Santosh Batham vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 6820 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 9
 

 
Case :- MISC. BENCH No. - 13298 of 2021
 
Petitioner :- Santosh Batham
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home,Lko.& Ors.
 
Counsel for Petitioner :- Amit Chaudhary,Pradeep Tiwari,Sonu Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vikas Kunvar Srivastav,J.

(As per Hon'ble Vikas Kunvar Srivastav, J.)

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India, with a prayer to issue writ of Certiorari or direction in the nature of Certiorari to quash the first information report bearing no.0165/2021, under Sections 2/3 of Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act which shall hereinafter be referred as 'Gangster Act' only for the purpose of brevity and convenience.

2. The matter is to be heard before this Court as fresh for hearing through virtual mode. Learned counsel for the petitioner Sri Amit Chaudhary, Advocate and learned A.G.A. for and on behalf of the State Ms. Nand Prabha Shukla, Advocate appear through video conferencing. Heard the learned counsels and perused the record.

3. For the purpose of easy reference, the relief sought in the petition is reproduced hereunder from the prayer part of the petition.

"i) issue a writ of Certiorari or a writ order or direction in the nature of Certiorari to quash the impugned F.I.R. No.0165/2021 Under Sections 2/3 Uttar Pradesh Gangster and Anti-social Activities (Prevention) Act, 1986 Police Station- Ganga Ghat District Unnao, Annexure No.1 to this writ petition.

ii) issue a writ of Certiorari or a writ order or direction in the nature of Certiorari to quash the Gang Chart."

4. Consequent upon the aforesaid two main reliefs, an ancillary relief is also sought to issue the writ or direction in the nature of Mandamus commanding the opposite parties not to arrest the petitioner in pursuance to impugned first information report.

5. The petitioner-accused is arraigned alongwith two other co-accused in F.I.R. No.0165/2021 Under Sections 2/3 Uttar Pradesh Gangster and Anti-social Activities (Prevention) Act, 1986 Police Station- Ganga Ghat District Unnao, hereinafter referred as "Gangster Act".

6. The first information report and the gang chart prepared therein is made annexure no.1 to the petition which discloses that the Police Station Ganga Ghat, District Unnao has lodged the impugned First Information Report under Section 2/3 of Gangster Act against the petitioner alongwith two others namely 'Birbal Gujrati' S/o Gangaram R/o 14/7, Champapurva, Ganga Ghat, Unnao, Uttar Pradesh who is assigned the role of gang leader and 'Ram Surat Pandey' S/o Jagdish Prasad, R/o 15/232, Shakti Nagar, Shukla Ganj, Ganga Ghat, Unnao, Uttar Pradesh as member of the gang.

7. The perusal of gang chart shows that Santosh Batham, the petitioner is indulged in Case Crime No.97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao.

8. It is also reported that in aforesaid case, charge sheet has already been filed in the trial court on 26.12.2018. In the impugned first information report under Gangster Act, it is reported that the gang leader Birbal Gujarati alongwith his companions and members of gang do the offences to earn for themselves physical and financial gains and basic benefits, grabbing the possession of the land and threaten life and property to the affected person or anyone else if they protest. The manner of commission of their offence is very henious.

9. It is further reported in the first information report that for the reason of committing heinous crime by them as defined in Chapters XVI, XVII and XXII of the Indian Penal Code, 1860 in District Unnao, there is so much fear and terror in the public mind that any person amongst the public has no courage to testify against them. In such a situation, it is not appropriate to let them roam freely.

10. The said first information report in the course of due approval in hierarchy lastly reached to the District Magistrate, opposite party no.3. In their sinonimos opinion as to the report of SHO, they were satisfied with the fact of accused persons' indulgence in crime and their terror in the public. To signify this satisfaction as well to accord approval, District Magistrate also signed the satisfaction recorded to the effect, "I have thoroughly perused the gang chart and resolved that the accused persons shown in the gang chart are an organized gang who are indulged in serious incidents for their economic, material and undue gains, therefore, action under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 are necessary to be taken".

11. Like all other criminal cases instituted against an accused, the prosecution in the present case also is duty bound to initiate investigate and collect the evidence. The investigation culminates into submission of charge sheet. Thereafter charges are framed by the Court providing the opportunity of hearing upon the framing of charges and when the accused are not discharged, the prosecution begins with evidence before the Court competent to try the offences against the accused shown in the gang chart. The incriminating facts in charges are to be testified by prosecution evidence to prove them beyond all reasonable doubt.

12. The defense has to cross-examine the prosecution witnesses so as to test the veracity of the witnesses, this is the only course to assail the case of prosecution as disproved or false, baseless and malafide. Unless the veracity of the prosecution case is tested in the trial, none can speculate, imagine or make a hypotheses of the falsity of the prosecution case. However, on the basis of probability factor, it may be prima facie seen whether the prosecution case is sound or baseless.

13. Hon'ble the Apex Court in a recent judgment of Padma Mishra Vs. State of Uttarakhand & Anr.1 in Criminal Appeal No.20/2010 decided on 13.02.2020, Hon'ble Ms. Indira Banerjee, J. speaking for the Bench, dismissing the Criminal Appeal preferred against order of the High Court rejecting the prayer in Writ Petition to quash the F.I.R. under Section 2/3 of Gangster Act, held:-

"In proceedings under Article 226 of the Constitution of India, the High Court does not adjudicate the correctness of the allegations in an FIR. The Court may only intervene in exceptional cases, if the allegations made in the FIR ex facie do not disclose any offence at all."

14. Before discussing any more in the facts of the case, the legal position as has been laid down by our High Court and Hon'ble the Supreme Court from time to time in various cases should be referred.

15. In the case of R.P. Kapur Vs. State of Punjab2, Hon'ble the Apex Court summarized some category of cases where inherent power can and should be exercised to quash the proceeding, which are as follows:-

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

16. Further in State of Haryana and Ors. Vs. Bhajan Lal and Ors.3 in para 102 some guidelines were formulated relating to the exercise of extra ordinary power of the Court under Article 226 of the Constitution of India from the inherent power under Section 482 Cr.P.C., which are as follows:-

"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

17. In the light of the aforesaid guidelines issued by the Hon'ble Supreme Court, the grounds taken by the petitioner for quashing of the first information report impugned in this petition are to be seen, which are briefed as under:-

i) No case is made out against the petitioner for the offence under Section 2/3 of 'Gangster Act' because of only one single criminal case no. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 r/w Section 3 of Damage To Public Property Act is shown in the gang chart.

ii) District Magistrate in approving gang chart did not apply his mind as no reasons are recorded by him and the lodging of F.I.R. under Gangster Act is malafide.

iii) The petitioner has right to life which include to live with honour and dignity and fundamental right of the Article 21 of the Constitution of India cannot be interfered lightly. The petitioner is apprehending his arrest.

18. Sections 2(b) and 2(c) of the Gangsters Act define as : "gang" and Gangster.

"2(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 any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social Signature Not Verified activities.

2(c)"gangster" means a member or leader or organizer 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."

19. In judgment of Padma Mishra Vs. State of Uttarakhand & Anr. (Supra), Hon'ble the Supreme Court held as follows:-

"The definition of gangster is made in the Gangsters Act and includes any person who is a member or leader or organizer of a gang or abets or assists in the activities of a gang, which includes violence, threat, intimediation, coercion with the object of disturbing public order or of going any undue advantage for himself or any other person."

20. The allegations in the complaint/information are always treated as the basis of prosecution. It is admitted fact that petitioner is indulged in Case Crime No. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao. On perusal of the first information report, there is clear mention of the aforesaid case and some other cases against the other members of the gang in addition to their indulgence in activities of the like nature is also stated. Their terror and fear in the mind of the public of the locality is also stated by reason of committing offence of land grabbing, taking forcible possession of the land. Their terror is so much that no person from the public has courage to testify against them. The Court without assessing the genuineness and substantive proof supporting the allegations is to consider whether the allegations leveled are possible and they if taken at their face value and accepted in their entirety constituted the cognizable offence.

21. Here in the present case, the allegations in the first information report seems probable as criminal cases of like nature already registered against the members of group and they are reported indulged in criminal activities of like nature. It is established law as laid down by Hon'ble the Supreme Court and High Courts that while examining the first information report/complainant, quashing of which is sought, the Court could not embark upon the enquiry as to the legality or genuineness or otherwise of the allegations made in the FIR/Complaint.

22. The first ground raised for quashing of the F.I.R. has already been decided by our High Court in a Division Bench in Criminal Writ Petition No.835 of 1998 decided on 24.03.1998 in the case of Subhash; Gulab Singh; Anish Vs. State of U.P. and Anr.4

23. Before the Devision Bench of this Court, the issue was raised, "There could not be prosecution under the Act for a single incident as the Act spoke of Anti Social Activities. The Devision Bench referred another Full Bench case of Ashok Kumar Dixit Vs. State of U.P.5 at para 22, wherein the object and reason behind the enactment of Gangster Act was quoted. The same is as under:-

"gangsters and anti-social activities were on the increase in the State posing threat to lives and properties of the citizens. The existing measures were not found effective enough to cope with this new menace. With a view to break the gangs by punishing the gangsters and to nip in the bud their conspiratorial designs it was considered necessary to make special provisions for the prevention of, and for coping with gangsters and anti-social activities in the State"

24. The preamble of the Act was also quoted as below:-

"an Act to make special provisions for the prevention of, and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto".

25. While holding the constitutional validity of the various provisions of the Gangster Act, the Court was of the view that under this Act, a person can be accused of an offence only if he had chosen to join a group which indulged in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The element of actuaries was clearly present in the offence created under the statute, as observed by the Full Bench.

26. The Full Bench further observed in paragraph 60 of the judgment that under the ordinary criminal law, it was some times difficult to bring to book the over lords of crime and under world because they seldom operated in person or in public gaze. They indulged in clandestine operations which threaten to tear apart the very fabric of the society. In the immediate next paragraph again a note of caution was sounded by the Full Bench ob serving "provisions of the Act cannot be used as a weapon to wreck vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts. The prosecution has to bear in mind that it has to bring home the guilt.

27. On the basis of above discussions, now it is established by law that a person even for a single incident may be prosecuted under the Gangster Act.

28. So far as the second ground raised by the petitioner against first information report as to the District Magistrate did not apply it's mind before granting approval to the gang chart is concerned, it seems not correct. In the first information report and the gang chart made annexure by the petitioner himself, it is categorically stated that the petitioner alongwith other co-accused are found indulged in various offences of serious nature and thus there is terror and fear in the mind of public. They are found indulged in the crime in organized manner in the incident of grabbing land forcibly, evicting people from their house. In substance, the first information report contains the allegations that the petitioner and the others are taking recourse of public threats and coercion including physical violence to gang the voices of witness in cases against them. The criminal case shown in the gang chart against the present petitioner as well as his companions, the group members and leader of the gang is evident of this opinion. It is also noteworthy that the gang leader and other members of the group are involved in other offences of like nature shown in the gang chart.

29. It was observed in the Ashok Kumar Dixit Vs. State of U.P. (Supra) that a person was not liable to be punished under the Act merely because he happened to be a member of the group. The Court was, rather, of the view that a person could be accused of an offence only if he had chosen to join a group which indulges in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The Court was of the view "the element of actuaries is hence clearly present in the offence created under the statute. " Whereon any act or omission covered by Sections 2 and 3 of the Act is reported an offence is made out and as a corollary it may be indicated without any fear of contradiction that unless an allegation is there concerning an act or omission on the part of an accused, covered by the definition of the term "gang" or "gangster", no F. I. R. should be maintainable. Whether the al legations are true or false will be a matter for investigation, but unless the allegations of an offence under the Act are indicated, an F. I. R. may not be justifiable whatever large the number of past acts be alleged against him.

30. In the present case, the first information report and the gang chart, as such, allegations, as indicated in the decision of the Full Bench in Ashok Kumar Dixit Vs. State of U.P. (Supra), the apprehension is clearly recorded by the police officers whereupon the District Magistrate after perusal approved the gang chart and first information report, therefore, it can not be said that while approving, the District Magistrate did not apply his mind.

31. In Neeharika Infrastructure Pvt. Ltd. vs. State of Maharastra and Ors.6, it is held by Hon'ble the Supreme Court in the concluding para of the judgment that police has the statutory right and duty in the relevant provision of the Code of the Criminal Procedure, contains in Chapter XV of the Code to investigate into cognizable offence.

32. Lodging of the first information report, precedes the investigation as provided under Section 154, 155, 156 and 157 of the Cr.P.C. The Station House Officer of Police Station is under duty to reduce into writing, the information given by the informant/victim or as observed by himself into the general diary. The information is not necessary to be much in detail or broad description like encyclopedia rather precise and concise, statements of facts only necessary to disclose the commission of a cognizable offence.

33. At this stage, we can not find out any prima facie assessment of the falsity of the allegations, therefore, in exercise of our extra ordinary power under Article 226 of the Constitution of India, we can not quash the first information on this ground.

34. The argument of learned counsel for the petitioner that the criminal case shown in the gang chart against the name of petitioner placed at serial no.3, is prima facie not found established against the petitioner nor there is any incriminating evidence on the record of the said case against the petitioner is of no avail to assail the instant first information report impugned in the petition.

35. In the aforesaid writ petition, the first information report in Case Crime No. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao, the aforesaid has not been quashed rather the Hon'ble Court has directed the Investigating Officer to conclude the investigation in it's correct perspective and complete the same expeditiously subject to co-operation in investigation by the petitioner, Santosh Batham, his arrest is stayed by the Court.

36. As such mentioning of the Case Crime No. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao in the gang chart, is not baseless, that case is still waiting for decision after a complete course of trial in accordance with the procedure envisaged in the Cr.P.C., therefore, this can also not be a ground of malafide on the basis whereof any material injury is apprehended to the petitioner and, therefore, this ground shall also not be treated sufficient to quash the first information report.

37. So far as the allegations as of malafide is concerned, is also baseless, in every criminal case, prosecution stands on it's own legs with supporting facts and evidences. The petitioner has annexed, annexure no.4, the order of the Co-ordinate Bench of this Court passed on 27.02.2018 in a Writ Petition No.5694 (M/B) of 2018, wherein the quashing of the first information report in Case Crime No. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao was sought, challenging the said F.I.R.

38. The issue of mala fide decided by the Hon'ble Apex Court in State of Haryana Vs. Ch. Bhajan Lal (supra) held as under:-

"At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides." (Emphasis added).

39. In Sheo Nandan Paswan Vs. state of Bihar & Ors.7, the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under:-

"It is well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant." (Emphasis added).

40. Similarly, in State of Bihar & Anr. Vs. J.A.C. Saldanha & Anr.8, Hon'ble the Apex Court has held as under:-

"It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing he offence." (Emphasis added).

41. In Inder Mohan Goswami and another Vs. State of Uttaranchal and other9, it is held:-

27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

42. In view of the facts when tested in the four corners of the guidelines as laid down by Hon'ble the Supreme Court referred hereinabove, the present petition under Article 226 does not emanate us to exercise the extra ordinary power under Article 226 of the Constitution of India to quash the instant impugned first information report.

43. In case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharastra and Ors. (Supra), Hon'ble the Supreme Court of India in concluding part of it's judgment has laid down guidelines for the Court's while exercising power under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

44. Some of the relevant conclusion relating to the case in our hands are being quoted hereunder:-

"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) .......

xi) .......

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) ......

xiv) ......

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) .........

xvii) .......

xviii)......."

45. Relying on the judgment of Hon'ble the Apex Court State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors.10, and some other cases, the power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ''soft-pedal the course of justice' at a crucial stage of investigation/ proceedings.

46. The case of prosecution is that being in an organized gang as member of the gang, the petitioner is found indulged in offences of serious nature to make economical, material and unlawful gain, there is no rebuttal of this report made by the petitioner in his affidavit by pleading, what he does for his livelihood and/or to feed 'belly of his family'.

47. So far as the personal liberty of the accused is concerned, it is not valid in violation or in breach of fundamental right of the other people living under the threat and fear of his gang. Hon'ble the Supreme Court further in the case of Sudha Singh Vs. The State of Uttar Pradesh & Anr.11 held as follows:-

"12. There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail."

48. After having examined the submissions advanced by learned counsel for the parties and perused the impugned F.I.R., we are of the opinion that the impugned F.I.R. discloses cognizable offence against the petitioner, hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner.

49. The writ petition is, accordingly, dismissed.

50. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

51. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 30.6.2021

Saurabh