Allahabad High Court
Dhirendra Jaiswal vs State Of U.P. Thru. Secy. (Home) ... on 1 August, 2022
Bench: Rajan Roy, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad
(Lucknow)
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Reserved
Judgment Reserved on 21.07.2022
Judgment Delivered on 01.08.2022
Case :- CRIMINAL MISC. WRIT PETITION No. - 3849 of 2022
Petitioner :- Dhirendra Jaiswal
Respondent :- State Of U.P. Thru. Secy. (Home) Lko. and Others
Counsel for Petitioner :- Suresh Chandra Pandey
Counsel for Respondent :- G.A.
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Hon'ble Rajan Roy,J.
Hon'ble Shekhar Kumar Yadav,J.
Heard.
On the 21.07.2022 when the counter affidavit was filed by the learned AGA, counsel for the petitioner had made a statement that he does not want to file his rejoinder affidavit. Accordingly, the matter was heard and the judgment was reserved.
By means of this petition, the petitioner has challenged the First Information Report dated 22.05.2022 bearing case Crime No. 0200 of 2022, under Section 3 (1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 lodged at Police Station Mohammadpur Khala, District Barabanki.
The gang chart has been placed before the Court, according to which the gang comprises of two members, petitioner-herein Dhirendra Jaiswal being the gang leader. Both, the gang leader and the other member have one criminal case against them i.e., case Crime No. 389 of 2021, under Section 60 Excise Act and Sections 420/467/468/471/272/34 IPC, Police Station Mohammadpur Khala, District Barabanki. Charge-sheet has been filed against the petitioner and the other member of the gang in the Court of Additional Chief Judicial Magistrate, Court No. 23, District Barabanki on 13.03.2022.
Only two arguments were advanced by the counsel for the petitioner; one that there is only one criminal case against the petitioner, therefore, the First Information Report could not be lodged under the Act 1986; second, relying upon the averments made in paragraph 14 of the petition, it was contended that there is apprehension that the District Magistrate will attach the only residential house of the petitioner which is in the name of his father who is a retired Army person and which has been constructed from his hard earned money in the year 2000.
Learned AGA submitted that no proceedings for attachment have been initiated as yet, therefore, the arguments made on the basis of paragraph 14 is presumptuous and the petitioner or any other aggrieved person in that regard would have adequate opportunity before the District Magistrate under Sections 14 and 15 of the Act 1986.
Heard the learned counsel for the parties and perused the record.
On a perusal of the counter affidavit filed by the State, it comes out that in the garb of selling country-made liquor, spurious liquor was being sold by the petitioner and his gang members. It says charge-sheet has already been filed in the aforesaid case Crime No. 389 of 2021. Petitioner is the gang leader and for pecuniary and temporal gain he and other members of the gang were involved in manufacturing of spurious wine and its sale which has been proved during investigation in case Crime No. 389 of 2021 wherein charge-sheet has already been filed.
We find that the offence under Section 420 as alleged in case Crime No. 389 of 2021 is one which falls under Chapter XVII of the Indian Penal Code, therefore, the said allegation constitutes anti social activity.
Even on a single criminal case, FIR can be lodged. We may in this regard refer to the decision of Hon'ble the Supreme Court in the case of Shraddha Gupta vs. State of Uttar Pradesh and Others; 2022 (4) JT 783. In every case where First Information Report has been lodged under the Act 1986 based on a single criminal case we need not interfere under Article 226 of the Constitution of India. Interference will depend on the facts of the case. In this case the allegation against the petitioner is of being the gang leader of a gang involved in manufacturing and sale of spurious/adulterated liquor, therefore, in view of Section 2(b) of the Act 1986 the activity, in which the petitioner and his gang member are alleged to be involved it is at least at this stage an anti social activity. Other parameters of the Act 1986 whether they are satisfied or not is a matter of investigation and can be seen during investigation. Whether ultimately the offence is proved or not, is a matter of investigation and that stage is yet to come, but in view of the recitals in the First Information Report impugned before us at this stage it cannot be said that ingredients of Section 2(b) are not satisfied.
As regards the second contention based on apprehension of attachment, the cause of action has not arisen as yet and it is only an apprehension. As and when the cause arises, the petitioner would have adequate opportunity and access to the remedy prescribed in law.
The petition is dismissed without prejudice to the rights of the petitioner to seek other remedies such as applying for bail as may be permissible in law and also his rights in the pending investigation.
[Shekhar Kumar Yadav, J.] [Rajan Roy, J.]
Order Date :- 01.08.2022
Santosh/-
