Ankit Sharma @ Ankit Kumar vs State Of U.P. Thru Prin Secy Home ...
2022 Latest Caselaw 16190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 9
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 8164 of 2022
 

 
Petitioner :- Ankit Sharma @ Ankit Kumar
 
Respondent :- State Of U.P. Thru Prin Secy Home Deptt Civil Sectt Lko And 3 Others
 
Counsel for Petitioner :- Adarsh Kumar Maurya,Ajay Kumar Shukla,Kanhaiya Yadav,Nida Navi,Rajendra Kumar Dwivedi,Ram Chandra Sharma
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Hon'ble Vivek Kumar Singh,J.

1. Heard Sri Rajendra Kumar Dwivedi, learned counsel for the petitioner and Sri Badrul Hasan, learned A.G.A. for the State.

2. Learned counsel for the petitioner has filed an application praying for consideration of prayer of petitioner for quashing of the F.I.R. bearing Case Crime No.451 of 2022, under Section 2(b)(i) and 3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (for short 'Gangsters Act'), Police Station-Pasgawan, District- Lakhimpur Kheri. The application is supported with an affidavit and the same is taken on record.

3. By means of the present writ petition, petitioner has sought quashing of the F.I.R. bearing Case Crime No.451 of 2022, under Section 2(b)(i) and 3 of Gangsters Act, Police Station-Pasgawan, District- Lakhimpur Kheri.

4. On 04.11.2022, this Court passed the following order:-

"Heard Sri Rajendra Kumar Dwivedi, learned counsel for the petitioner, who has filed vakalatnama, the same is taken on record and Sri Badruddin Hasan, learned A.G.A. has appeared on behalf of State.

Sri Dwivedi, learned counsel for the petitioner has preferred Rule 5(c) of The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 to submit that without filing the charge-sheet in the particular case crime the gangster act may not be imposed. In the present case, without there being filed any charge-sheet, the gangster act has been imposed against the petitioner. He has also placed reliance of the judgment and order dated 9.12.2020 passed by this Court, wherein the similar controversy has been considered and the said writ petition was allowed on the basis of the same submissions so raised by Sri Dwivedi in the present case.

Learned A.G.A. has drawn attention of this Court towards annexure no.2, which is gang-chart, wherein it has been indicated that the charge-sheet no.345/2022 dated 9.9.2022 has been filed before the learned court below. He has also submitted that in the first information report, the same fact has been indicated. However, Sri Dwivedi has again submitted that no such charge-sheet has yet been filed before the learned court below, may be the same has been prepared.

Put up this case as fresh on 9.11.2022 to enable the learned A.G.A. to seek specific instructions as to whether the charge-sheet has been filed in Case Crime No.123 of 2021, under Sections 41/411, 419, 420 I.P.C., P.S. Pargana Kheri.

When the case is listed next, the name of Sri Rajendra Kumar Dwivedi and Ms. Nida Nabi be shown as counsel for the petitioner."

5. At the very outset, learned counsel for the petitioner has drawn attention of this Court towards annexure no.5 of the affidavit filed today which is a certified copy of the questionnaire dated 04.11.2022 issued by the learned court below wherein it has been categorically mentioned that by 04.11.2022 no charge-sheet has been filed in Case Crime No.123 of 2021, under Section 41, 411, 413, 419, 420 I.P.C. Police Station-Pasgawan, District-Kheri. Therefore, it is clear that till filing of the gang-chart (annexure no.2 to the writ petition), no charge-sheet was filed against the petitioner in Case Crime No.123 of 2021. However, in the gang-chart, the impression has been given as if the charge-sheet has been filed on 21.08.2021. Therefore, for seeking specific instructions, the matter was fixed for today.

6. Learned A.G.A. has filed instruction today and the same is taken on record.

7. Learned A.G.A. on the basis of instructions has stated that the charge-sheet has been filed on 05.11.2022 before the learned court below.

8. On being confronted the learned A.G.A. about the aforesaid situation, he has fairly stated that in the gang-chart it should have been categorically indicated that however, charge-sheet has been prepared but the same has not been filed.

9. On being further confronted that the date of charge-sheet has been indicated as 21.08.2021, however, no such charge-sheet has been filed on or before 04.11.2022, on that learned A.G.A. has submitted that aforesaid documents is on record, therefore, he has nothing to say.

10. Heard learned counsel for the parties and perused the material available on record.

11. For convenience, Rule 5(C), Rule 10 and Rule 8 of the U.P. Gangsters and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as 'Rules of 2021'), which have been indicated in the affidavit, are being reproduced herein-below:-

"Rule-5(C)- The 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.

Rule-10- Records of Base Cases.-(1) Along with gang chart, the certified copy of the charge sheet and recovery memo shall be attached compulsorily.

(2) Where the accused is not named in the First Information Report and document discloses the way in which his name came to light and if something has been recovered, a certified copy of the recovery memo shall be attached.

Rule 8- Stating unconfirmed or false information is prohibited.-(1) The Incharge of Police Station/Station House Officer/Inspector shall not mention the cases as Part Trial or Partial Trial (PT) without ascertaining the up-to-date status of the cases in the gang-chart.

(2) No unconfirmed or false information shall be entered in the gang-chart.

(3) The latest status of the cases against the gang, which are being shown in the gang-chart, regarding their pendency in the Special Court, the convictions or the stage at which they are in the Court, must be clearly mentioned

(4) The responsibility of recording the correct and true information shall lie on the concerned Incharge of Station/ Station House Officer/Inspector

(5) On discovering an adverse situation, the Incharge of Police Station/Station House Officer/Inspector shall be held liable for negligence under departmental and criminal proceedings."

12. In light of aforesaid facts and circumstances and also from the perusal of the aforesaid provisions of law i.e. Rule 5(C), Rule-10 and Rule-8 of Rules of 2021, it is clear that before making compliance of Rule 10 of Rules of 2021, the gang-chart has been filed. Even the wrong impression has been given to the Court that the charge-sheet has been filed in the Case Crime No.123 of 2021. Therefore, in such circumstances, required action under Rule-8(5) would be warranted which clearly mentions that on discovering an adverse situation, the Incharge of Police Station/Station House Officer/Inspector shall be held liable for negligence under departmental and criminal proceedings.

13. Not only above, in an identical circumstances, this Court vide judgment and order dated 09.12.2020 passed in Writ Petition No.22007 (M/B) of 2020; 'Master @ Ramzan and Anr. Vs. State of U.P. and Ors' has allowed the writ petition quashing the F.I.R. in question. For convenience, the judgment and order dated 09.12.2020 passed in the aforesaid case in being reproduced herein below:-

1. Heard Asim Kumar Singh, learned counsel for the petitioners and Shri Shachindra Pratap Singh, learned A.G.A. for the respondent State.

2. The writ petition has been filed challenging the impugned F.I.R. No.0430 of 2020 dated 13.10.2020, under Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (for short 'Gangsters Act') registered at Police Station Kotwali Dehat, District Gonda.

3. The petitioners have also prayed for quashing of the Gang Chart prepared under the U.P. Gangsters and Anti Social Activities (Prevention) Act, Police Station Kotwali Dehat, District Gonda and commanding the opposite parties to drop the proceedings under Section 3(1) of Gangsters Act registered at Police Station Kotwali Dehat, District Gonda, with all consequential reliefs.

4. Learned counsel for the petitioners submits that the impugned F.I.R. has been lodged in a most arbitrary and illegal manner without proper application of mind.

5. It is also submitted that in the gang chart, three criminal cases have been shown against petitioner no.2. In case bearing Case Crime No.156/2019, he has been granted bail whereas so far Case Crime No.312 of 2019 and Case Crime No.406 of 2020 are concerned, the police has not yet filed any chargesheet in the concerning court.

6. Similarly, in the gang chart, two criminal cases have been shown against petitioner no.1. In one case bearing Case Crime No.156/2019, he has been granted bail whereas in other case, chargesheet has not been filed by the police as yet.

However, on the basis of the wrong information furnished in the gang chart, the impugned F.I.R. has been lodged against the petitioners.

7. It is stated that as per the Government Order dated 2.1.2004 as well as Circular issued by the Director General of Police dated 24.10.2003, only those criminal cases in which chargesheets have been filed, shall be taken into consideration for the purpose of invoking Gangsters Act, 1986.

8. Learned A.G.A. was granted time to seek instructions. Learned A.G.A. on the basis of the instructions, has filed short counter affidavit, which is taken on record.

9. In paragraphs 5,6 and 7 of the short counter affidavit, it has been stated that the police after completing investigation, had filed the chargesheet in Case Crime No.156 of 2019 before lodging of impugned F.I.R., however in Case Crime No.312 of 2019, the chargesheet has been prepared by the police and has been submitted in the concerning court on 4.12.2020. Similarly, in Case Crime No.406 of 2020, the police has prepared the chargesheet which has been submitted before the court concerned on 4.12.2020. The relevant paragraphs are reproduced as under :-

"5. That it is relevant to mention here that after completion of investigation in Case Crime No.156 of 2019 registered at Police - Kotwali Dehat, District Gonda under Sections 323, 504, 307 and 302 IPC, 7 CLA Act, charge sheet dated 31.05.2019 was forwarded and received by the concerned Court on 12.06.2019.

6. That in Case crime No.312 of 2019, registered at Police Kotwali Dehat, District Gonda, under Sections 504, 506 IPc, chargesheet dated 30.11.2020 was forwarded and received by the concerned court on 04.12.20202. Phototstat copy of the receipt dated 04.12.2020 is being filed herewith as Annexure No.SCA-1 to this Short Counter Affidavit.

7. That in Case Crime No.406/2020, registered at Police - Kotwali Dehat, District Gonda, under Sections 352, 504 and 506 IPC, charge sheet dated 29.09.2020 was forwarded and received by the concerned Court on 04.12.2020. Photostat copy of the receipt dated 04.12.20202 is being annexed as Annexure No.SCA-2to this Short Counter Affidavit."

10. As such, it is evidently clear that in Case Crime No.312 of 2019 as well as Case Crime No.406 of 2020, the chargesheets against the petitioners have been filed in the court after lodging of the impugned F.I.R. under Section 3(1) of the Gangsters Act, 1986.

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. It has also been mentioned in the said Government Order that in case of any misuse by the authorities, the concerning incharge of the police station as well as Senior Superintendent of Police/ Superintendent of Police Incharge of the concerned Districts shall be held responsible.

13. Paragraphs 5 and 10 of the Government Order dated 2.1.2004 are relevant. Paragraphs 5 and 10 of the Government Order dated 2.1.2004 are reproduced :-

"5. किसी भी गिरोह के विरूद्ध कार्यवाही करने के लिए, उसके विरूद्ध केवल उन्हीं मामलों को आपराधिक सूची में सम्मिलित मानन् चाहिए, जिन मामलों में पुलिस द्वारा विवेचना के उपरान्त आरोप पत्र प्रेषित किया जा चुका है। जिन मामलों में अन्तिम रिपोर्ट प्रेषित की जा चुकी है या न्यायालय द्वारा विचारण के उपरान्त अभियुक्त को दोषमुक्त किया जा चुका है, उसे आपराधिक विवरण में सम्मिलित न किया जाये।

10. यहाँ यह भी स्पष्ट किया जाता है कि यदि किसी जनपद में इस अधिनियम में दिये गये प्राविधानों के सम्बन्ध में किसी अधीनस्थ अधिकारी द्वारा अपने कर्तव्य पालन की उपेक्षा करने अथवा अपने अधिकार का दुरूपयोग का कोई मामला प्रकाश में आता है तो सम्बन्धित थाना प्रभारी एवं दोषी पाये गये अधिकारी के अलावा जनपद के वरिष्ठ पुलिस अधीक्षक / पुलिस अधीक्षक प्रभारी भी उत्तरदायी माने जायेंगे।"

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. किसी भी गिरोह के विरूद्ध कार्यवाही करने के लिए उसके विरूद्ध केवल उन्हीं मामलों को आपराधिक सूची में सम्मिलित मानना चाहिए जिन मामलों में पुलिस द्वारा विवेचना के उपरान्त आरोप-पत्र प्रेषित किया जा चुका है, जिन मामलों में अन्तिम रिपोर्ट प्रेषित की जा चुकी है या न्यायालय द्वारा विचाराण के उपरान्त अभियुक्त को दोषमुक्त किया जा चुका है, उसे आपराधिक विवरण में सम्मिलित न किया जाये।"

15. In view of the above, we are of the considered view that the gang chart dated 9.10.2020, copy of which is annexed as Annexure No.2 to the writ petition was prepared on the wrong information with respect to the filing of the chargesheets in the case crime numbers mentioned therein

16. The impugned F.I.R. on the basis of the aforesaid gang chart as such was lodged on the basis of the wrong information furnished in the gang chart as noted above.

17. As such the writ petition in the given facts and circumstances is hereby allowed.

The impugned F.I.R. No.0430 of 2020 dated 13.10.2020, under Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 registered at Police Station Kotwali Dehat, District Gonda as well as gang chart dated 9.10.2020, copy of which are annexed as Annexure Nos.1 and 2 to the writ petition are hereby quashed.

18. However, since it is submitted by learned A.G.A. that now chargesheets in Case Crime No.312 of 2019 and Case Crime No.406 of 2020 against petitioners have already been prepared and filed before the court concerned meaning thereby that in all the criminal cases as mentioned in the gang chart, chargesheets against both the petitioners have been filed as such we hereby give liberty to the competent authority to take a fresh decision in this regard and do the needful."

14. In the aforesaid judgment, the relevant provisions of law has been considered and reference of Government Order dated 02.01.2004 has been given in paragraphs 11 to 14 which would also applicable in the present case.

15. Therefore, in view of what has been considered above, we find that the impugned F.I.R. No.451 of 20222, under Section 2(b)(i) and 3 of Gangsters Act, Police Station-Pasgawan, District-Lakhimpur is liable to be quashed. Accordingly, the aforesaid F.I.R. is hereby quashed.

16. However, since it has been submitted by learned A.G.A. that now the charge-sheet has been filed in the 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 do the needful.

17. Accordingly, the writ petition is allowed.

18. No order as to cost.

[Vivek Kumar Singh,J.]                   [Rajesh Singh Chauhan,J.]
 
Order Date :- 09.11.2022
 
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