Uttarakhand High Court
Mohd. Haneef vs State Of Uttarakhand on 3 April, 2013
Author: U.C.Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
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CRIMINAL MISC. APPLICATION No. 285 of 2013
(Under Section 482 of Cr.P.C.)
Mohd. Haneef ............ Petitioner
versus
State of Uttarakhand ............ Respondent
Mr. Anant Kumar Agarwal, Advocate, present for the petitioner.
Mr. P.S. Saun, learned AGA, present for the State/respondent.
Hon'ble U.C. Dhyani, J. (Oral)
1. By way of this application moved under Section 482 of the Code of Criminal Procedure, 1973, the petitioner seeks to issue writ in the nature of certiorari for quashing the impugned charge sheet no. 116 of 2011 which pertains to F.I.R. no. 487 of 2010 registered at Police Station Rudrapur, as Case Crime no. 487 of 2010, under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, against the petitioner.
2. An F.I.R. bearing case crime no. 487/2010 was lodged by Ganesh Prasad, Incharge Inspector, Police Station, Rudrapur against six accused persons including the present applicant Mohd Haneef in Police Station Rudrapur, on 10.09.2010 as regards offence punishable under Section 2/3 of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986.
23. According to F.I.R., the accused persons indulged in anti-social activities like theft etc. Accused is a member of an organized Gang of thieves, who are involved in theft of motorcycle and thereby gaining undue pecuniary and material advantage for himself and other members of the gang, to which public feels intimidated. The F.I.R. bearing case crime no. 487/2010 entails the description of number of cases, which are pending against the accused persons. The description of those cases is being given as below:
(i) FIR no.149/10 Under Sections 379/411 IPC.
(ii) FIR no. 447/10 u/s 41/102 Cr.P.C. and 411 IPC.
(iii) FIR no.317/10 u/s 41/102 Cr.P.C. and Sections 411 IPC.
(iv) FIR no. 318/10 u/s 41/102 Cr.P.C. and Sections.
411 IPC. [Against Salim] .............................................
(i) F.I.R. no.316/10 u/s 379/411 IPC. (ii) FIR no. 317/10 u/s 41/102 Cr.P.C. 411.I.P.C. (iii) FIR no 318/10 u/s 41/102 Cr.P.C. and 411 I.P.C. [Against Haneef]
...............................................
(i) FIR no. 316/10 Act 379/411 I.P.C. (ii) FIR no. 317/10 and 318/10 Act, 41/102 Cr.P.C. 411 I.P.C. [Against Mohd Tahir] 3
...............................................
(i) FIR no. 317/10 and 318/10 u/s 41/102 Cr.P.C.
411 I.P.C. [Against Munahiddin] ...............................................
(i) FIR no. 317/10 FIR no. 318/10 Act 41/102 Cr.P.C. 411 I.P.C. [Against Ausaf] ...............................................
(ii) FIR no. 317/10 FIR no. 318/10 Act 41/102
Cr.P.C. 411 I.P.C. [Against Askar]
4. The Court at this juncture is not required to go into the correctness or otherwise of the contents of the FIR. It has to scrutinize at this stage whether the offence complained of against the accused-petitioner comes within the definition of Section 2/3 of the said Act or not? 'Gang' is defined in Section 2 (b) of the Act as under:
"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 of gaining any undue temporal, pecuniary, material or other advantage for himself of any other person, indulge in anti-social activities, namely-
(i) Offence punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or 4
(ii) ..............................
5. It may be pointed out that Chapter XVII of I.P.C. deals with offences against property, which includes theft.
6. It has been held in A.K. Dixit vs. State of U.P., 1987 (24) ACC 164 (FB) that clause (c) of Section 2 defines the word "Gangster" which means a member or leader or organizer of a group which indulges in the kind of activities set out under the various sub-clauses of clause
(b) of Section 2, by use of violence or threat or show of violence or intimidation etc.
7. It was observed by Hon'ble Allahabad High Court in Ajai Rai vs. State of U.P., 1995 (32) ACC 477 : 1995 ALJ 1027 that the term "gangster" has been defined in Section 2 (c) and means a member or leader or organizer of a gang, and includes any person who in the activities of the gang enumerated in clause (b) whether before or after the commission of such activities or harbors any person who indulges in such activity.
8. Whereas the definitions are given under Section 2 of the Act of 1986, the penalties are provided under Section 3 of the said Act.
9. A prima facie case appears to have been made out against the petitioner as regards offence under Section 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. It may be pointed out at this stage that the U.P. law is applicable to the State of Uttarakhand in view of the U.P. Re-organization Act, 2000.
510. It is also the settled law of land that inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified as laid down in the section itself. The extra ordinary power under Section 482 Cr.P.C. should not be resorted to like remedy of appeal or revision. Such power can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the Statute. Factual aspects of the matter can not be gone into by the High Court in exercise of its jurisdiction under Section 482 Cr. P.C.
11. Learned counsel for the applicant submitted that charge sheet against the accused applicant has not been submitted in respect of many FIRs lodged against him. It is to be noted here that the Code nowhere provides the time frame for submission of charge sheet. Another argument which is advanced by learned counsel for the applicant is as regards malice. No document has been offered to show that the police harboured any grudge against the accused-applicant and therefore, it is difficult to believe that the FIRs, or for that matter, present FIR under Section 2/3 of the Uttar Pradesh Gangsters and Anti - Social Activities (Prevention) Act, 1986, was lodged by the Police against the applicant maliciously. There is no substance in the petition under Section 482 Cr.P.C. The same is therefore, dismissed summarily at the threshold.
12. Thereafter learned counsel for the applicant made an innocuous prayer that the court below be directed to decide the bail application of the applicant as 6 expeditiously as possible and without unreasonable delay.
13. The innocuous prayer made by learned counsel for the applicant is acceptable subject to fulfillment of certain conditions.
14. It is accordingly provided that the bail application of the accused applicant in connection with crime under Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, shall be decided by the Special Judge concerned as expeditiously as possible and without unreasonable delay but after affording due opportunity of hearing to the public prosecutor attached to the court. The Learned Special Judge is requested to ensure that the accused furnishes proof of the fact that he has been enlarged on bail by the courts concerned in all those crimes, which have been shown against his name in the 'Gang-Chart', on the basis of which the accused-applicant has been roped in under offence under Section 2/3 Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986,
15. It is however made clear that the observation made by this Court holding that a prima facie case is made out against the accused-petitioner will not influence the court below while deciding the case on merits. Stay Application No.376 of 2013 also stands disposed of.
(U.C.Dhyani,J.) 03.04.2013 Anand 7