Arbaz vs State Of U.P Through Home ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 72
 
Case :- APPLICATION U/S 482 No. - 41094 of 2022
 
Applicant :- Arbaz
 
Opposite Party :- State Of U.P Through Home Secretary Gov. Of U.P Lko And Anothr
 
Counsel for Applicant :- Sanjay Kr. Srivastava,Ajay Kr. Srivastava
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

By moving this application, the prayer is made to quash the proceedings of case no. 890 of 2022, State Vs. Imran and others, case crime no. 164 of 2021, under section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, police station Bhogipur, District Kanpur Dehat, along with the prayer to quash chargesheet dated 9.6.2022 and cognizance order dated 20.7.2022.

As per the facts of the case, an FIR was lodged against the present applicant by S.I. Atul Gautam on 16.4.2020 at case crime no. 176 of 2020 under section 3/8 Cow Slaughter Act and Section 11 (gha) of Animals creulty Act with the version that on the information of a tip that 3 persons have tied up a calf with a neem tree and are planning to cut it off. When police reached at the spot, they found that 3 persons were standing near the calf which was cruelly tied up with a tree. Noticing the police, out of 3 persons two of them managed to escape and the present applicant was apprehended by the police who admitted that noticing unattended calf roaming there, they caught it with intention of its slaughter. The mouth of the calf was tied up with a rope in a cruel manner. The accused was taken into custody. The mouth of the calf was got freed from the rope. The calf was taken into possession of the police and FIR was lodged.

On the basis of this case, after due permission, a gang chart was prepared. On the basis of this only case, the first information report under section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 was lodged against the present applicant on 9.6.2021 at case crime no. 164 of 2021.

It is argued by the learned counsel for the applicant that the offence of the applicant does not come within the purview of gangster act. As for a gang ''acting singly or collectively 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, indulged in anti-social activities as mentioned in the said clause of section 2(b) of U.P. Gangster and Anti-social Activities ( Prevention) Act, 1986 is must. The applicant on registering a case under cow slaughter act does not come within the definition of ''gang', hence, the prayer is made accordingly.

Learned counsel for the applicant placed before the court a judgment of Davison Bench of this court Cr. Misc. Writ Petition No. 5707 of 2021, Pankaj Singh Vs. State of U.P. and three others, wherein the court found that against the petitioner there was no allegation of violence, threat or show of violence or intimidation or coercion, the FIR lodged under section 2/3 Gangster Act by the respondents was found clear abuse of the process of law. The court allowed the writ petition, quashing the said FIR.

Again the attention of the court was drawn towards a single bench judgment of the coordinate bench of this court passed in application u/s 482 Cr.P.C. No. 3982 of 2021, Kafeel Vs. State of U.P. and three others dated 20.3.2022 wherein it was claimed that on the basis of the case under cow slaughter act, two kg. meat was found from the possession of the accused. There was no allegation of any of the ante social activities mentioned in section 2(b) of the Act, such as violence, threat, show of violence, intimidation, coercion etc against the accused, therefore, the court did not find the offense under section 3(1) of U.P. Gangster and Anti social Activities ( Prevention) Act 1986 committed by the applicant with the object of disturbing public order or of gaining undue temporal, pecuniary material or other advantage for himself or any other person. The court quashed the entire proceedings as well as charge sheet under section 3(1) of U.P. Gangster and Anti social Activities (Prevention) Act, 1986.

Prayer is opposed by learned A.G.A. and submitted that the applicant was arrested in the present case with the allegation that he was apprehended with an unattended wandering calf with the intention to cut it off. The mouth of the calf was found tied up with a rope causing cruelty to the calf. As per section 2(b) of U.P. Gangster Act, 1986 the applicant was found gaining undue pecuniary, temporal, pecuniary material or other advantage for himself, indulged in ante social activities namely, illegally transporting/ smuggling of cattle and indulging in the act comes in the definition of the provision of cow slaughter Act, 1955 and the provision of cruelty to the Animal Act.

If we go through the facts of the judgment placed before the court passed in application u/s 482 Cr.P.C. No. 3982 of 2021, in that case the accused was apprehended with 2 kg of beef in his hands and admittedly, that accused was having slaughter license under Food Safety and Standard Authority of India but in the present case, no such license is on record. So the facts of the both cases are different.

It is apposite to mention the relevant provisions of Section 2(b) read with sub clause XVII of U.P. Gangster and Anti-social Activities ( Prevention) Act, 1986 in this regard.

2. Definitions.- In this Act-

(b) "Gang" means a group of persons, who acting either singly or collectively, 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 of any other person, indulge in anti social activities, namely:-

.................................

(XVII) Illegally transporting and / or smuggling of cattle and indulging in acts in contravention of the provisions in the Prevention of Cow Slaughter Act, 1955 and the Prevention of Cruelty to Animals Act, 1960;

If we go through the facts of the present case, the applicant was apprehended by the police with a calf tied up with a tree with the allegation that unattended wandering calf was tied up by the accused applicant to commit its slaughter. His mouth was also tied up with a rope cruelly.

It is argued by learned counsel for the applicant that from the gang chart it is clear that only on the basis of one case under section 3/8 Cow Slaughter Act and section 11 (Dha) Animal cruelty Act, the present case under section 3(1) of U.P. Gangster and Anti-social Activities ( Prevention) Act, 1986 has been slapped upon the applicant. The applicant has no other criminal history to his credit. The gang chart has been prepared in cyclostyle manner with no application of mind which is prepared in mechanical manner to implicate the applicant in the present case. To invoke the section 3(1) of Gangster Act, the necessary ingredients of Section 2 (b) of the Gangster Act are missing. The rope by which the mouth of the calf is said to have tied has not been taken in to possession by the police.

Learned A.G.A. however opposed the prayer and submitted that on the basis of the judgment passed by the Apex Court in Shraddha Gupta Versus State of Uttar Pradesh and others, 2022 SCC OnLine SC 514, even on the basis of one single case offence under Gangster Act can be imposed upon the applicant. Further it is submitted that as with the object of disturbing public order or of gaining any undue temporal, pecuniary material or other advantage for himself or any other person, the applicant was indulged in the acts in contravention of the provisions in Prevention Of Caw Slaughter Act, 1955 and Prevention Of Cruelty To Animal Act, 1960 so the ingredients of Section 2(b) of the Gangster Act cannot be said to be missing.

If we go through the record and the provision of law, it is clear that even on a single case the provisions of Gangster Act can be invoked. To invoke gangster act, necessary ingredients related to the present case may be the gaining of undue pecuniary, or other advantage for himself or any other person indulged into ante social activities and indulging in acts in contravention of the provision in the Prevention Of Cow Slaughter Act 1955 and the Prevention Of Cruelty To Animal Act, 1960. But there is nothing on record to show that the applicant was gaining any undue pecuniary or other advantage for himself or any other person. As there is no version /confession on the part of the applicant that he would gain any undue pecuniary or other advantage by cutting the calf, nor any weapon is said to have been recovered from the applicant. It is further not the case of the prosecution that the applicant by causing violence or threat or show a violence or intimidation or coercion or otherwise with the object of disturbing public order or or gaining undue temporal, pecuniary material or other advantage for himself or any other person is indulged in ante social activities. It is also not the case that the applicant was indulged in illegal transporting or smuggling of cattle or indulged in any act in contravention of the provisions in the Prevention Of Cow Slaughter Act, 1955 and the Prevention Of Cruelty To Animal Act. The motive of the applicant by standing near the calf whose mouth is said to have tied up with a rope indulged him in gaining undue temporal, pecuniary or material or other advantage for himself of any other persons cannot be said. The rope by which the mouth of the calf is said to be tied up is not shown to be taken in possession by the police.

Thus, on the basis of the peculiar facts of the case, there is nothing on record to suggest that the charge sheet has been filed against the applicant for any ante social activities mentioned in section 2(b) of the Act.

Thus, in the light of above discussion, the provision of Gangster Act cannot be invoked in the present case. Hence, the entire proceedings of Sessions Case no. 890 of 2022, State Vs. Imran and others, case crime no. 164 of 2021, under section 3(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, police station Bhogipur, District Kanpur Dehat are quashed.

The application u/s 482 Cr.P.C. is allowed.

Order Date :- 7.4.2023

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