Allahabad High Court
Virendra And Others vs State Of U.P. Thru. Addl. Chief ... on 4 April, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 2415 of 2023
Petitioner :- Virendra And Others
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home, Lko. And Others
Counsel for Petitioner :- Santosh Kr. Yadav Warsi,Jitendra Kumar Singh,Kafiya
Counsel for Respondent :- G.A.
AND
Case :- CRIMINAL MISC. WRIT PETITION No. - 2416 of 2023
Petitioner :- Ramveer Yadav
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home And Others
Counsel for Petitioner :- Santosh Kr. Yadav Warsi,Jitendra Kumar Singh,Kafiya
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
Heard Shri Santosh Kumar Yadav Warsi, learned counsel for the petitioners, Shri Shiv Nath Tilhari, learned A.G.A. for the State/respondent Nos. 1 to 4 and perused the material placed on record.
Since the issue involved in both the writ petitions is similar and the relief sought by the petitioners are same, both the writ petitions are decided by a common order.
For the order proposed to be passed, this court feels it unnecessary to issue notice to private respondent No.5. Hence, notice to respondent No.5 is dispensed with.
This writ petition has been filed with the following three prayers :-
"(i) Issue a writ, order or direction in the nature of the certiorari thereby quashing the FIR No.0013/2023 FIR dated 29.01.2023 (Annexure No.1).
(ii) Issue a writ, order or direction in the nature of the certiorari thereby quashing the recommendation undated passed by the O.P. No.3 (Annexure No.2).
(iii) Issue a writ, order or direction in the nature of the certiorari thereby quashing the approval order dated 20.01.2023 (Annexure No.2)."
It is the case of the petitioners that they have been falsely implicated in the F.I.R. Case Crime No.403/2022, under Section 8/20 of NDPS Act, on 07.09.2022. The petitioners were thereafter enlarged on bail. The story framed in the aforesaid F.I.R. being false regarding involvement of the petitioners has been developed only because of political enmity with the present Pradhan of the Village concerned as some complaints were made against her husband and brother-in-law pertaining to forgery and manipulation committed by them in obtaining service under the Basic Shiksha Adhikari, Hardoi. On the complaint of the petitioners an inquiry is being carried out and the husband and brother-in-law of the Gram Pradhan were both suspended in the meanwhile.
It has been submitted by learned counsel for the petitioners that while preparing the gang chart, the concerned incharge of the police station and also in the recommendations given by the District Chief of Police as approved by the District Magistrate, the principles relating to Chapter III Rule 5 of the U.P. Gangster and Anti Social Activities (Prevention) Rules, 2021 (herein after referred to as "the Rules of 2021") has not been followed. He has submitted that there is no application of mind while submitting the gang chart. The language used in forwarding the gang chart and in its approval show it to be on a set format.
This Court has perused the Rule 16 of the Rules of 2021, wherein in sub rule 1, sub rule 2 and sub rule 3 thereof, the language has been provided in which such forwarding of gang chart shall be done by the Assistant Superintendent of Police, District Police Incharge and thereafter the District Magistrate. This court has also gone through the gang chart wherein it has come out that the petitioners were apprehended with more than 5 Kg. of Ganja and has been charge sheeted under the NDPS Act. The Assistant Superintendent of Police/Nodel Officer as well as the Superintendent of Police and the District Magistrate have used the exact language as required under the Rules of 2021 to forward the gang chart. It cannot be said that the language used in forwarding the gang chart is without application of mind as it is evident from the gang chart itself that serious offence under the NDPS Act was found to have been committed and the petitioners have already been charge-sheeted.
With regard to the argument raised by learned counsel for the petitioners that the sections of Gangster Act has been used upon the petitioners only for one case, this Court is of the view that after the judgment rendered by Supreme Court in the case of Shradha Gupta Vs. State of U.P. and others, AIR 2022 SC 2062 : Law Suit (SC) 53, the question of implicating the accused only on the basis of one case is no longer res integra. It has been observed that the provisions of Gangster Act can be imposed even on the basis of a single case.
Learned counsel for the petitioners has also argued that he has challenged the approval of the District Magistrate and the District Police Incharge on the ground that the language used is verbatim as used in the Rules of 2021, which shows complete non application of mind to the question as to whether the petitioners were actually causing any terror in the public as required under Section 2 (b) of the Gangster and Anti Social Activities (Prevention) Act, 1986.
It has been argued by learned counsel for the petitioners that under Rule 6 of the Rules of 2021 while preparing the gang chart, it shall be clearly mentioned if the alleged act of the gang falls within the purview of clause (b) of Section 2 of the Gangster Act, 1986 along with relevant provision and if the Investigating Officer makes a endorsement to the effect that the accused is causing panic, alarm or terror in public, then evidence shall be collected in this regard.
It has also been submitted by learned counsel for the petitioners that no evidence has been collected and the order has been passed in a prescribed format in the language as provided under the Rules of 2021 and the approval has also been granted without application of mind.
Learned A.G.A. has read out the noting made by the Investigating Officer/Circle Officer/Nodal Officer with regard to the gang in question carrying out offences routinely under the NDPS Act and that the public being afraid has not come forward to give evidence against such accused. He has also pointed out a specific mention being made of Section 2 (b) (ii) of the Gangster Act, 1986 in the recommendation of the Circle Officer and also the approval given by the District Police Chief and the District Magistrate where they have noted that they have seen the enclosed papers along with the gang chart. The material enclosed with the gang chart has not been filed with writ petition.
This court is of the opinion that the petitioners are unnecessarily quibbling on the language used in the gang chart as the language is used only as per the prescribed format given in the Gangster Act, 1986 and the Rules of 2021 framed there under.
Learned counsel for the petitioners has tried to argue before this Court that there were no papers enclosed with the gang chart and the District Magistrate has not seen the evidence enclosed with the gang chart and only approved the gang chart as suggested by the Superintendent of Police. This Court is not convinced with such argument.
Accordingly, both the writ petitions stand dismissed.
Order Date :- 4.4.2023
ML/-
