Rajje Miya @ Rajjan Khan And 4 ... vs State Of U.P. And 2 Others
2017 Latest Caselaw 4755 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- Criminal Misc. Writ Petition No.18828 of 2017
 

 
Petitioner :- Rajje Miya @ Rajjan Khan and 4 others
 
Respondent :- State of U.P. and 2 others
 
Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan,W.H. Khan
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

( Delivered by Hon'ble Krishna Singh, J.)

Heard learned counsel for the petitioners and the learned AGA.

This writ petition has been filed for quashing of the First Information Report lodged in Case Crime No.180 of 2017, under Section 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 ( for short 'the Gangster Act'), Police Station Bara, District Allahabad, inter alia, on the ground that the Mines and Minerals (Development and Regulation) Act, 1957 ( for short 'the Mines and Minerals Act') is not covered under the Act and also that the nature of activity in which the petitioners are involved, can not come under the ambit of the Gangster Act.

Learned counsel for the petitioners has submitted that Sections 379/411 IPC are not applicable and, therefore, if any act has been committed under the Mines and Minerals Act, then the provisions of the Gangster Act are not attracted to the definition provided under Section 2 of the Gangster Act.

The definition of the aforesaid Section has been enumerated in clause 2(b) of the Gangster Act, wherein it has been said that 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. If we take the activity of the petitioners in the light of that definition, then we find that act of the petitioners in indulging into the illegal mining activity and thereby excavating the gravel with otherwise than contemplated under law. The right to carry out mining activity is regulated by the provisions of the Mines and Minerals Act and for mining, a particular person has to obtain licence and to pay royalty to the Government and only thereafter he is entitled to enter into mining activity. The mining activity without any licence and excavating the gravel in a stealthily manner

and thereby selling it to the persons for an amount for which he would be gaining pecuniary, material or other advantage for himself is illegal. Therefore, submission of the learned counsel for the petitioners that the illustrations enumerated under Section 2(b)(i) to (v) of the Gangster Act do not contemplate any offence committed under the Mines and Minerals Act, cannot be accepted as the illustrations which have been given in the aforesaid Section are illustrative in nature and they have to be interpreted in such manner that it curbs the mischief which is prevailing in the society. If restricted meaning is given in the illustrations enumerated under Section 2(b) of the Gangster Act, then a person getting the benefit of advantage of illegal mining could not be fastened under the Gangster Act.

Section 2(b)(iii) of the Gangster Act provides that "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".

The aforesaid definition goes to indicate that property under the Mines and Minerals Act was being removed unlawfully than in accordance with law. Apart from it, the FIR also contained Sections 379/411 IPC and the aforesaid Sections fall under Chapters XVI, XVII and XXII of the Indian Penal Code and the commission of crime under Sections 379/411 IPC is covered under Section 2(b)(i) of the Act, which reads as under :-

"(i) offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code(Act No.45 of 1860)"

Learned counsel for the petitioners has relied upon certain case laws to put forward his claim that in respect of activity of the petitioners, provisions of the Gangster Act would not be attracted. In support of which he has placed reliance upon the decision rendered by the apex Court in the case of N. Sengodan v. State of Tamil Nadu, through Secretary to Government, Home (Prohibition and Excise) Department, Chennai and others, (2013) 8 SCC 664.

In paragraph 40 of the aforesaid case, a specific finding has been recorded to the effect that the respondents therein have failed to bring on record the evidence to show that the appellant was engaged, or was making preparations for engaging, in any of his activities as a "goonda" which may affect or are likely to affect adversely the maintenance of public order. There is nothing on record to suggest that the appellant, who either by

himself or as a member of or leader of a gang habitually committed, or attempted to commit or abetted the commission of offence punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Penal Code.

Here in the case in hand, the aforesaid position is not existing and the FIR goes to indicate that the petitioners have indulged into unlawful mining activity and excavating the gravel in a stealthily manner. If the gravel was being removed in a stealthily manner, then certainly the provisions of Sections 379/411 IPC would be applicable. The FIR specifically goes to indicate that the people are not coming forward to give evidence against the petitioners, which itself is indicative of the fact that the public peace is disturbing.

A Division Bench of this Court in the case of Kishan Pal @ K.P. Etc. Etc. v. State of U.P. and another, 2006 (2) ADJ 141 (All)(DB) has held that even on the basis of a single case, a person can be challaned under the Gangster Act. The Division Bench followed the ratio of law laid down by a Division Bench of this Court in the case of Rinku alias Hukku v. State of U.P. and another, 2000 All LJ 1035. In the case of Ashok Rai and another v. State of U.P. and others, 1995 (25) ALR 423, the same proposition of law was laid.

Learned counsel for the petitioners has also relied upon a judgment of the apex Court rendered in the case of Ashfaq khan and another v. State of Uttar Pradesh and others, (2008) 11 SCC 143. The aforesaid case relates to cheating in respect of the tax evasion and in those very special circumstances, it was held that the provisions of the Gangster Act were not applicable. But so far the present case is concerned, as we have already stated that the provisions of the Gangster Act are applicable looking to the nature of the activity in which the petitioners are involved.

In the case of Vijay Kumar Pathak v. State of U.P. and others, 2010 (71) ACC 864, a Division Bench of this Court proceeded to quash the FIR on the ground that there was no allegation with respect to commission of any kind of offence which comes within the parameters of Gangsters Act, but we find that no such condition is existing in the present case.

In the case of Ram Raheesh and another v. State of U.P. and others, 2011 (73) ACC 559, the writ petition was disposed of finally by a Division Bench of this Court with the direction that arrest of the petitioners

shall remain stayed till cogent and credible material showing the complicity of the petitioners is collected, only on the ground that there was interpolation in the gang chart and it was approved in a mechanical manner by the District Magistrate.

In the present case, the petitioners have been involved in the illegal mining activity and such activity has been very rampant in the State of U.P. on account of which the State resources are being exploited to a large extent. This Court has even intervened to the extent of passing an order for CBI inquiry into the illegal mining activity in the State.

Looking to the state of affairs prevailing in the State and looking to the nature of rampant illegal mining prevailing in the State, we are not inclined to interfere in the matter.

The writ petition is devoid of merit. It is accordingly dismissed.

However, it is provided that the bail application moved by the petitioners shall be considered and decided by the court below expeditiously.

				( Krishna Singh, J.)         ( S.S. Chauhan, J.)
 

 
Order Date :- 21st September, 2017
 
Rao/-