Shivdeep Singh And Another vs State Of U P And 2 Others
2021 Latest Caselaw 10825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6303 of 2021
 

 
Petitioner :- Shivdeep Singh And Another
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Swati Agrawal Srivastava,Mohit Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Ram Krishna Gautam,J.

1. This petition under Article 226 of Constitution of India has been filed by Shivdeep Singh and Arvind Patel with a prayer for issuing writ, order or direction in the nature of certiorari, quashing the impugned First Information Report dated 13.10.2020 of Case Crime No. 999 of 2020, under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, of Police Station Soraon, District Prayagraj, with a further prayer of issuing writ of mandamus, commanding respondent No. 2, Station House Officer, Police Station Soraon, District- Prayagraj, not to arrest or harass the petitioners in pursuance to impugned FIR.

2. Learned counsel for the petitioners argued that FIR of Case Crime No. 999 of 2020, was registered at Police Station Soraon, upon the report of Ram Charan Verma- opposite party No. 3, a police constable of Police Station- Soraon, District Prayagraj, against K.L. Patel @ Krishna Lal Patel and 11 others for offences punishable under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, with this contention that a gang chart, previously approved, having mention, that K.L. Patel @ Krishna Lal Patel s/o Ram Nihor Patel, R/o Kapsa, Baharia, Prayagraj, was operating as a gang under his leadership and committing offences of deceit and fraud by way of manufacturing and fabricating forged and fictitious documents and securities with the help of other accused members of his gang and make money by those fraudulent documents and deceits from unemployed youth on the statement and assurance of getting them job at different levels. Those named 11 accused persons under leadership of gang leader K.L. Patel @ Krishna Lal were operating as above offenders. Case crime No. 426 of 2020, under Section 406, 419, 420, 467, 468, 471 IPC read with Section 66-D of I.T. Act was registered at Police Station Soraon and the offence was of offences given under Chapter XVII of Indian Penal Code. Hence, as they were committing fraud with aspirants, competitioners of various examinations and coercing by way of getting money from them, coming within a purview of offences enumerating under Section 2 of Act No. 7 of 1986. Hence, this offence under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, was got registered. Whereas, petitioners were neither named in First Information Report nor were of any concern with above offence of Case Crime No. 426 of 2020. It was a single case, on the basis of which, this case crime number under Act No. 7 of 1986 was got registered. It was under misuse of process of law. Hence, this petition with above prayer.

3. Learned counsel for the petitioners argued that this Court in Criminal Misc. Writ Petition No. 5695 of 2021 (Anil Kumar Maurya Vs. State of Uttar Pradesh), vide order dated 24.8.2021 has given interim protection against arrest in the same type of offence. The coordinate Division Bench of this Court in Criminal Misc. Writ Petition No. 2705 of 2021 (Mohit @ Alok Srivastava Vs. State of Uttar Pradesh & 3 others), vide order dated 28.7.2021 had given interim protection against arrest, in the same type of case. Hence, protection has been claimed.

4. Per contra, Ms. Archana Singh, learned A.G.A.-I has vehemently opposed with this contention that this Court in Criminal Misc. Writ Petition No. 5695 of 2021 (Anil Kumar Maurya Vs. State of Uttar Pradesh), has not given any interim protection on the basis of merit. Rather, in Criminal Misc. Writ Petition No. 2705 of 2021, interim protection was granted by another Coordinate Division Bench of this Court and matter is pending, wherein, instructions and counter was invited. Hence, this Court has connected this Criminal Misc. Writ Petition No. 5695 of 2021, with above previously interim protection granted Criminal Misc. Writ Petition No. 2705 of 2021 and the same protection was granted. But so far as the present case in hand is concerned, the fact of present case is entirely different. There is no provision that case under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, may not be registered on the basis of single criminal antecedent. Rather, the condition precedent is that the ingredient for registration of case under above Act ought to be fulfilled as per definition of "gangster" given in Section 2 (c) and "gang" given under Section 2 (b) of Act. The offence for which this Act is in effect are given in Section 2 (b) (I):- "offences punishable under Chapter XVI or Chapter XVII or Chapter XVIII of the Indian Penal Code (Act No. 45 of 1860), or ....(i.e. ii to xv). Hence, as has been propounded by Division Bench of this Court in Criminal Misc. Writ Petition No. 4622 of 2019 (Somvir Vs. State of U.P. and 2 others), the point of single offence as a basis for registering a case under Act No. 7 of 1986 is of no effect. Rather, the condition of offences given under Section 2 (b) (i) to (xv) of Act, being committed by gang or member of gang amounting to gangster i.e. defined in Sub- Section (c) of Section 2 of the Act. Hence, in the present case offence against petitioners are within above category of offences and gang with its gang leader and members have been committing these offences for which this registration of case crime number is there. Hence, no indulgence is required.

5. Having heard learned counsel for both sides and gone through the material placed on record, it is apparent that the fact involved in Criminal Misc. Writ Petition No. 5695 of 2021 as well as Criminal Misc. Writ Petition No. 2705 of 2021 (supra) are different than the fact of case in hand and interim protection granted against arrest in those two petitions are on the basis of those facts involved in those cases subject to filing of instructions, hearing and disposal on merit. Both of those petitions were connected together. Hence, interim protection which was previously granted by coordinate Division Bench was made applicable in subsequent petition by this Court. Hence, the very argument of learned counsel for the petitioners with regard to those two cases are of no avail.

6. As has been propounded by Division Bench in Criminal Misc. Writ Petition No. 4622 of 2019 (Somvir Vs. State of U.P. and 2 others) as well as in many judgments by this Court that even a single case, if fulfills the category of offences given under Section 2(b) (i) to (xv) of Act and is being committed by gang defined under Section 2 (b) or gangster defined under Section 2 (c) of the Act may be basis for registration of case crime number for offence punishable under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Though, learned counsel for the petitioners did concede over this point and argued that it is a settled principle of law and is with no dispute.

7. The accusation levelled against petitioners in Case Crime No. 426 of 2020, under Section 406, 419, 420, 467, 468, 471 IPC read with Section 66-D of I.T. Act, Police Station- Soraon, District- Prayagraj, is of offences given under Chapter Nos. XVI, XVII, XVIII of Indian Penal Code i.e. offences enumerated under Section 2(b) (i) to (ii) of the Act. The charge-sheet has been filed. It was a deceit, fraud, manufacturing and fabricating of forged and fictitious documents by above alleged gang, under leadership of K.L Patel @ Krishna Lal Patel and other persons, named in first information report, wherein, accomplishment of present petitioners are shown in above offence in case diary of recovery memo. Charge-sheet against petitioners have been filed, which is at Page No. 54 to 56 of paper book.

8. So far as legal position regarding quashing of F.I.R. is concerned, in the case of R. Kalyani v. Janak C. Mehta and Others reported in 2009 (1) SCC 516 wherein the Hon'ble Apex Court has held as under:

"(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."

The said decision has also been followed by the Apex Court in the case of Kamlesh Kumari and Ors. v. State of U.P. and Ors. reported in 2015 AIR SCW 3700.

The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases."

9. Hon'ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, AIR 2021 SC 1918, has further reiterated above principle.

10. The statements raised by learned counsel for the petitioners called for determination of question of fact, which may be adequately discerned either through proper investigation or it may be adjudicated upon only by the trial Court and even the statements made on points of law can also be more properly gone into by the trial Court in case charge-sheet is submitted in this case. The perusal of record makes out prima facie offence at this stage and there appears to be sufficient ground for investigation in the case. This Court did not found any justification to quash the FIR or proceeding against the accused-petitioners arising out of above case crime number as the case does not fall in all the categories recognized by the Apex Court, which may justify their quashing.

11. The writ petition is accordingly, dismissed.

Order Date :- 25.8.2021

Kamarjahan