitioner and as such, separate order has been passed dismissing the same as being infructuous.
3. The above-mentioned 12 writ petitions have been stated to be urgent in nature by the learned counsels appearing on behalf of the petitioners and they have prayed that their cases be heard and decided inspite of non-appearance of other learned counsels appearing in the connected matters to which learned Additional Government Advocates appearing for the State of U.P. have no objection and as such, this Court proceeds to hear and decide the above-mentioned 12 writ petitions on their own merits.
4. The present bunch of writ petitions along with other writ petitions are connected together on the following question :
"Whether a first information report under the provisions of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 [hereinafter referred to as the ''Gangsters Act'] can be lodged and is maintainable on the basis of involvement of the petitioner(s) / accused in a single previous case".
5. The common ground as raised in all the writ petitions is that the petitioners have been made accused in the impugned first information reports which have been lodged under the provisions of the Gangsters Act on the basis of their involvement in a solitary case and even the gang chart prepared and approved by the authority shows that there is a single case against them on the basis of which, the impugned first information report has been registered which is illegal and against the essence of the Gangsters Act. The said first information report could not have been lodged on the basis of a solitary case and as such, the said writ petitions should be allowed and the respective impugned first information reports be quashed.
6. Criminal Misc. Writ Petition No. 3938 of 2021 has been filed challenging the first information report of Case Crime No. 0069 of 2021, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Kotwali, District Basti. Sri Amrendra Pratap Singh, learned counsel appearing in matter argued that:
(i) The petitioner has been falsely implicated in the present case on the basis of concocted facts and influence of illegal politics.
(ii) The impugned first information report has been lodged on the basis of a single case shown against the petitioner in which he has been granted bail vide order dated 09.02.2021 passed by the trial court.
(iii) No offence whatsoever is made out against the petitioner.
(iv) There is no independent witness of the alleged incident and the story narrated by the police is false. The petitioner is a peace loving and law abiding citizen.
(v) The lodging the impugned first information report on the basis of a solitary case is illegal. There is no evidence on record to show that the petitioner is either a gang leader or member of any gang as there is no evidence whatsoever to show that there was a meeting of mind of persons to commit the offence. There is no evidence to show that the petitioner along with co-accused collectively committed the offence. There is no material to show that the alleged gang is operating.
7. Criminal Misc. Writ Petition No. 1296 of 2021 has been filed challenging the first information report of Case Crime No. 297 of 2020, under Sections 2/3 (1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Colonelganj, District Prayagraj. Sri Aadesh Kumar Srivastava, learned counsel appearing in the matter argued that:
(i) The entire allegations levelled against the petitioner is false, frivolous, perverse and without any legs to stand and as such, the impugned first information report is liable to be quashed.
(ii) The petitioner is a respected person having good academic record and at the time of the incident, was preparing for his third year of graduation and his name has been dragged in the present case by some political persons.
(iii) The single case on the basis of which the impugned first information report has been registered is a false case in which the petitioner has been falsely implicated and he has been granted bail vide order dated 03.03.2020 by the trial court.
(iv) The petitioner is neither a gang leader nor a member of any gang and is not involved in any illegal activity.
(v) There is no direct evidence against the petitioner and the name of the petitioner has been dragged in the said matter solely on the basis of his confessional statement while he was in police custody.
(vi) As such, the impugned first information report be quashed.
8. Criminal Misc. Writ Petition No. 1871 of 2021 has been filed challenging the first information report of Case Crime No. 0028 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 , Police Station Dhaulana, District Hapur. Sri Shiv Vilas Mishra, learned counsel appearing in the matter has argued that :
(i) The petitioner has been falsely implicated in the present case. As per the gang chart only one case has been shown against the petitioner on the basis of which the impugned first information report has been registered and in the said case the petitioner has been granted bail vide order dated 10.04.2019 passed by this Court. The case in which the petitioner has been shown to be involved is a false case and the police after getting a tip off information, arrested the petitioner and other persons and has shown some recoveries on the basis of joint confessional statement. There is no public or independent witness of the alleged recovery. The said case is a false case and the petitioner has been falsely implicated therein.
(ii) The said case is a case of the year 2019 and is an old case. No recent case has been shown against the petitioner. The impugned first information report has been registered on 28.01.2021. The said case on the basis of which the impugned first information report has been registered and the gang chart has been prepared is a stale case and there is no evidence against the petitioner being involved in any activity which could be said to be a recent activity against law.
(iii) Section 2 (b) of the Gangsters Act has been placed before the Court and the learned counsel has stressed upon the word ''acting' and proceeded to argue that there is no evidence or allegation to show that the petitioner ''continued to act' and had a ''recent activity' of any indulgence in any illegal activity.
9. Criminal Misc. Writ Petition No. 1873 of 2021 has been filed challenging the first information report of Case Crime No. 61 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Civil Lines, District Aligarh. Sri Araf Khan, learned counsel appearing in the matter has argued that :
(i) The petitioner has been falsely implicated in the present case on the basis of his involvement in a single case and in the said case, the arrest of the petitioner has been stayed by a Division Bench of this Court vide order dated 30.05.2019.
(ii) The basis on which the impugned first information report has been registered is a case of civil nature. After the protective order in favour of the petitioner by this Court, charge-sheet has been submitted against him and cognizance has been taken by the concerned Magistrate which is illegal and is without any evidence. The petitioner is a law abiding and peace living citizen of the society and is innocent. He has not committed any offence and is not a member of any gang.
(iii) It is stated that he does not intend to argue that a case under the Gangsters Act cannot be lodged on the basis of involvement in one case as the same can very well be done. Even if the first information report cannot be quashed, at least the interest of the petitioner be protected by giving him a protective order.
10. Criminal Misc. Writ Petition No. 1986 of 2021 has been filed challenging the first information report of Case Crime No. 0192 of 2020, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Pisava, District Aligarh. Sri Devesh Kumar Shukla, learned counsel appearing in the matter has argued that:
(i) The petitioner has been falsely implicated in the present case. The lodging of the impugned first information report is on the basis of involvement of the petitioner only in one case in which he has been granted bail vide order dated 11.11.2020 passed by this Court.
(ii) No offence is made out against the petitioner and the case has been registered because of enmity and local party bandi.
(iii) The petitioner is neither a leader nor a member of any gang.
11. Criminal Misc. Writ Petition No. 2019 of 2021 has been filed challenging the first information report of Case Crime No. 0045 of 2021, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Amroha City, District Amroha. Sri Jameel Ahmad Azmi, learned counsel appearing in the matter has argued that:
(i) The impugned first information report has been registered against the petitioner showing his involvement only in one case. The petitioner has been falsely implicated in the present case.
(ii) The petitioner is a businessman and is engaged in the business of Sandal Wood by following all legal procedures and norms. The sole case shown against the petitioner in the gang chart was challenged before this Court in which vide order dated 11.11.2020, the arrest of the petitioner has been stayed by a Division Bench of this Court while disposing of the said writ petition.
(iii) The case of the petitioner does not fall under Section 2 (b) of the Gangsters Act.
12. Criminal Misc. Writ Petition No. 2291 of 2021 has been filed challenging the first information report of Case Crime No. 34 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Jasrana, District Firozabad. Sri Rajesh Yadav, learned counsel appearing in the matter has argued that :
(i) The petitioner has been falsely implicated in the present case. According to the gang chart, one case has been shown against the petitioner on the basis of which the impugned first information report has been lodged and in the said case, the petitioner has been granted bail vide order dated 20.01.2021 passed by the trial court.
(ii) The said case on the basis of which the impugned first information report has been registered was lodged against 02 unknown persons. Subsequently, the name of the petitioner surfaced during investigation which is the handy work of the police. Persons of the said case were not known to the petitioner and despite this fact, a false case has been registered against him. 04 persons were arrested in a different case who named the petitioner as a person in whose shop they had sold part of a gold chain and as such, the petitioner has been implicated in the said case.
13. Criminal Misc. Writ Petition No. 3819 of 2021 has been filed challenging the first information report of Case Crime No. 296 of 2020, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Nidhauli Kalan, District Etah. Sri Narayan Singh Kushwaha, learned counsel appearing in the matter has argued that:
(i) The petitioners are peace loving and law abiding citizens and have never involved themselves in any type of criminal activity.
(ii) Although the impugned first information report has been lodged showing the involvement of the petitioners in one case but in the said case they have been granted bail vide order dated 24.09.2020 passed by the trial court. The prosecution case as narrated in the first information report is absolutely false and concocted and without any documentary proof or any support of any independent witness because the petitioners have never been arrested on the spot and the allegations are fake and fabricated. The entire prosecution case has been initiated on the basis of wrong facts and false, concocted and fabricated story in collusion with the local political persons who have a grudge against the petitioners. No prima facie case is made out against the petitioners.
(iii) The petitioners are neither members of a gang nor gang leader.
14. Criminal Misc. Writ Petition No. 3845 of 2021 has been filed challenging the first information report of Case Crime No. 255 of 2021, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Gajraula, District J.P. Nagar (Amroha). Sri Sandeep Kumar Srivastava, learned counsel appearing in the matter has argued that :
(i) The petitioners have been falsely implicated in the present case. Only one case has been shown against the petitioner nos. 1 & 2 being of the year 2020 in which they have been granted bail vide orders dated 10.09.2020 and 21.09.2020 passed by the trial court. The petitioner no. 3 is also said to be involved in one case but the said case is of the year 2019 and even in the said case, he has been granted bail vide order dated 03.07.2019 passed by the trial court. Except for the single case against the petitioners, there is no other case shown against them.
(ii) The petitioners do not run any gang and have not given threat to any public and have been falsely shown as gangsters.
(iii) In so far as the petitioner no. 3 is concerned, the impugned first information report has been registered on 17.04.2021 where as the solitary case against him is a stale case and as such, he adopts the arguments as raised by learned counsel for the petitioner in Criminal Misc. Writ Petition No. 1871 of 2021 to this extent.
15. Criminal Misc. Writ Petition No. 4149 of 2021 has been filed challenging the first information report of Case Crime No. 159 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Baberu, District Banda. Sri Pradip Kumar Rao, learned counsel appearing in the matter has argued that :
(i) The petitioner has been falsely implicated in the present case. The involvement of the petitioner has been shown in the gang chart in two cases of the year 2019 and in both the cases, the petitioner has been released on bail vide orders dated 14.11.2019 passed by this Court.
(ii) The petitioner has been falsely shown as a gang leader of the gang and the offence under the Arms Act as shown against the petitioner being two cases do not fall within the purview of Gangsters Act.
(iii) There is no ingredient of Gangsters Act in the impugned first information report and as such, the petitioner cannot be said to be indulged in any criminal activity.
(iv) The lodging of the first information report is totally false and baseless.
16. Criminal Misc. Writ Petition No. 4185 of 2021 has been filed challenging the first information report of Case Crime No. 0204 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Kharkhauda, District Meerut. Sri Jamaluddin Mohd. Nasir, learned counsel appearing in the matter has argued that :
(i) The petitioner has been falsely implicated in the present case. He is a peace loving, law abiding citizen and commands respect in the locality. The involvement of the petitioner in the present case is shown on the basis of a single case in which the petitioner was issued a notice under Section 41 (A) Cr.P.C. by the Investigating Officer in pursuance of which he appeared before him and was released by him.
(ii) The petitioner has not committed any offence, no offence is made out against him. The first information report has been lodged with malafide intentions.
17. Criminal Misc. Writ Petition No. 4280 of 2021 has been filed challenging the first information report of Case Crime No. 05 of 2021, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Manchi, District Sonbhadra. Sri Anubhav Shukla, learned counsel appearing in the matter has argued that :
(i) The involvement of the petitioners in the present case is on the basis of a single case in which the petitioner no. 1 was not named in the first information report and his name came into picture after 09 months of the incident whereas the petitioner no. 2 was not arrested by the police and even then charge-sheet has been submitted against both.
(ii) Lodging of the case on the basis of which the impugned first information report has been lodged is a fake first information report and the petitioners are not members of any gang.
(iii) Lodging of the first information report is an abuse of process of court and the action of police is arbitrary, illegal, malafide and with an intention to harass the petitioners.
18. Per contra, Sri J.K. Upadhyay and Sri Amit Sinha, learned Additional Government Advocates appearing for the State of U.P. argued that :
(i) Under the Gangsters Act, lodging of the first information reports even on the basis of the involvement of an accused in a single and solitary case is not illegal. The said proposition of law has been dealt with in the judgements of this Court in the case of Ajay Rai vs. State of U.P. and others: 1995 Cr.L.J. 2801; Rinku @ Hukku vs. State of U.P. and another: 2000 Cr.L.J. 2834 and Kishan Pal @ K.P. vs. State of U.P. and another: (2006) 54 ACC 1015. The said three cases in no indifferent terms have held that lodging of a first information report on the basis of a single case is permissible.
(ii) The implication of an accused in a single case is not a bar in lodging of a first information report under the provisions of the Gangsters Act even after a considerable period of time.
(iii) Since the perusal of the first information report discloses commission of a cognizable offence, the impugned first information reports cannot be quashed.
(iv) Barring Criminal Misc. Writ Petition No. 4149 of 2021 which is though connected with this bunch but the same has the implication of the petitioner therein on the basis of two cases, the other cases being argued on the premise that lodging of the first information report under the Gangsters Act on the basis of a solitary case is not permissible, is incorrect. In the said judgements, it has been held that a first information report under the Gangsters Act can be registered on the basis of a solitary case.
(v) Since perusal of the impugned first information reports in all the cases do disclose commission of an offence, investigation is required and since investigation is required, the said first information reports cannot be quashed.
(vi) The efforts of the learned counsels for the petitioners to demonstrate that their involvement in the previous case on the basis of which the impugned first information reports have been registered are false implications, cannot be gone into by this Court as the said cases are not the matters to be adjudicated by this Court and are separate cause of actions.
(vii) Since a cognizable offence is made out on the reading of the first information reports in all the cases, investigation is required and as such, the same cannot be quashed and so no interim order of protection can also be granted as per settled principles of law.
(viii) The present writ petitions are devoid of any merit and deserve to be dismissed.
19. Before dealing with the question in issue, it will be apt to reproduce Section 2 (b) and (c) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 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 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;
(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;"
20. The proposition as to whether a first information report under the Gangsters Act can be lodged on the basis of involvement of an accused in only once case is no more res integra.
21. In the judgement of Ajay Rai (supra) paragraph 6, 9 and 10 are as follows:-
"6. As a law point alone was urged concerning interpretation of the term "indulges" as aforesaid, the State counsel was heard even without a counter affidavit on facts. It was urged by him that the FIR was a competent one as the ingredients of the term "gang" and "gangster" were made out therein.
9. As to meaning of the term "indulges", the learned counsel relied on the dictionary meaning as given by the Webstar Dictionary and one of such meaning, according to the learned counsel, is to yield to the desire of or to get pleasure in doing etc. The Chamber's English Dictionary interprets the term "indulge" as a transitive verb "to yield to the wishes of", "to favour or gratify" and "not to restrain" and this term is also an intransitive verb meaning "permit oneself in action or expression. This meaning is to be given when the term is used with proposition "in". The definition, as per Section 2, not only uses the term "indulges", the term is immediately followed by the word "in" and we may, therefore, safely take the term to mean to permit oneself in action or expression. Thus, we may say that the terms "indulge in" in the definition of "gang" would carry the same meaning as "does" or "commits". These two common terms have been avoided by the legislature apparently for the reason that the terms "indulge in" are followed by two words "anti-social activities." Moreover, there are certain actions detailed in the next 15 sub-clauses the doing of which may not strictly come within the term "commits". We may look to the paragraphs 10 to 13 and 15 of the clauses in Section 2(b) in appreciating this view.
10. If the legislature had the intention that the Act would be applicable only to past proven acts, there was no bar for the legislature to have used the word "habitually" within the definition of gang. We may look to the preamble of the Act for interpreting this definition. This Act was enacted to make special provisions for the prevention of and for coping with gangster and anti-social activities and for matters connected therewith or incidental thereto."
22. A Full Bench of this Court in the case of Ashok Kumar Dixit vs. State of U.P.: AIR 1987 Allahabad 235, has stated about the concept behind lodging of a first information report under the Gangsters Act. It has been held in paragraph 73 and 74 as follows:-
"73. In this behalf, provisions of the Act themselves provide intrinsic guidelines. If we advert to Section 2(b) of the Act. which defines the term 'gangster' we would find significant words. They are "acting", 'singly or collectively', 'violence or show of violence', 'intimidation', 'coercion', or unlawful means'. Thus, for booking a person under the provisions of the Act the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.
74. While laying down so, we should not be oblivious of the avowed object of the Act. Under the ordinary criminal law, it is sometimes difficult to bring to book the overlords of crime and underworld because they seldom operate in person or in the public gaze. They indulge in clandestine operations which threaten to tear apart the very fabric of society. It is this purpose which the Act seeks to achieve."
23. In the case of Subhash vs. State of U.P. and another: 1998 SCC Online All 973, a Division Bench of this Court framed the following questions while dealing with a writ petition in which there was a challenge to the first information reports under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The questions as framed are enumerated in paragraph 1 of the judgement which is as follows:-
"1. In all these matters the respective petitioners have challenged their prosecution for an offence under Sections 2 and 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act (in short ''the Act'). Prayers have been made for quashing the respective F.I.Rs. and for interim orders protecting them from arrest. The questions, that have been raised, may be categorised as follows:
1. There could not be prosecution under the Act for a single incident as the Act spoke of "anti-social activities" (in plural).
2. Prosecution under the Act for past offences was not thought of.
3. If at all the Act created a new concept of an offence, there must be some allegation that any act or omission towards the commission of the offence was there.
4. The words "indulges in" as used in Section 2 of the Act would only mean that there should be habituality of the acts covered by Section 2."
The answer to the questions enumerated in paragraph 1 of the judgement have been given in paragraph nos. 13, 14, 15 and 16 of the said judgement which are as follows:-
"13. As a sequel to this decision when there are some allegations of any act or omission towards the commission of the offfence under the Act to justify an F.I.R., it follows that such an F.I.R. could lie even for a single incident as habituality of the acts is not required for making out an offence. The words used in Section 2 are no doubt in plural indicating "indulge in anti-social activities" but the sentence does not stop with the words "anti-social activities". It goes on with the word, "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 he 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, answer point No. 1 framed by us.
14. We are left with the question whether prosecution under the Act was thought of for past offences. We may, for a decision on this point, refer to the definition of the term "gang" as given in Section 2(b) of the Act. The requirement of this definition are that (1) "Gang" means a group of persons, (2) those persons might act either single or collectively, (3) such action is to be associated with violence or threat or show of violence or intimidation or coercion or otherwise, (4) such action must be with the object of disturbing public order or of gaining any undue advantage (temporal pecuniary, material or otherwise) for himself or for any other person. If under the condition of the above points anti-social activities, as enumerated under the definition, are indulged in then and then only the action could be designed as an action of a gang. If a person is a member or a leader or organiser of a gang, or if he abets or assists in the activities of a gang or harbours any person who has indulged in such activities, such person would be a gangster and he is to be punished with the penalty as indicated in Section 3 of the Act. All the anti-social activities enumerated under the definition of ''Gang' are not covered as offences, but were certainly unlawful activities having serious reflection on the society, though not termed as offences. The law, thus, never required that offence must have been committed in the past for a proper prosecution under this Act.
15. Section 4 of the Act speaks of special rules of evidence and States as under:
"4. Special Rules of Evidence.-- Notwithstanding anything to the contrary contained in the Court (Code) or the Indian Evidence Act, 1872 (1 of 1872) for the purposes of trial and punishment for offences under this Act or connected offences;
(a) the Court may take into consideration the fact that the accused was--
(i) on any previous occasion bound down under Section 107 or Section 108 or Section 109 or Section 110 of the Code, or
(ii) detained under any law relating to preventive detention, or
(iii) externed under the Uttar Pradesh Control of Goondas Act, 1970 (Act No. 8 of 1971), or any other such law;
(b) where it is proved that a gangster or any person on his behalf is or has at any time been, in possession of movable or immovable property which he cannot satisfactorily account for, or where his pecuniary resources are disproportionate to his known sources of income, the Court shall, unless contrary is proved, presume that such property or pecuniary resources, have been acquired or derived by his activities as a gangster;
(c) where it is proved that the accused has kidnapped or abducted any person, the Court shall, presume that it was for ransom;
(d) where it is proved that a gangster has wrongfully concealed or confined a kidnapped or abducted person, the Court shall presume that the gangster knew that such person was kidnapped or abducted, as the case may be;
(e) the Court may, if for reasons to be × × × × × × × × × recorded it thinks fit so to do, proceed with the trial in absence of the accused and record the evidence of any witness, provided that the witness may be recalled for cross-examination if the accused so desires but recording his examination in chief afresh in presence of the accused shall not be necessary."
Under these special rules of evidence, the Court is entitled to take into consideration the previous orders binding down an accused under Sections 107, 108, 109 or 110 of the Code of Criminal Procedure, or previous orders of detention under preventive laws, or previous orders of externment under the U.P. Control of Goondas Act, but the special rules of evidence do not permit consideration of previous conviction for an offence under any other law. This also suggests that the past acts are not meant to be punished under the provisions of the present legislation.
16. In dealing with the procedures, Section 7 of the Act provides that only a special Court constituted under the Act is to take up a case under this Act, is to try an offence under this Act, and Section 10 provides that the special Court is empowered to take cognizance of any offence triable by it, without there being a regular commitment order and cognizance could be taken either on complaint or a police report. Section 8 provides that when a special Court tries any offence punishable under this Act, it can also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial. This suggests that if by a single act of omission the offender commits an offence under the general law as also one under this Act, both the offences may be tried together before the special Court. This saves the provisions of Section 300(4), Cr. P.C., as was observed by the Division Bench in Ajai Rai's case (supra) at paragraph 13 of that judgment. We may, therefore, conclude that allegations of past acts may not be the sole criterion for institution of a case for an offence under this Act, rather if there be old cases pending on the date of institution of the F.I.R. under any other offence and for the same set of facts a case under this Act is also instituted, then those cases should also come to the special Court to avoid double jeopardy to the accused. We may, therefore, answer point No. 2 with the observation that a prosecution under the Act for past offence was not thought of unless elements of the offence under this Act are made out."
It has been held in no uncertain terms while answering the question no. 1 that a first information report can be lodged even for a single act, if it is covered by the requirements of law.
24. In the judgement of Rinku @ Hukku (supra) paragraph 12 is as follows:-
"12. In view of the above, under Sec.13 of the U.P. General Clauses Act the activities denotes activity as well as the said provisions are in pari materia of Sec.13 of the General Clause Act 1897. As such a single act of anti-social activity can come within the definition of gangster."
25. In the judgement of Kishan Pal @ K.P. (supra) while following the judgement in the case of Shamsul Islam and Rinku @ Hukku it has been also held as follows:
"6. Therefore, the Division Bench under writ jurisdiction scrutinized the individual cases of investigation to grant relief in direct conflict with Full Bench decision. It is a departure from the ratio of the Full Bench judgment and as such has no binding effect. That apart, the aforesaid judgment was also distinguished by another Division Bench of this Court in Shamsul Islam v. State of U.P, 1999 (38) ACC 315 . There the Court held that original relief is quashing of the first information report. Additional relief is in the nature of stay of arrest. If the original relief can not be granted, the order of stay can not be granted. The Act creates a new and distinct Offence. The protection of Article 20 (2) of the Constitution of India would not be available at all at any stage and there can be no bar in arresting the person, who has committed an offence, which is punishable under the Act. Therefore, as we understood question of double jeopardy or double conviction or double protection or double arrest may not hit the cause since the source of investigation is the separate law introduced by the State. In a further judgment in Rinku alias Hukku v. State of U.P. and another, 2001 (Suppl) ACC 641 (HC-LB) a Division Bench of this High Court held that singular includes plural and vice versa, thereby single act of antisocial activities is sufficient to trap a person as a gangster. Hence, the basis of the judgment reported in Subhash (supra) is no more available in view of the successive judgments and these being later judgments have binding effect upon this Court. There is no occasion to forward the matter to the Larger Bench in view of the discussion made herein."
26. The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
27. Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
28. The Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others: Criminal Appeal No. 330 of 2021 in its judgment dated 13th April, 2021 has in detail held that the Courts should not thwart any investigation into the cognizable offences. It is only in cases where no cognizable offence or offence of any kind is disclosed in the First Information Report that the Court will not permit an investigation to go on. The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases. While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. Criminal proceedings ought not to be scuttled at the initial stage. Quashing of complaint/FIR should be an exception rather than an ordinary rule. Ordinarily, the Courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. The First Information Report is not an encyclopaedia which must disclose all facts and details regarding the offence reported. Therefore, when the investigation by the police is in progress, the Court should not go into merits of the allegations made in the FIR. Police must be permitted to complete the investigation.
29. After having heard the learned counsels for the parties and perusing the records, it is apparent that barring Criminal Misc. Writ Petition No. 4149 of 2021, all the above writ petitions were argued on the common point for which the question as framed, is answered that as per the settled principles of law, the lodging of a first information report on the basis of a single case, is valid and permissible. In a petition under Article 226 of the Constitution of India, this Court cannot adjudicate the correctness of the allegations in the impugned first information reports or the cases on the basis of which the impugned first information reports have been lodged. The writ petitions are thus dismissed.
30. In so far as Criminal Misc. Writ Petition No. 4149 of 2021 is concerned, the involvement of the petitioner is on the basis of two cases and even therein from perusal of the first information report, a cognizable offence is made out. The writ petition is also dismissed.
31. The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner (s) along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
32. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 05.08.2021
AS Rathore / RK
(Samit Gopal,J.) (Pritinker Diwaker,J.)