Kamal Singh vs State Of U.P. & 2 Others
2013 Latest Caselaw 3467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 55
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 11075 of 2013
 

 
Petitioner :- Kamal Singh
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- B.N. Siangh,Manish Singh,Santosh Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Anil Kumar Agarwal,J.

Heard Sri B.N. Singh and Sri Santosh Singh, learned counsel for the petitioner, learned A.G.A. for the State of U.P.

This petition has been filed on behalf of the petitioner Kamal Singh with the following prayer;-

(1) Issue  a issue a writ, order or direction in the nature of certiorari quashing first information report dated 18.04.2013 in Case Crime No. 821 of 2013, under Section 2.3 Gangster Act, Police Station Kotwali Orai, District Jalaun (Annexure No. 1).

(2) Issue a writ order or direction in the nature of prohibition prohibiting respondents to drop the proceeding initiated again against the petitioner through Case Crime No. 821 of 2013, under Section 2.3 Gangster Act, P.S. Kotwali Orai, District Jalaun.

(3) Issue a writ order, order or direction in any other nature, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(4) Award the cost of the petition to the petitioner.

The above mentioned prayer is sought on following grounds;-

(i) Because the petitioner has been arrested on 27.06.2012 by police of police station Madhogarh District Jalaun in Case Crime No. 342 of 2012, under Sections 307 I.P.C. and 12/14 D.A.A. Act and sent him to jail and has not been released on bail since then and also has not committed any offence.

(ii) Because the petitioner is being prosecuted through Special Case No. 07 of 2013, State of U.P. Vs. Kamal Singh and others, under Section 2/3 Gangster Act which allegedly was committed by them before 27.06.2012 and since then the petitioner and others have not allegedly committed any other offence, hence no other case under Section 3/4 Gangster Act is made out against the petitioner.

(iii) Because the respondent no. 3 has lodged the impugned F.I.R. in violation of Article 20(2) of Constitution of India against the petitioner and others.

(iv) Because the petitioner is illegally detained in Case Crime No. 821 of 2013, under Section 2/3 Gangster Act, Police Station Kotwali Orai, District Jalaun.

(v) Because not any person may be prosecute in twice for a offence and the respondents have detained in jail and started prosecution of the petitioner for the same offence about which he is already being prosecuted.

It is further submitted by the learned counsel for the petitioner that the impugned F.I.R. in Case Crime No. 821 of 2013, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 has been lodged at police station Kotwali Orai, District Jalaun, the same may not be lodged because under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, the F.I.R. in Case Crime No. 629 of 2012 under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act was already lodged at police station Madhogarh, District Jalaun on 30.09.2012 at 2:10 a.m. If a person is said to be 'gangster' according to the definition given in Section 2(c) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, the F.I.R. on this basis against him may be lodged once but another F.I.R. may not be lodged. In the present case the impugned F.I.R. is the second F.I.R. for the same charge which is barred under the law. The impugned F.I.R. has been lodged when the petitioner was detained in jail in Case Crime no. 629 on 2012, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. The impugned F.I.R. has been lodged with the ulterior motive, the petitioner is in jail since 27.06.2012. In such circumstances, the impugned F.I.R. and its investigation may be quashed.

In reply of the of the above contention, it is submitted by the learned A.G.A. that the petitioner is also involved in Case Crime No. 629 of 2012, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 which has been lodged at police station Madhogarh on 30.09.2012 at 2:10 a.m., on the basis of the allegations made therein, in its Gangchart, four cases have been shown against the petitioner as;

(i) Case Crime No. 342 of 2012, under Sections 307 I.P.C. & 12/14 U.P. Dacoity Affected Areas Act, P.S. Madohgarh, District Jalaun, Crime No. 343 of 2012, under Section 3/25 Arms Act and connect Crime No. 344 of 2012, under Section 3/25 Arms Act, P.S. Madhogarh, District Jalaun;

(ii) Crime No. 77 of 2012, under Sections 379/411 I.P.C., P.S. Rampura, District Jalaun;

(iii) Crime No. 297 of 2012, under Sections 379/411 I.P.C., P.S. Konch, District Jalaun;

(iv) Crime No. 1172 of 2012, under Sections 379, 411 I.P.C., P.S. Kotwali Orai, District Jalaun. The Gangchart forwarded by officer incharge of P.S. Madhogarh, District Jalaun through Circle Officer, Jalaun, S.D.M., Madhogarh and Additional S.P., Jalaun, has been approved by the S.P. and D.M., Jalaun. The impugned F.I.R. has been lodged at police station Kotwali Orai in Case Crime No. 821 of 2013, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, on the basis of allegation made therein and the cases shown in the Gangchart against the petitioner, according to the Gangchart the following cases have been shown -- as Case Crime No. 1573 of 2013, under Sections 379/411 I.P.C., P.S. Orai, District Jalaun in which the charge sheet has been submitted, Crime No. 1280 of 2012, under Sections 379/411 I.P.C., P.S. Orai, District Jalaun in which charge sheet has been submitted and Case Crime No. 1296 of 2012, under Sections 379/411 I.P.C., P.S. Orai, District Jalaun. The gangchart has been approved by S.P. Jalaun and District Magistrate, Jalaun. In the impugned F.I.R. three cases in which the petitioner is allegedly involved, have been committed in territory of P.S. Orai, District Jalaun. All these three cases are not mentioned in the Gangchart of Case Crime No. 629 of 2012, P.S. Madhogarh, District Jalaun. The impugned F.I.R. has been lodged on the basis of the activities committed by the petitioner in territory of police station Kotwali Orai, District Jalaun. All these three cases shown in the Gangchart of the impugned F.I.R. have not been considered for lodging the F.I.R. of Case Crime No. 629 of 2012, P.S. Madhogarh, District Jalaun and the lodging the impugned F.I.R. is not barred by any law. The allegations made in the impugned F.I.R. are prima facie disclosing the commission of the cognizable offence. The present writ petition is devoid of the merits and the same may be dismissed.

From the perusal of the documents filed along with the writ petition, it appears that the impugned F.I.R. has been lodged against the petitioner on 18.04.2013 at 1:15 p.m., under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 at P.S. Kotwali Orai, District Jalaun, for lodging the impugned F.I.R. proper procedure has been adopted and after obtaining the order of the approval from the District Magistrate, the impugned F.I.R. has been lodged. The Gangchart has filed along with the impugned F.I.R. showing three criminal cases in which the petitioner has been charge sheeted, all the three criminal cases are not shown in the Gangchart of Case Crime No. 629 of 2012, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, P.S. Madhogarh, District Jalaun in which also, the petitioner has been charge sheeted. In the Gangchart of Case Crime No. 629 of 2012, four cases have been shown against the petitioner, any of the criminal cases shown against the petitioner in the Gangchart of Case Crime No. 629 of 2012, P.S. Madhogarh, District Jalaun, has not been shown in the Gangchart of the impugned F.I.R. both the F.I.R.'s in Case Crime Nos. 821 of 2012 & 629 of 2012 have been registered at different police stations. The Gangster is defined in Section 2(c) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 which reads as under;

"Lodging the F.I.R. for the offence under Section 2/3 U.P. Gangsters and Anti-Social Activities (Prevention) Act 1986.

2(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;

The F.I.R. is lodged about an 'offence' allegedly committed.

For the Section 2(b) (i to xv) is explanatory which reads as under:-

(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 ay 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 manufactuirng or storing or transporting or importing or exporting or selling or distributing any liquor, 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;

The Section 2(b) of the above mentioned Act clearly shows that a group of persons, who acting either singly or collectively involving in the commission of the cases defined therein empowers to lodge the F.I.R., F.I.R. may be lodged on the basis of the action of a person, if it comes under the definition of the above offence. If a person is involved in commission of the activities constituting the above offence in different places, the F.I.R.'s may be lodged against that person at different places, police stations and there is no legal bar to lodge the impugned F.I.R. The F.I.R. for the offence punishable under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 may be lodged at the different police stations on the basis of different activities, such F.I.R. may not called the second F.I.R. Even at the same police station such F.I.R. may be lodged, in case, the person is involved in some other criminal cases which have not been considered in the first F.I.R. lodged under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act. The allegations made in the impugned F.I.R. are prima facie disclosing the offence punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, the offence is cognizable and there is no legal bar in lodging the impugned F.I.R., therefore, there is no ground to interfere in the impugned F.I.R., the prayer for quashing the impugned F.I.R. dated 18.04.2013 and its investigation in Case Crime No. 821 of 2013, under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, P.S. Kotwali Orai, District Jalaun is refused.

According to this observation, this writ petition is dismissed.

Order Date :- 2.7.2013

M/A.