Allahabad High Court
Amit Chadda @ Amit Kumar vs State Of U.P. on 15 October, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 07.05.2019 Delivered On 15.10.2019 Court No. - 34 (1) Case :- APPLICATION U/S 482 No. -5604 of 2003 Applicant :-Amit Chadda @ Amit Kumar Opposite Party :- State Of U.P. Counsel for Applicant :- Sushil Shukla Counsel for Opposite Party :- Govt. Advocate, S. A. Murtaza With (2) Case :- APPLICATION U/S 482 No.-7103 of 2003 Applicant :-Ashok Dodeja and Others Opposite Party :- State Of U.P. Counsel for Applicant :- A. K. Awasthi, Manish Tiwary Counsel for Opposite Party :- Govt. Advocate, S. A. Murtaza Hon'ble Sudhir Agarwal, J.
1. Both these criminal applications under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") have been filed with the prayer of quashing proceedings of Criminal Case No.165 of 2003 under Section 2/3 of U. P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as 'Act, 1986'), Police Station-Kotwali, District-Bareilly, pending in the Court of Special Judge, (Gangster Act), District-Bareilly.
2. Application under Section 482 No.5604 of 2003 (hereinafter referred to as "First Application") has been filed by Amit Chadda alias Amit Kumar. Application under Section 482 No.7103 of 2003 (hereinafter referred to as "Second Application") has been filed by Ashok Dodeja, Monu alias Vikram Dodeja and Sonu alias Vikram Dodeja. Ashok Dodeja, first applicant in Second Application is father of remaining two applicants in Second Application.
3. Heard Sri Sushil Shukla, learned counsel for applicant in First Application, Sri Anurag Vajpayee, Advocate holding brief of Sri Manish Tiwary, learned counsel for applications in Second Application and Sri S. A. Murtaza, learned A.G.A. for State-respondents in both applications.
4. First Information Report (hereinafter referred to as 'FIR') in Case Crime No.844 of 2003 dated 07.04.2003 was lodged at Police Station-Kotwali, District-Bareilly against all four applicants alleging that all applicants constitute an organized gang and its leader is Ashok Dodeja. They, individually and collectively, are habitual of committing crime and indulge personally as well as in gang in the offence of extraction of money and other anti social activities. Cases registered against them detailed in FIR is Case Crime No.1938 of 2000, dated 28.11.2000 under sections 323, 504, 506 IPC and under Sections 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act') and Case Crime No.830 of 2003 dated 06.04.2003, under Sections 384/329 IPC.
5. Learned counsel for applicants submitted that in Case Crime No.1938 of 2000, complaint was lodged by one Premvati under Section 156 (3) Cr.P.C. Thereafter on the directions of Magistrate, FIR was registered on 28.11.2000. Contents of said FIR do not have any nexus with alleged gang as mentioned in the FIR. Secondly, Case Crime No.830 of 2003 is where FIR was lodged by Pushpendra Maheshwari naming applicants, out of business rivalry and it was alleged that accused persons have defamed Informant since he did not budge to demand of Rs.5000, therefore this FIR is on the ground of political influence and there is no allegation of any bodily injury etc. Aforesaid two criminal cases registered against applicants, do not have any nexus with commission of offence as defined under Act, 1986 and therefore, FIR under Act, 1986 is wholly illegal and without jurisdiction.
6. In order to attract, Act, 1986 it is necessary that the incumbent must be a 'Gangster' as defined in Section 2 (c) and must have indulged to abet or assist in activity of 'Gangs' narrated in Section 2 (b) which defines the term "Gang". Section 2 (b) and (c) of Act, 1986, which define 'Gang' and 'Gangster' reads under :
"2 (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 Narcotics 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;
(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;"
7. Thus, if the offences are punishable under Chapter XVI or Chapter XVII or Chapter XXII of I.P.C. same are within the definition of "Gang" under 2 (b) of Act, 1986. Here Section 323 is under Chapter XVI of IPC and Sections 504 and 506 are under Chapter XXII of IPC, therefore, alleged offences committed by applicant are covered by Chapter XVI and XXII of IPC and comes within meaning of "Gang" as defined under Section 2 (b) (i) of Act, 1986.
8. Thus the very submission that offences alleged in FIR do not constitute offences to fall within the definition of 'Gang' as defined under Act, 1986 is ex facie incorrect and has no basis. Whether aforesaid crime actually has been committed or not, involves question of fact and has to be decided in trial by Trial Court and cannot be examined at this stage, where cognizance has been taken by Magistrate and accused-applicants have been summoned after receipt of charge sheet.
9. Dismissed. Interim order, if any, stand vacated.
Order date :- 15.10.2019 Manish Himwan