Allahabad High Court
Vinod Kumar Mishra vs State Of U.P. Thru. Prin. Secy. ... on 1 November, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 6767 of 2022
Applicant :- Vinod Kumar Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Civil Sectt. Lko. And Another
Counsel for Applicant :- Javed Khan,Ajmal Khan,Prem Prakash Singh
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Ajmal Khan, learned counsel for applicant as well as learned Additional Government Advocate for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicant namely Vinod Kumar Mishra with the prayer to quash the summoning order dated 04.08.2017, charge sheet dated 17.06.2017 as well as proceedings of Sessions Trial No. 56/2017 (Stae vs. Manoj Kumar Tiwari and others), arising out of Case Crime No. 143/2016, under Section 2/3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Maheshganj, District Pratapgarh, pending in the Court of Additional Sessions Judge, Room No.-2 (Gangster), Pratapgarh and to stay the further proceedings of the aforesaid case.
Learned counsel for the applicant while drawing the attention of this Court towards the gang chart, submits that the charge sheet in this case has been submitted by the investigating officer without considering the administrative circulars issued with regard to the prosecution of the offenders under Uttar Pradesh Gangster Act. In this regard, learned counsel for the applicant has relied on the Judgment of a co-ordinate Bench of this Court passed in leading Criminal Misc. Bail Application No. 14323 of 2021 (Nishant @ Nishu vs. State of U.P.) of date 19.03.2021, wherein a Government Order issued by the Principal Secretary (Home) has been cited with approval.
While drawing the attention of this Court towards this circular letter, it is vehemently submitted that clear directions have been given to the police officers to consider only those cases for prosecuting accused persons under Gangster Act wherein the charge sheet has been submitted by the investigating officers and with regard to those cases where the final report or closure report has been submitted or the accused person (s) has been acquitted, these cases should not be considered for the purpose of invoking the provisions of the Gangster Act.
It is vehemently submitted that when the impugned gang chart was prepared i.e. on 29.05.2016 no charge sheet was filed with regard to Case Crime No. 181/2015, under Sections 364, 323, 504, 506, 386, 120 (B), 34 and 411 I.P.C. and the investigating officer has committed manifest illegality in not investigating the allegations of the F.I.R. in right perspective and also in submitting the charge sheet and the trial court has also not considered this aspect of the matter and has taken the cognizance mechanically and, thus, all the proceedings pending before the court below are nothing but the abuse of the process of law and the same be quashed.
Learned A.G.A. on the other hand submits that the charge sheet with regard to Case Crime No. 181/2015 might not have been submitted as the applicant had been granted the protection order from arrest in an application moved by him under Section 482 Cr.P.C. and moreover, the proceedings of the Gangster Act could be invoked against an accused only on the basis of single criminal case.
Having heard learned counsel for the parties and having perused the record, it is evident that the provisions of the Gangster Act have been invoked against the applicant on the basis of two criminal cases. One of the criminal case namely Case Crime No. 181/2015 pertaining to Police Station Kunda, District Pratapgarh was stated to be under investigation when the gang chart of the instant case was prepared and the charge sheet with regard to this case could only been filed on 18.11.2017, thus, the crux of the submissions of learned counsel for the applicant appears to be that this case should not be taken into consideration while invoking the provisions of the Gangster Act in violation of the circular issued by the State Government.
Perusal of the record would also reveal that in the instant case the charge sheet was filed against the applicant by the investigating officer, on 17.06.2017 and the cognizance was taken by the Court on 04.08.2017 and it is after 05 years of taking of the cognizance the order of taking cognizance and issuance of summons as well as the submission of charge sheet has been challenged by the applicant and no reasonable explanation of the same has been given as to why the summoning order or the cognizance taking order or the charge sheet was not challenged at any earlier point of time. There cannot be any other proposition than the fact that the provisions of the Gangster Act could be invoked against an accused on the basis of a single criminal case. Thus, even if the submission of learned counsel for the applicant is believed for a moment, that the second case namely Case Crime No. 181/2015 could not be taken into consideration at the time of preparation of Gang Chart, another criminal case was pending against the applicant and, therefore, the provisions of the U.P. Gangster Act could be invoked against him on the basis of a single criminal case, moreover, the applicant approached this Court after 05 years of taking cognizance by the trial court.
It is settled law that at the stage of taking cognizance and issuance of summons the duty of the Magistrate or Special Court is not to meticulously examine the evidence or material nor in the jurisdiction under Section 482 Cr.P.C., it is permissible to dwell deep into the area of appreciation of disputed questions of facts as the same could be taken care of by the trial Court in the trial. The view of this Court is fortified by the law laid down by Hon'ble Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq, another (Para-10) 2005 SCC (Cr.) 283, Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843 and lastly State of Gujrat Vs Afroz Mohammed Hasanfatta reported in MANU/SC/0139/2019.
Thus, without commenting on the merits and demerits of the case, in the considered opinion of this case no case for quashment of the proceeding is made out in favour of the applicants.
Thus, the application moved on behalf of the applicant appears to be devoid of merits and is, hereby, dismissed.
Order Date :- 1.11.2022
Praveen
