Sanjay Sagar vs State Of U.P. Thr. Prin. Secy. ...
2023 Latest Caselaw 21470 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:163930
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 27048 of 2023
 

 
Applicant :- Sanjay Sagar
 
Opposite Party :- State Of U.P. Thr. Prin. Secy. (Home) Govt. Of U.P. And Anr.
 
Counsel for Applicant :- Shitlesh Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant and Shri P.C. Srivastava, learned Additional Advocate General, assisted by Shri J.K. Upadhyaya, learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of Session Case No. 281 of 2023 (State of U.P. Vs. Mukhtar Ansari and others), including charge-sheet dated 26.12.2022 and summoning order dated 17.02.2023, arising out of Case Crime No. 08 of 2022, under Section 3(1) of U.P Gangster and Anti Social Activities (Prevention) Act (hereinafter referred to as Gangster Act), Police Station-Saraylakhansi, District-Mau, pending in the Court of learned Special Judge (U.P. Gangster Act)/Additional Session Judge, Court No. 2, Mau.

3. Learned counsel for the applicant submits that applicant is innocent and he has been falsely implicated in this case and that no prima facie case is disclosed against the applicant and the impugned proceedings are nothing but abuse of process of law. The proceedings under 3(1) Gangster Act have been initiated on the basis of single case i.e. Case Crime No. 185/2021 under Section 419,420,467,468,471,120-B IPC. The applicant has no role in the incident of the Case Crime No. 185/2021 and he has already been granted bail in that case. It was submitted that the grant of 'Vidhayak Nidhi' was made to the school being run by co-accused and applicant has absolutely no connection with the said school or with the alleged grant of 'Vidhayak Nidhi'. Referring to facts of the matter, it was submitted that the applicant does not fall within the ambit of ?Gangster? and thus, no prima facie case is made out against the applicant.

4 Learned Additional Advocate General submitted that it is settled law that the proceedings under Section 3(1) of Gangster Act can be initiated on the basis of single case and in this connection, learned Additional Advocate General has referred case of Shraddha Gupta Vs. State of U.P and others 2022 LiveLaw (SC) 411. It is further submitted that in view of allegations made in the first information report and material collected during investigation, a prima facie case under Section 3(1) of Gangster Act, is made out against the applicant.

5. I have considered rival submissions and perused the record.

6. Before proceeding further, it would be apt to reproduce provisions of section 2(b) and (c) of the Gangsters Act, which read as follows:-

"(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 or any other person, indulge in anti-social activities, namely-

(i) offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or

(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 (U.P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or

(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or

(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or

(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956), or

(vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or

(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or

(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or

(ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or

(x) inciting others to resort to violence to disturb communal harmony, or

(xi) creating panic, alarm or terror in public, or

(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or

(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or

(xiv) kidnapping or abducting any person with intent to extort ransom, or

(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;

(xvi) offences punishable under the Regulation of Money Lending Act, 1976;

(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 toAnimals Act, 1960;

(xviii) human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and the like activities.

(xix) offences punishable under theUnlawful Activities (Prevention) Act, 1966:

(xx) printing, transporting and circulating of fake Indian currency notes;

(xxi) involving in production, sale and distribution of spurious drugs;

(xxii) involving in manufacture, sale and transportation of arms and ammunition in contravention ofSections 5, 7 and 12 of the Arms Act, 1959;

(xxiii) felling or killing for economic gains, smuggling of products in contravention of theIndian Forest Act, 1927 and Wildlife Protection Act, 1972;

(xxiv) offences punishable under the Entertainment and Betting Tax Act, 1979;

(xv) indulging in crimes that impact security of State, public order and even tempo of life.

(c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause

(b), whether before or after the commission of such activities or harbours any person who has indulged in such activities;"

7. The issue whether a person against whom a single FIR/charge sheet is filed for any of the anti-social activities mentioned in section 2(b) of the Gangsters Act, 1986 can be prosecuted under the Gangsters Act, is no more res integra. In case Shardha Gupta vs. State of U.P. 2022 SCC OnLine SC 514, it was categorically observed by the Hon?ble Apex Court that even a single crime committed by a ?Gang? is sufficient to implant Gangsters Act on such members of the ?Gang?. The Court held:

?9. 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 antisocial 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 16 such members of the ?Gang?. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked. A group of persons may act collectively or anyone of the members of the group may also act singly, with the object of disturbing public order indulging in anti-social activities mentioned in Section 2(b) of the Gangsters Act, who can be termed as ?Gangster?. A member of a ?Gang? acting either singly or collectively may be termed as a member of the ?Gang? and comes within the definition of ?Gang?, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.

10. On a fair reading of the definitions of ?Gang? contained in Section 2(b) and ?Gangster? contained in Section 2(c) of the Gangsters Act, a ?Gangster? means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 17 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ?Gang? and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, 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 and he/she can be termed as ?Gangster? within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act. Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is 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.?

8. A Full Bench of this Court in the case of Ashok Kumar Dixit vs. State of U.P.: AIR 1987 Allahabad 235, has stated about the concept behind lodging of first information report under the Gangsters Act. It has been held in paragraph 73 and 74 as follows:-

"73. In this behalf, provisions of the Act themselves provide intrinsic guidelines. If we advert to Section 2(b) of the Act. which defines the term 'gangster' we would find significant words. They are "acting", 'singly or collectively', 'violence or show of violence', 'intimidation', 'coercion', or unlawful means'. Thus, for booking a person under the provisions of the Act the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.

74. While laying down so, we should not be oblivious of the avowed object of the Act. Under the ordinary criminal law, it is sometimes difficult to bring to book the overlords of crime and underworld because they seldom operate in person or in the public gaze. They indulge in clandestine operations which threaten to tear apart the very fabric of society. It is this purpose which the Act seeks to achieve."

9. In the case of Subhash vs. State of U.P. and another: 1998 SCC Online All 973, a Division Bench of this Court framed the following questions while dealing with a writ petition in which there was a challenge to the first information reports under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The questions as framed are enumerated in paragraph 1 of the judgement which is as follows:-

"1. In all these matters the respective petitioners have challenged their prosecution for an offence under Sections 2 and 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act (in short ''the Act'). Prayers have been made for quashing the respective F.I.Rs. and for interim orders protecting them from arrest. The questions, that have been raised, may be categorised as follows:

1. There could not be prosecution under the Act for a single incident as the Act spoke of "anti-social activities" (in plural).

2. Prosecution under the Act for past offences was not thought of.

3. If at all the Act created a new concept of an offence, there must be some allegation that any act or omission towards the commission of the offence was there.

4. The words "indulges in" as used inSection 2of the Act would only mean that there should be habituality of the acts covered bySection 2."

The answer to the question No.1, and 2 referred in paragraph 1 of the said judgement have been given in paragraph nos. 13 and 14 of the said judgement, which are as follows:-

"13. As a sequel to this decision when there are some allegations of any act or omission towards the commission of the offfence under the Act to justify an F.I.R., it follows that such an F.I.R. could lie even for a single incident as habituality of the acts is not required for making out an offence. The words used inSection 2are no doubt in plural indicating "indulge in anti-social activities" but the sentence does not stop with the words "anti-social activities". It goes on with the word, "viz." followed by 15 clauses of anti-social activities enumerated therein. The plural in "anti-social activities" referred to the large number of activities to be brought under the umbrella of this single offence and it would never mean that there must be plurality of actions before a person could he prosecuted or convicted for an offence under the Act. When a specific offence has been created, it is open to be punished even for a single act, if it is covered by the requirements of law. We, thus, answer point No. 1 framed by us.

14. We are left with the question whether prosecution under the Act was thought of for past offences. We may, for a decision on this point, refer to the definition of the term "gang" as given inSection 2(b)of the Act. The requirement of this definition are that (1) "Gang" means a group of persons, (2) those persons might act either single or collectively, (3) such action is to be associated with violence or threat or show of violence or intimidation or coercion or otherwise, (4) such action must be with the object of disturbing public order or of gaining any undue advantage (temporal pecuniary, material or otherwise) for himself or for any other person. If under the condition of the above points anti-social activities, as enumerated under the definition, are indulged in then and then only the action could be designed as an action of a gang. If a person is a member or a leader or organiser of a gang, or if he abets or assists in the activities of a gang or harbours any person who has indulged in such activities, such person would be a gangster and he is to be punished with the penalty as indicated inSection 3of the Act. All the anti-social activities enumerated under the definition of ''Gang' are not covered as offences, but were certainly unlawful activities having serious reflection on the society, though not termed as offences. The law, thus, never required that offence must have been committed in the past for a proper prosecution under this Act.?

10. Thus, it is clear that the prosecution of an accused under Gangsters Act is permissible even on the basis of a solitary previous case involving the mischief as enumerated in section 2(b) of the Gangster Act. 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 and that even a single crime committed by a ?Gang? is sufficient for prosecution under section section 3(1) Gangsters Act on such members of the ?Gang?. A member of a ?Gang? acting either singly or collectively may be termed as a member of the ?Gang? and comes within the definition of ?Gang?, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Thus, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ?Gang? and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, 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, he/she can be termed as ?Gangster? within the definition of Section 2(c) of the Act and thus, he/she can be prosecuted for the offences under the Gangsters Act.

11. In the instant matter it may be seen that there are allegations in the first information report that co-accused Anand Yadav is running an organized gang, which indulges in crimes like illegal occupation over public property to establish school, fraud and forgery etc for economical, physical and other worldly gains. The applicant Sanjay Sagar and co-accused Suresh Yadav, Nanhk Yadav, Baijnath Yadav, Vindhachal Yadav, Nar Singh Yadav, Vikrrma Yadav, Keshar Singh, Lalji, Sanjay Sagar and Mukhtar Ansari are stated members of the said gang. It was alleged that gang members are habitual of committing crimes mentioned in chapter 17th of Indian Penal Code. In gang chart, one case under section 419/420/467/468/471/120-B IPC was shown against the applicant. It was further alleged in the first information report that due to terror and fear of the gang, no person from public dares to lodge a case against them or to depose against them. Accordingly, a gang chart was prepared and it was forwarded by the Additional S.P. and approved by the Superintendent of Police and the District Magistrate, Mau and first information report was lodged under section 3(1) of the Gangster Act. Material on record discloses that the mischief attributed to the applicant-accused falls within ambit of sub-section 2 (b) of the Gangsters Act. Thus, in view of material on record, it can not be said that no prima facie case is made out against the applicant. At this stage, matter can not be examined meticulously, rather only it is to be seen whether a prima facie case is made or not.

12. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint/ charge sheet and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet/ complaint may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C.. If a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare.

13. The Apex Court in the decision in R.P. Kapur v. State of Punjab A.I.R. 1960 S.C. 866, held that the High Court could not embark upon an enquiry as to whether the evidence is reliable or not while exercising the power under Section 482 Cr.P.C. In State of M.P v. Awadh Kishore Gupta & Ors. (2004) 1 SCC691, the Court held that the High Court could not embark upon an enquiry as to whether the evidence is reliable or not as that would be the function of the Trial Court. In Dr. Monica Kumar & Anr. v. State of Uttar Pradesh & Ors. (2008) 8SCC 781, the Court held that the inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. In Shiji alias Pappu and Ors. v. Radhika and Another AIR 2012 SC 499 , a two Judge Bench of the Apex Court held thus:

??plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 4 (2004) 1 SCC 691 5 (2008) 8 SCC 781 6 AIR 2012 SC 499 Page 9 of 28 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law.?

14. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection. If prima facie case is made out disclosing the ingredients of the offence alleged, the Court cannot quash a criminal proceedings. At this stage court could not embark upon an enquiry as to whether the evidence is reliable or not, while exercising power under Section 482 Cr.P.C. The powers under Section 482 Cr.P.C. cannot be exercised to stifle a legitimate prosecution.

15. Bearing in mind the above referred legal position, in the instant matter, it appears that the contentions raised on behalf of the applicant that applicant has been falsely implicated to settle political score or that the applicant was no role in the incident of crime No. 185/2021 or that the school, to which the grant of 'Vidhayak Nidhi' was made, is being run by the co-accused and applicant has absolutely no connection with the said school or with the alleged grant of 'Vidhayak Nidhi', or that applicant has not been attributed any criminal any specific act, require determination of questions of fact, which is not permissible at this stage. The submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

16. After considering arguments raised by the learned counsel for parties and perusing the complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 CrPC. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C.. Considering material on record and position of settled law as referred above, this court is of view that no case for quashing the impugned proceedings/charge sheet or summoning order is made out.

17. The application filed under section 482 Cr.P.C. is hereby dismissed.

Order Date :- 10.8.2023

Suraj