Vinod Kumar Frank vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 20961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 3780 of 2022
 
Petitioner :- Vinod Kumar Frank
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. (Home)/ Prin. Secy. (Home) Lko. And Others
 
Counsel for Petitioner :- Raghvendra Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Hon'ble Vivek Kumar Singh,J.

1. By means of this writ petition, the petitioner has prayed for the following main reliefs:

"(i) to issue a writ, order or direction in the nature of Certiorari quashing the impugned First Information Report, registered against the Petitioner by Respondent No.3, as Case Crime No.128 of 2022, under section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 on 09.04.2022 at Police Station Hazaratganj, District Lucknow (Lucknow Commissionerate), contained in Annexure no.1 to the writ petition;

(ii) to issue a writ, order or direction in the nature of Mandamus, commanding the Respondents not to proceed, prosecute, or arrest the Petitioner on the basis of the impugned F.I.R. registered against the Petitioners by the Respndent No.3, as Case Crime No.128 of 2022, under section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 on 09.04.2022 at Police Station Hazaratganj, District Lucknow (Lucknow Commissionerate) as contained in Annexure no.1 to the writ petition"

2. Learned counsel for the petitioner submits that in the same FIR/Case Crime Number and on similar circumstances, this Court has passed an order dated 14.12.2022, allowing the writ petition filed by the co-accused Sanjay Kumar Mall bearing Criminal Misc. Writ Petition No.7428 of 2022. The order dated 14.12.2022 passed in the said writ petition reads as under:

"1. By means of this writ petition, the petitioner has prayed for the following main reliefs:

"i) issue a writ order or direction in the nature of Certiorari and Quash the impugned FIR No.128 of 2022 U/s 2/3 of U.P. Gangster & Anti-Social Activities (Prevention) Act, 1986, P.S.-Hazaratganj, District-Lucknow, as contained in Annexure No.-1 to this Writ Petition;

ii) issue a writ order or direction in the nature of Mandamus directing and commanding the opposite parties not to proceed with the Investigation in pursuance of the impugned FIR No.128 of 2022 U/s 2/3 of U.P. Gangster & Anti-Social Activities (Prevention) Act, 1986, P.S.-Hazaratganj, District-Lucknow against the Petitioner till the disposal of the present petition; as contained in Annexure No.-1 to this Writ Petition."

2. The precise contention of learned counsel for the petitioner is that in the Gang Chart (Annexure-2), the date of charge sheet in the base case has been indicated as 12.5.2021. However, the charge sheet has been filed on 23.11.2021 as learned counsel for the petitioner has shown a questionnaire being issued from the learned court concerned indicating therein that the charge sheet in the base case has been filed on 23.11.2021. Therefore, on such premise, learned counsel for the petitioner has submitted that the impugned FIR is violative of Rule 10(2) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 2021 (for short 'the Rules'). He has also submitted that a coordinate Bench of this Court in re: Master @ Ramzan and another vs. State of U.P. and others: Writ Petition No.22007 (MB) of 2020, vide judgement and order dated 9.12.2020, has quashed such impugned FIR. The aforesaid judgment has been referred and considered in the case of Ankit Sharma @ Ankit Kumar "Criminal Misc. Writ Petition No.8164 of 2022, and considering the aforesaid judgment, writ petition in re: Ankit Sharma @ Ankit Kumar (supra) was allowed and the impugned FIR was quashed vide order dated 09.11.2022.

3. Learned counsel for the petitioner has referred to Paragraphs 11 and 14 of the judgment in re: Master @ Ramzan and another (supra) and the said paragraphs have been referred to in subsequent judgment in re: Ankit Sharma @ Ankit Kumar (supra). For convenience, paragraphs 11 and 14 are being reproduced hereinbelow:

"11. It is to be noted that the Government Order dated 2.1.2004 specifically provides that only those criminal cases shall be included in the gang chart in which the police has prepared the chargesheet and the same has been filed before the court concerned.

12. .....

13. .....

14. It is also to be noted that vide Circular dated 24.10.2003, Director General of Police, U.P. has issued the directions similar to the Government Order dated 2.1.2004 as noted above.

Relevant paragraph 2 of Circular dated 24.10.2003 is reproduced as under :-

"2. ???? ?? ????? ?? ??????? ????????? ???? ?? ??? ???? ??????? ???? ?????? ?????? ?? ??????? ???? ??? ???????? ????? ????? ??? ?????? ??? ????? ?????? ??????? ?? ??????? ????-???? ??????? ???? ?? ???? ??, ??? ?????? ??? ?????? ??????? ??????? ?? ?? ???? ?? ?? ???????? ?????? ??????? ?? ??????? ???????? ?? ???????? ???? ?? ???? ??, ??? ??????? ????? ??? ???????? ? ???? ?????"

4. Learned counsel for the petitioner submits that since in the present case, charge sheet has not been filed before the court along with Gang Chart, therefore, the impugned FIR is liable to be quashed.

5. Per contra, learned A.G.A. has submitted that Rule 5(c) of the Rules provides that Gang Chart shall not mention those cases in which acquittal has been granted by the Special Court or in which the final report has been filed after the investigation. However, the Gang Chart shall not be approved without the completion of investigation of the base case. In the present case, after completion of investigation, charge sheet was forwarded to the superior authority, therefore, there is no infirmity in such Gang Chart.

6. Having heard learned counsel for the parties and having perused the material available on record, we find that the Rules have come into force w.e.f. 27.12.2021, whereas in the present case, charge sheet has been filed prior to such date, therefore, provisions of Rules 2021 would not be applicable in the present case, but the judgement and order of the coordinate Bench of this Court in re: Master @ Ramzan and another (supra) clearly holds that in view of Government Order dated 2.1.2004, charge sheet should be filed before the court concerned in the base case.

7. Admittedly, the charge sheet was not filed before the court concerned prior to preparation of the Gang Chart. Inasmuch as charge sheet has been filed after filing of the Gang Chart, as considered above.

8. Therefore, in view of above, we hereby allow the present writ petition. Accordingly, the impugned FIR No.128 of 2022 U/s 2/3 of U.P. Gangster & Anti-Social Activities (Prevention) Act, 1986, P.S.-Hazaratganj, District-Lucknow, charge sheet and the consequential proceedings are hereby quashed.

9. However, since it has been submitted by learned A.G.A. that now the charge sheet has been filed in the FIR/Case Crime number in question against the present petitioner, as such, we hereby giving liberty to the competent authority to take a fresh decision in this regard and to do the needful.

10. No order as to costs."

3. Learned counsel for the petitioner submits that the case of the present petitioner is also identical. He, therefore, prays that the benefit of the order dated 14.12.2022 passed in Criminal Misc. Writ Petition No.7428 of 2022 may be extended to the present petitioner also.

4. Learned A.G.A. does not dispute the aforesaid fact.

5. In view of the aforesaid facts, we hereby extend the benefit of the order dated 14.12.2022 passed in Criminal Misc. Writ Petition No.7428 of 2022 "Sanjay Kumar Mall vs. State of U.P. and others" to the present petitioner also.

6. Accordingly, the writ petition is hereby allowed and the impugned FIR No.128 of 2022 U/s 2/3 of U.P. Gangster & Anti-Social Activities (Prevention) Act, 1986, P.S.-Hazaratganj, District-Lucknow, charge sheet and the consequential proceedings are hereby quashed.

7. However, since it has been submitted by learned A.G.A. that now the charge sheet has been filed in the FIR/Case Crime number in question against the present petitioner, as such, we hereby giving liberty to the competent authority to take a fresh decision in this regard and to do the needful.

8. No order as to costs.

9. Office while issuing a certified copy of this order, shall also issue a copy of the order dated 14.12.2022 passed in Criminal Misc. Writ Petition No.7428 of 2022 "Sanjay Kumar Mall vs. State of U.P. and others".

(Vivek Kumar Singh,J.) (Rajesh Singh Chauhan,J.)

Order Date :- 14.12.2022

Sachin