Virendra Kasaudhan vs State Of U.P. And 3 Others
2023 Latest Caselaw 11684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 2683 of 2023
 

 
Petitioner :- Virendra Kasaudhan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Bipin Kumar Tripathi,Shubham
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

1. Counter affidavit filed on behalf of the State, is taken on record.

2. Heard Sri Bipin Kumar Tripathi, learned counsel for the petitioner and Sri Ratan Singh, learned AGA for the State and perused the records.

3. Present petition has been filed with a prayer for quashing the F.I.R. dated 17.12.2022, registered as Case Crime No. 660 of 2022, under Section 3(i) U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as the Gangster Act), Police Station Chiluatal, District Gorakhpur with a further prayer not to arrest the petitioner in pursuance of the impugned F.I.R.

4. Submission of the learned counsel for the petitioner is that in the gang chart details of only one case have been mentioned, however, simultaneously it is mentioned that two cases are registered against the petitioner. So far as the case referred in the gang chart bearing Case Crime no.7 of 2021 is concerned, it is submitted by the learned counsel for the petitioner that initially F.I.R. was lodged only under Sections 279, 504, 307 IPC against two unknown bike riders wherein during investigation in C.D. No.11 dated 24.01.2021 Mukhbir disclosed the name of the co-accused Manoj Chauhan and Monoj Sahani, who are notorious criminals having no concerned with the petitioner and in correspondence to that Mukhbir information co-accused Manoj Sahani, Manoj Chauhan, Sunil Chauhan and Vikas Pathak were arrested on 31.01.2021 in C.D. No.12 and they have made confession before police and disclosed the name of the petitioner. It is further submitted that except aforesaid manner of complicity disclosed by co-accused persons there is no other material evidence collected by investigating officer against the petitioner and as such the investigating officer with addition of section 120B IPC charge-sheeted the accused person. It is next submitted that similarly in another case bearing Case Crime no.255 of 2022, under section 392 IPC, Police Station Cantt, District Gorakhpur the petitioner was not named in the FIR and during the course of investigation those co-accused persons arrested and disclosed the name of the petitioner as one of the participants of the alleged incident dated 04.04.2022. However, the petitioner was granted bail by the learned Sessions Judge, Gorakhpur vide order dated 20.09.2022.

5. Arguing the case on merits, submission of the learned counsel for the petitioner is that only on the basis of single case as mentioned in the gang chart the provisions of Gangster Act has been imposed against the petitioner and that there is a clear violation of Rule 5 clause (2) and (3) of the Rules framed under the Gangster Act. By placing reliance upon a Division Bench Judgment of this Court in the case of Ram Rahees and Another vs. State of U.P. and Others reported in 2011 (1) JIC 440 it is submitted that the District Magistrate at no point of time has recorded subjective satisfaction before imposition of provisions of Gangster Act. It is further submitted that on the basis of another first information report, Gangster Act has been imposed, copy whereof has been annexed as Annexure-2 to the supplementary affidavit. It is next submitted that the petitioner is a businessman and has no concerned with the offence as alleged. Therefore, the impugned first information report under the Gangster Act is nothing but an abuse of process of law and is liable to be quashed.

6. Per contra, learned AGA submits that chargesheet has already been submitted in the base first information report. By drawing attention to the gang chart it is submitted by the learned AGA that the satisfaction has categorically been recorded by the District Magistrate and endorsement dated 17.12.2022 to that effect has been made. It is next submitted that it has already been decided by Hon'ble Apex Court in the case of Shraddha Gupta vs The State Of Uttar Pradesh reported in 2022 SCC OnLine SC 514 that even on the basis of a single case Gangsters Act can be imposed.

7. In the case of Ambuj Parag Dubey and 2 Others vs. State of U.P. and 2 Others reported in 2022 (4) ACR 3878, this court has considered the entire scheme of the Gangster Act and held that in a case, on the materials, the competent authority is convinced and prima facie satisfied that a case for prosecution is made out he may approve the gang chart bypassing discussion with the police officials. But in a case where the competent authority is not convinced or in two mind, on the material placed by the police authorities, the competent authority may necessarily decide to call for a discussion to prima facie satisfy himself that prosecution is warranted. The F.I.R. that follows the approval of the gang chart cannot be faulted or quashed merely for want of discussion. Relevant paragraphs 32, 33, 34, 35,36,37 and 41 of the said judgment are quoted as under:-

"32. Satisfaction of the competent authority only means that the competent authority must be in fact satisfy and not a dishonest satisfaction, which will be no satisfaction at all. The satisfaction contemplated by the Gangster Rule is satisfaction in point of fact on the materials placed before the competent authority. The satisfaction of the competent authority referred to under the Rule is not with respect to the allegations levelled against the gangster but the satisfaction is confined to those allegations that the accused can be prosecuted under the Gangster Act. Whatever may be the nature of charge against the accused, the satisfaction of the competent authority should be with regard to that the materials placed before him and the nature of the accused indulging in community antisocial activities. It is expedient to sanction prosecution under the Gangster Act.

33. The expression satisfied is much narrower than ''application of mind'. The competent authority is not to apply his mind and satisfy himself as to whether the material placed before him would be sufficient for convicting the accused under the Gangster Act. The satisfaction is confined within a narrow domain based on the materials placed before the competent authority, the authorities forwarding the gang chart is satisfied that the accused should be prosecuted under the Gangster Act. The expression satisfaction is not satisfaction on evidence but a prima facie satisfaction based on the representations of the nodal authority and the district police that the accused should be prosecuted under the Gangster Act.

34. Rule 17 mandates that the competent authority is bound to exercise its own independent mind while forwarding the gang chart and should not be on a pre-printed rubber seal gang chart. Rule 17 reads thus:

17 (1) the Competent Authority shall be bound to exercise its own independent mind while forwarding the gang-chart.

(2) A pre-printed rubber seal gang-chart should not be signed by the Competent Authority; otherwise the same shall tantamount to the fact that the Competent Authority has not exercised its free mind.

35. Rule 18 provides that gang chart shall be sent only in the manner as given in Form No. 1 of these rules.

36. Rule 17 and 18 would have to be read together. Gang chart has to be sent in the prescribed Form No. 1. The endorsement to be made by each of the authorities have also been specified in Rule 16. The rule itself prescribes and mandates a printed Form. Rule 17 merely mandates that the competent authority while approving the gang chart should not be swayed by the recommendation of the police authorities mechanically but should satisfy himself independently that the grounds for prosecution is made out. The satisfaction at that stage is subjective and does not rest upon any evidence. The competent authority has to satisfy that the materials placed with the gang chart calls for prosecution. The stage of collecting evidence follows thereafter. The scope of judicial review is miniscule, the accused cannot challenge the FIR without challenging the gang chart. The question as to whether the antisocial activities of the proposed accused is that of a gang or gangster is a matter of investigation.

37. Rule 22 clarifies and specifies that a single act/omission will also constitute an offence under the Act and a first information report must be registered on the basis of a single case. Rule 22(1) reads thus: 

41. The submission of the learned counsel for the petitioners that there was no ''discussion' by the competent authority with the police officers before approving the gang chart would not be fatal to the prosecution of the petitioners. The expression ''discussion' has to be followed mandatorily by the competent authority in every case does not follow from reading of the Rule, though the rule employs the word ''shall'. The Gangster Rule no where mandates the consequence of not following ''discussion' by the competent authority. In our opinion the rule mandating discussion is directory. It is left to the discretion of the competent authority, having regard to the material placed before him for approval of the gang chart. In a case, on the materials, the competent authority is convinced and prima facie satisfied that a case for prosecution is made out he may approve the gang chart bypassing discussion with the police officials. But in a case where the competent authority is not convinced or in two mind, on the material placed by the police authorities, the competent authority may necessarily decide to call for a discussion to prima facie satisfy himself that prosecution is warranted. The FIR that follows the approval of the gang chart cannot be faulted or quashed merely for want of discussion."

8. It may also be noted that Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as the Gangster Rules, 2021), were framed in 2021, which were not available at the time of decision in Ram Rahees (supra). Needless to say that Gangster Rules, 2021 have been considered in great detail in Ambuj Parag Dubey (supra) and the manner in which satisfaction is to be recorded has been laid down. Hence Ram Rahess (supra) is clearly distinguishable and is of no help to the petitioner.

9. Therefore, in view of the judgment of Ambuj Parag Dubey (supra) we find that in the present case satisfaction has been recorded as per the Gangster Rules, 2021 and Form-I of the Gangster Act, which provides the format of the gang chart. Rule 5(3)(d) of the Gangster Act also provides that those cases shall not be mentioned in the gang chart, on the basis whereof action has already been taken once under this Act. We, therefore, find that satisfaction recorded by the District Magistrate in the manner in which it has been done in the present case is in compliance of the Rules and it cannot be said that satisfaction is not recorded.

10. In para 37 of Shraddha Gupta (supra) it has been held by the Hon'ble Apex Court that even on the basis of a single case Gangster Act can be imposed, which is quoted as under:-

"37. Now so far as the main submission on behalf of the accused that for a single offence/FIR/charge sheet with respect to any of the anti- social activities, such an accused cannot be prosecuted under the Gangsters Act, 1986 is concerned, on a fair reading of the definitions of ''Gang' and ''Gangster' under the Gangsters Act, 1986, it can be seen that a ''Gang' is a group of one or more persons who commit/s the crimes mentioned in the definition clause for the motive of earning undue advantage, whether pecuniary, material or otherwise. Even a single crime committed by a ''Gang' is sufficient to implant Gangsters Act on such members of the ''Gang'. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked."

11. In view of the discussions made herein above, we do not find force in the argument of the learned counsel for the petitioner.

12. The petition is devoid of merit and is accordingly, dismissed.

Order Date :- 19.4.2023

Nitendra