Rohit Singh vs State Of U.P.
2016 Latest Caselaw 2113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23 
 

 
Case :- U/S 482/378/407 No. - 2478 of 2016
 

 
Applicant :- Rohit Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Rajendra Prasa Mishra,Raghvendra Singh
 
Counsel for Opposite Party :- Govt. Advocate,I P Singh
 

 
Hon'ble Sudhir Kumar Saxena,J.

This petition has been preferred challenging the order dated 02.04.2016 passed by the  Additional Sessions Judge/FTC, court no. 1, Gonda in S.T. No. 84/15 arising out of crime no. 254/14, under Sections 147, 148, 149, 302/34 IPC relating to P.S.- Wazirganj, District Gonda, whereby the application moved by the petitioner for keeping in abeyance the proceedings of S.T. No. 84/15 in view of Section 12 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act has been rejected.

Heard Sri Jyotindra Mishra, Senior Advocate, assisted by Sri R.P. Mishra, learned counsel for the petitioner, Sri I.P. Singh, learned counsel for private respondent, Sri Rishad Murtaza, learned Government Advocate and Sri L.P. Mishra, Amicus Curiae.

Submission of learned counsel for the petitioner is that Section 12 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act mandates that all other cases against the accused charge-sheeted under the Gangsters Act will have to be placed in abeyance and trial under this Act by Special Court shall have precedence. For the sake of ready reference, Section 12 of the Act is being reproduced below :-

"Trial by Special Courts to have precedence.- The trial under this act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance."

Validity of this section has been upheld by Hon'ble Apex Court in the case of Dharmendra Kirthal vs. State of U.P. [(2013) 8 SCC 368].

Sri L.P. Mishra placed paragraphs 32 & 43 of the judgment, which is being reproduced below :-

" 32. The  present provision is to be tested on the touchstone of the aforesaid constitutional principle. The provision clearly mandates that the trial under this Act of any offence by the Special Court shall have precedence and shall be concluded in preference to the trial in such other courts to achieve the said purpose. The legislature thought it appropriate to provide that the trial of such other case shall remain in abeyance. It is apt to note here that "any other case" against the accused in "any other court" does not include the Special Court. The emphasis is on speedy trial and not denial of it. The legislature has incorporated such a provision so that an accused does not face trial in two cases simultaneously and a case before the Special Court does not linger owing to clash of dates in trial. It is also worthy to note that the Special Court has been conferred jurisdiction under sub-section (1) of Section 8 of the Act to try any other offences with which the accused may, under any other law for the time being in force, have been charged and proceeded at the same trial.

43. The next submission of the learned counsel is that it is in the nature of preventive detention as is understood under Article 22(4) f the Constitution of India. The said contention is to be take note of only to be rejected, for the concept of preventive detention is not even remotely attracted to the arrest and detention for an offence under the Act."

Sri L.P. Mishra as amicus curiae has assisted the Court placing the judgment given in the case of Shashi Gupta vs. State of U.P. & Ors.,  in that case, Hon'ble Apex Court has stated as under :-

"We have seen the provisions of Sections 7 & 8 of the Gangsters Act. In our opinion, these provisions do not mean that if a case is already started under the provisions of the Indian Penal Code and has proceeded to some extent, then if a case under the Gangsters Act has been initiated on the same facts, then it must be transferred to the Special Court under the Gangsters Act. If this submissions is accepted then a large number of cases will be thus delayed and frustrated".

In the case of Mobin Iftikhar Zaidi vs. State of U.P. & Ors., Hon'ble Rajesh Dayal Khare, J. has observed that,  "The legislative intention was not that the proceedings of other offences must be kept in abeyance till conclusion of trial under the Gangsters Act.

Relevant part of the judgment is being reproduced below :-

"A perusal of the aforesaid provision reveals the legislative intent behind the said provision and its object was that the trial under the Gangsters Act should be given preference and the same should not get unduly delayed because of pendency of other cases in other courts. The legislative intention was not that the proceedings of other offences must be kept in abeyance till conclusion of trial under the Gangsters Act. Its intent was that the dates fixed in the other trials and in the case under the Gangsters Act should not clash together, in order to ensure that the trial under the Gangsters Act does not get unduly delayed or hampered with and reaches to its logical conclusion at the earliest. It can not be the intention of the legislature that if a person is required in other cases in crimes of such henious nature such as murder, dacoity, loot and rape etc, the trial of those offences should not proceed further till conclusion of trial under Gangsters Act. In view of the above, it is clear that the legislative intent is that the trial under the Gangsters Act need be given preference to other trial."

Sri Rishad Murtaza, learned Government Advocate has placed before this Court Sections 7, 8 & 12 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, and would submit that these provisions have to be read together, as such, case from the regular court can be transferred to special court and special court can utilize the evidence recorded under the trial.

Sections 7 & 8 of the Act is being reproduced below :-

"7. Jurisdiction of Special Courts-(1) Notwithstanding anything contained in the Code, were a Special Court has been constituted for any local area, every offence punishable under any provision of this Act or any rule made thereunder shall be triable only by the Special Court within whose local jurisdiction it was committed whether before or after the constitution of such special Court.

(2) All cases triable by a Special Court, which immediately before the constitution of such Special Court were pending before any Court, shall on creation of such Special Court having jurisdiction over such cases, stand transferred to it.

(3) Where it appears to any court in the course of any inquiry or trial in respect of any offence that the case is one which should be 'red by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court and thereupon such case shall be tried and disposed of by the Special Court in accordance with the provisions of this Act:

Provided that it shall be lawful for the Special Court to act on the evidence, if any, recorded by the Court in the case in the presence of the accused before the transfer of the case under this section:

Provided further that if the Special Court is of opinion that further examination of any of the witnesses whose evidence is already recorded in the case is necessary in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, it any, as it may permit, the witness shall be discharged.

(4) The State Government may, if satisfied that it is necessary or expedient in the public interest so to do, transfer any case pending before a Special Court to another Special Court.

8. Power of Special courts with respect to other offences.- (1) When trying any offence punishable under this Act a Special Court may 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.

(2) If in the course of any trial under this Act of any offence, it is found that the accused has committed any other offence under this Act or any rule thereunder or under any other law, the Special Court may convict such person of such other offence and pass any sentence authorized by this Act or such rule or, as the case may be, such other law, for the punishment thereof."

Sri I.P. Singh, learned counsel would submit that charge under the Gangsters Act is not framed as yet. While in the murder trial, two witnesses have been examined and one witnesses of fact remains to be examined, as such, purpose of moving application under Section 12 of the Act is to stall the progress of murder trial which is going on in pursuance of order passed by this Court. This has never been the intention of legislature to stay the trial of murder case.

From the above discussion, it emerges that intention of legislature behind enacting Section 12 is that case under the Gangsters Act should not be delayed. Other cases can go on but clash of dates has to be avoided and for this purpose 'kept in abeyance' would mean that if dates are common then case under the Gangsters Act will get precedence.

If cases under the IPC or other Acts have been the basis for slapping Gangsters Act then all the cases can be tried by Special court. It will save valuable time of court apart from ridding prosecution of its burden of producing same evidence repeatedly in different courts.

Moreover, Section 7 enables Special court to utilize the evidence recorded during trial. A joint reading of Sections 7, 8 & 12 is a complete answer to such problems as has arisen in the case. Transfer can be effected by High Court as well as by Special court  and effort should be to try regular trials with special case filed under the Gangsters Act.

This Court is in respectful agreement with the view of Hon'ble Rajesh Dayal Khare, J. If the interpretation is given that till the conclusion of trial under the Gangsters Act all other cases have to be placed in abeyance, then a chaotic situation may arise and accused may manage a case under the Gangsters Act to have, all other cases, wherever they are pending stayed. Every criminal case is important and needs to be decided expeditiously.

Consequently, this Court is of the firm opinion that all trials against the accused cannot be kept in abeyance till conclusion of trial under the Gangsters Act. The only care to be taken by the courts is that there should not be any clash of dates so that case under the Gangsters Act is not be delayed.

In the case at hand, a report was lodged under Sections 147, 148, 149, 302/34 IPC and on the basis of the case, accused persons have been challaned under the Gangsters Act. Then it is a fit case where Sections 7 & 8 of the Act should be employed.

S.T. No. 84/15 arising out of crime no. 254/14, under Sections 147, 148, 149, 302/34 IPC relating to P.S.- Wazirganj, District Gonda, pending before Additional Sessions Judge, Court no. 1, Gonda is transferred to the court of Special Judge, Gangsters Act, where 10.5.2016 is the next date.

On the next date, Special Court will frame the charges and will try both the cases together.

It will be open to the Special Judge, Gangsters Act to utilize the evidence recorded in regular trial, in view of the proviso to Section 7 of the Act.

Since there is already a direction of this Court, I direct Special court to conclude the trial expeditiously, if possible within a period of three months from the date of production/receipt of certified copy of this order.

With the above direction, petition stands disposed of.

Order Date :- 2.5.2016

Nitesh