Mohd. Zahid @ Babu And Another vs State Of U P And 2 Others
2022 Latest Caselaw 22418 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14773 of 2022
 
Petitioner :- Mohd. Zahid @ Babu and another
 
Respondent :- State of U.P. and 2 others
 
Counsel for Petitioner :- Zafar Abbas
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Mayank Kumar Jain,J.

Heard Sri Zafar Abbas, learned counsel for the petitioners and Sri S.N. Mishra, learned A.G.A. for the State respondents.

Present writ petition is preferred under Article 226 of Constitution of India questioning the validity of the impugned FIR dated 20.8.2022, registered as Case Crime No.216 of 2022, under Section 3 (1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station- Kotwali, District Jaunpur and for a direction to the respondents not to arrest the petitioners in pursuance of the aforesaid FIR.

It appears from the record that as per gang chart of this case, the first petitioner is accused in five criminal cases and except Case Crime No.333 of 2021, the second petitioner is also implicated in other four matters. The details of these five criminal cases are reproduced herein under:-

"1. Case Crime No.483 of 2020 under Sections 427, 323, 504, 506 IPC, Police Station Kotwali, District Jaunpur in which the petitioners have been accorded bail by the Chief Judicial Magistrate, Jaunpur vide order dated 30.8.2022 passed in Case No.82/2021 (State vs. Jahid @ Jahid Hasan).

2. Case Crime No.198 of 2021 under Sections 427, 323, 504, 506 IPC, P.S. Kotwali, District Jaunpur, wherein the petitioners are also on bail vide order dated 31.8.2022 passed by the Chief Judicial Magistrate, Jaunpur in Case No.6342 of 2021 (State vs. Hasan Kamal Khan & ors).

3. Case Crime No.351 of 2021 under Sections 419, 420, 120-B, 504, 506, 386 IPC, P.S. Line Bazar, District Jaunpur. It is claimed that in the said proceeding, after investigation the police has already submitted final report.

4. Case Crime No.273 of 2015 under Sections 386 and 506 IPC, P.S. Kotwali, District Jaunur, in which after investigation the chargesheet has been submitted against the petitioners on 27.4.2015.

5. Case Crime No.333 of 2021 under Section 143/341 IPC and Section 7 of Criminal Law Amendment Act, P.S. Kowali, District Jaunpur, in which investigation is going on and till date, no report under Section 173 (2) Cr.P.C. has been filed."

Learned counsel for the petitioners in the aforementioned circumstances has vehemently contended that the first information report was lodged against the petitioners on 19.12.2021 by one Mohd. Aslam by way of an application under Section 156 (3) Cr.P.C. registered as Case Crime No.351 of 2021. Even though in the said proceeding, final report has already been submitted but surprisingly while finalising the gang chart the aforesaid case crime number is also mentioned against the petitioners. He submits that in other Case Crime No.273 of 2015 the chargesheet is only submitted against the first petitioners on 27.4.2015 but the same is also reflected against the second petitioner. He submits that the entire dispute is of civil in nature with Zargam Abbas @ Mirza Rushaid, Mohd. Aslam. The mother of Mohd. Aslam namely Smt. Naseem Ara had executed registered agreement to sale in favour of the first petitioner and two others namely Mohd. Arif and Shadabul Hasan. Mohd. Aslam had fraudulently obtained power of attorney from his mother qua the disputed property. Subsequently, Mohd. Aslam executed agreement to sale in favour of one Mahendra Kumar Yadav. Mohd. Aslam had executed registered sale deed in favour of Zargam Abbas @ Mirza Rushaid. The first petitioner had also instituted a civil suit for cancellation of sale deed executed in favour of Zargam Abbas @ Mirza Rushaid and till date, the civil suit is stated to be pending consideration. He has vehemently contended that while finalising the gang chart, it has wrongly been mentioned that in Case Crime No.351 of 2021 chargesheet has been submitted against the petitioners, whereas in the said case, the final report has been submitted. He has placed reliance on Rule 5 (c) and Rule 8 of the Uttar Pradesh Gangster And Anti-Social Activities (Prevention) Rules, 2021. He submits that as per definition of Section 2 and 2 (b) of Gangster Act, no case is made out under Section 3 (1) of the Act against the petitioners. He submits that the petitioners are innocent but in most arbitrary manner, the proceeding has been drawn against then under the Gangsters Act and as such, the proceeding under the Gangster Act is liable to be set aside.

Per contra, learned AGA has vehemently opposed the writ petition and submitted that the law is otherwise settled in view of the law laid down by the Apex Court that even in solitary case, the proceeding under the Gangster Act can be drawn. Even for the sake of argument, if it is accepted that in one Case Crime No.351 of 2021, which is reflected in the gang chart, the chargesheet has been submitted against the petitioners, whereas in the said case, the final report has been submitted but the same would not alter the fate of the proceeding as in other four matters registered against the first petitioner, the proceedings are on. Similar situation also reflects against the second petitioner and he is also implicated in three other criminal cases. In this regard, he has placed reliance upon the judgment passed by Hon'ble the 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, wherein it is propounded 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 Gangster Act. Therefore, the contention of petitioner that based on solitary case, the imposition of Section 3(1) of Gangster Act is not leviable, would have no bearing. Reliance has also been placed on the judgment of Hon'ble the Apex Court in Shraddha Gupta Versus State of Uttar Pradesh and others, 2022 SCC OnLine SC 514, wherein the Apex Court had an occasion to consider as to whether prosecution under the Gangster Act can be initiated against a person even in case of single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Gangster Act. The relevant portion of the order reads thus:

"On a fair reading of the definitions of 'Gang' contained in Section 2(b) and 'Gangster' contained in Section 2(c) of the Gangsters Act, a 'Gangster' means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a 'Gang' and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act...Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is 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."

Considering the facts and circumstances as well as the judgments cited above, we are also of the opinion that even on the basis of solitary case the provisions of Gangster Act can be imposed and as such, we are not inclined to interfere in the matter.

The writ petition is dismissed leaving it open for the petitioner to apply before the competent court for bail as permissible under law and in accordance with law.

Order Date :- 22.12.2022

SP/RKP