Rajeev Agarwal vs State Of U.P. And Anr
2023 Latest Caselaw 23535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No.-2023:AHC:173055
 
A.F.R.
 
Court No. - 91
 
Case :- APPLICATION U/S 482 No. - 38502 of 2018 
 
Applicant :- Rajeev Agarwal 
 
Opposite Party :- State Of U.P. And Anr 
 
Counsel for Applicant :- Ashish Kumar Singh,Swetashwa Agarwal 
 
Counsel for Opposite Party :- G.A. 
 
WITH
 
Case :- APPLICATION U/S 482 No. - 3399 of 2019 
 
Applicant :- Ranjan Mittal 
 
Opposite Party :- State Of U.P. And Anr 
 
Counsel for Applicant :- Swetashwa Agarwal,Ashish Kumar Singh
 
Counsel for Opposite Party :- G.A.,Rakesh Dubey 
 
Hon'ble Gajendra Kumar,J.

1. Heard Shri Swetashwa Agarwal, learned counsel for the applicants and learned A.G.A. for the State in both the connected applications as both the applications arise out of same FIR, chargesheet and cognizance order.

2. The instant Applications 482 Cr.P.C. have been filed on behalf of the applicants with a request to quash the entire proceedings of Special Case No.113 of 2018 (State Vs. Ranjan Mittal and another) arising out of case crime/FIR No.125 of 2018, under Sections 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station-Kotwali Nagar, District-Muzaffar Nagar, which is pending in the court of Special Judge, Gangster Act/5th Additional District and Sessions Judge, Muzaffar Nagar along with impugned charge-sheet dated 03.09.20218 as well as cognizance order dated 26.09.0218.

3. The facts of the case in brief are as follows:

The impugned FIR dated 30.01.2018 bearing No.125 of 2018 under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 has been lodged against the applicants on the basis of a single criminal case, which was registered in the year 2015 as case crime No.1063 of 2015, under Sections 420, 467, 468, 471, 120-B IPC, Police Station-Kotwali Nagar, District-Muzaffar Nagar. It is further alleged in the FIR that applicants exercise terror in society and they indulge in heinous offences for their personal, pecuniary and material advantage and their moving freely is not in public interest. They are involved in committing the offences relating to Chapter XVII & XVIII IPC.

4. It is submitted by the learned counsel for the applicants that single base case i.e. case crime No.1063 of 2015, under Sections 420, 467, 468, 471, 120-B IPC, Police Station-Kotwali Nagar District-Muzaffar Nagar was lodged against seven accused persons including the applicants, wherein the allegations of a civil dispute relating to evacuee and non evacuee properties against all seven accused persons including the applicants have been levelled. It has further been alleged that properties in question mostly belong to Government, which is evident from the records obtained from the Tehsildar and with the intention to damage and destroy the same, two deeds dated 26.02.2003 and 01.05.2003 were executed and forged documents were also prepared by the accused persons including the present applicants.

5. It is further submitted that applicants are neither vendees nor vendors of the alleged property, on the basis of which, instant FIR has been lodged against them, which is evident from the sale deed dated 11.10.2001 executed by Jamshed Ali Khan and others in favour Neeraj Jain, as such, on the basis of the allegations made in the impugned FIR dated 30.01.2018 no offences under Sections 420, 467, 468, 471, 120-B IPC are made out against the applicants.

6. Learned counsel for the applicants submitted that in the present case applicants have been falsely implicated on the basis of arbitrary selection and other co accused persons have been left over. In the instant case, approval has also been appended by the District Magistrate, Muzaffar Nagar and S.S.P, Muzaffar Nagar in an arbitrary and mechanical way without any material available on record. Impugned FIR has been lodged on the basis of vague assumption and presumption against the applicant without there being any incriminating material or evidence available on record. It is further submitted that in base case i.e. case crime No.1063 of 2015, on the basis of which, impugned FIR has been lodged, arrest of the applicant Ranjan Mittal was stayed till the submission of police report under Section 173(2) Cr.P.C. by a Division Bench of this Court vide order dated 24.07.2015 in Criminal Misc. Writ Petition No.17767 of 2015. However, upon submission of charge-sheet, the entire criminal proceedings along with charge-sheet in question was challenged before this Court by way of filing Application U/S 482 Cr.P.C. No.7731 of 2018, wherein, a co-ordinate Bench of this Court has granted the interim protection in favour of the applicant Ranjan Mittal and stayed the further proceedings of the case vide order dated 09.03.2018. Vide order dated 12.02.2018 Division Bench of this court stayed arrest of the applicant Ranjan Mittal in Criminal Misc. Writ Petition No.3343 of 2018 in FIR No.125 of 2018, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986. Upon submission of Charge Sheet, further proceedings of Special Case No.113 of 2018 State Vs Ranjan Mittal and another in Application U/S 482 Cr.P.C. No.38502 of 2018 of 2018, was stayed by the court. Likewise in the case of the Applicant Rajeev Agarwal similar orders were passed by this court. Even no cogent evidence was found against the applicants by the concerned Investigating Officer, which is evident from the 'Parchas' submitted by him. The Gang-chart of the case reads as follows:-

GANG-CHART

Sr. No

Name of Accused

Age

Case No.1063/15 u/s 420/467/468/471/120-B

Case no. 14/17 Dated 16.12.17 P.S.-Kotwali, Muzaffarnagar

Current Situation

P

J

L

1.

Rajjan Mittal s/o Manmohan Mittal r/o H.N. 84 Bhopa Road, Muzaffarnagar

✓

✓

-

-

2.

Rajiv Agarwal s/o Vinod Agarwal r/o H.N. 646/22. Jawahar Colony PS Nai Mandi Muzaffarnagar

✓

✓

-

-

7. It is submitted that I.O. has submitted chargesheet against the applicants under the aforesaid sections. It is apparent that without proper forwarding/ recommending/approval of the gang-chart from the authorities concerned, the charge-sheet under the aforesaid section was submitted.

8. It is submitted by the learned counsel appearing for the applicants, that even if all allegations in the impugned FIR and charge-sheet are taken as true, no case under Sections 2/3 of the Act of 1986 is made out against the applicants. In order to support the aforesaid submission, learned counsel has referred to the provisions of the gangster Act of 1986. He submits that there are two essential ingredients to constitute a gang. The two essential ingredients, according to learned counsel for the applicants, are 'violence' or 'disturbance of public order' indulged in by a group of persons, acting either singly or collectively, for the purpose of pecuniary gain etc.

9. It is the learned counsel for the applicants' submission that none of the offences charged against the applicant, either involves violence or the disturbance of public order. Therefore, even if there be allegations about pecuniary gain, the consequences under the Act of 1986 would not be attracted. He next submits that there is one base case registered against the applicants, on the footing of which the present prosecution has been launched under Section 2/3 of the Act of 1986. But, in the crime, the applicants were not involved in any manner in committing the offence as has been alleged in the impugned FIR (base case) as the applicants were neither vendees nor vendors of the alleged property. Therefore, in the submission of the learned counsel, the base case is not available to provide foundation to the prosecution to pursue the present case under the Act of 1986. It is further submitted that the reports submitted by the Tehsildar as well as Investigating Officer also does not show that applicants are having too much property except their parental house. Apart from this case, applicants do not have any criminal history. It is in the last submitted by the learned counsel for the applicants that there is violation of Rule Nos. 5, 6, 13, 15,16 and 17 of The Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021, vitiating the gang-chart. He has emphasized that non-adherence to these rules has vitiated the basis of registration of the crime and a fortiori the police report and the prosecution. He has emphatically submitted that violation of the aforesaid rule is not mere omission but it shows that the proceedings before registering FIR has been carried out mechanically without giving heed to the provisions of law and rules, which are of fundamental importance as any false and malacious prosecution entails serious consequences resulting into the deprivation of life and personal liberty of the accused person, which cannot be deprived except for the procedure established by law as is enshrined in the Article 21 of the Constitution of India. The forwarding, recommending and approving authorities have not paid any heed or attention to relevant law and rules, while exercising their authority with regard to the preparation and approval of the gang-chart. The whole exercise on their part has been carried out without application of mind.

10. On the other hand, in response to the notice issued to respondents, counter affidavits were filed which are duly sworn by Anil Kapparwan, presently posted as Inspector (In-charge), Police Station-Kairana, District-Shamli and by Chandan singh, presently posted as sub-Inspector, Police station, Kotwali Nagar, District-Muzaffar Nagar, in which all the allegations and averments made in the affidavits filed in support of the applications under section 482 cr.p.c. have been totally denied and it is asserted in paragraph no.4 that accused are hardened criminals and are gang leader and member. They together used to commit crimes for pecuniary and temporal gains.

11. In response to the counter affidavits filed by the opposite parties, rejoinder affidavits were filed in which, the allegations and averments made in the counter affidavits were denied and in paragraph no.6, it is mentioned that applicants have no concern with the base case as they were neither vendees nor vendors of the alleged property.

12. Upon hearing learned Counsel for the parties, this Court is of opinion that in order to consider the submissions of learned counsel for the applicants as well as learned counsel for the State, it is imperative to refer to the relevant provisions of the Act of 1986, which reads as follows:

As the Act being a special statute- The Act is a special statute which has been enacted for the prevention of and for coping with gangsterism and anti-social activities. The Object and reasons as well as preamble are quoted hereinbelow:-

Objects and reasons of the Act:-

Gangsterism and anti-social activities influenced the State Legislature in making introduction of such Act. The objects and reasons of the Act are that gangsterism and anti-social activities were on the increase in the state posing threat to lives and properties of the citizens. The existing measures were not found effective enough to cope with new menace. With a view to break the gangs by punishing the gangsters and to nip their conspirational designs, it was considered necessary to make special provision for the prevention of and for coping with gangsters and anti-social activities in the State. [Ashok Kumar Dixit v. State of U.P., 1987 (34) ACC 164: 1987 ACFR 230 AIR 1987 (All) 235 (All HC, FB)].

Preamble of Act.-The Act seeks to punish declared criminals who have deliberately chosen the life of crime. The activities of these professional perpetrators of organised crimes, violence and orgy has a far more baneful effect on the health and morals of the society and its people. If the activities of such recidivist are subjected to same punishment as that other ordinary criminals, the confidence of public in the efficacy and efficiency of State Administration is bound to shake. [Ashok Kumar Dixit v. State of U.P., 1987 (34) ACC 164: 1987 ACTR 230: AIR 1987 (All) 235 (All HC, FB)].

13. It is important to refer to the relevant provisions of the Act of 1986, which reads as follows:-

"2. Definitions.--In this Act,--

(a) x x x

(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 (Act no. 2 of 1974), 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 or any other law for the time being in force, or

(iii) occupying or talking 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 (Act no. 61 of 1985)

(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 Art, 1956, or

(vi) offences punishable under section 3 of the Public Gambling Act, 1867 (Act no. 104 of 1956), 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 right 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, 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 to Animals 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 the Unlawful 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 of Sections 5, 7 and 12 of the Arms Act, 1959;

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

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

(xxv) 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;

14. A perusal of the aforesaid provisions shows that violence or disturbance of public order alone are not the sine qua non of a gang as defined under the Act of 1986. It postulates a group of persons, who either acting singly or collectively, employ violence, or threat or show of violence, or intimidation, or coercion, ''or otherwise' with the object of (i) disturbing public order; (ii) or of gaining any undue temporal, pecuniary, material; or other advantage for himself or any other person, indulge in anti-social activities, enumerated in clauses (i) to (xxii) of sub-Section (b) of Section 2 of the Act of 1986.

15. It is a well settled cannon of statutory interpretation that a statute should be read and understood according to its plain grammatical meaning, unless that construction leads to an absurd result, or defeats the object and the very purpose of it.

16. Learned counsel for the applicants has also drawn attention towards the mandatory compliance with the provisions of Rule 5, 6, 13, 15, 16 and 17 of the Rules of 2021 framed under the Act of 1986. These Rules have been made by the State Government in exercise of powers under Section 23 of the Act of 1986 to carry out its purposes. Rule Nos.5, 6, 13, 15, 16 and 17 are extracted below:

"5. General Rules.--(1) To initiate proceedings under this Act, the concerned In-charge of Police Station/Station House Officer/Inspector shall prepare a gang chart mentioning the details of criminal activities of the gang.

(2) The gang-chart will be presented to the district head of police after clear recommendation of the Additional Superintendent of Police mentioning the detailed activities in relation to all the persons of the said gang.

(3) The following provisions shall be complied with in respect of gang-charts--

(a). The gang-chart will not be approved summarily but after due discussion in a joint meeting of the Commissioner of Police/District Magistrate/Senior Superintendent of Police/Superintendent of Police.

(b). There may be no gang of one person but there may be a gang of known and other unknown persons and in that form the gang-chart may be approved as per these rules.

(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.

(d). Those cases shall not be mentioned in the gang-chart, on the basis of which action has already been taken once under this Act.

(e). A separate list of criminal history, as given in Form No.--4, shall be attached with the gang-chart detailing all the criminal activities of that gang and mentioning all the criminal cases, even if acquittal has been granted in those cases or even where final report has been submitted in the absence of evidence.

Along with the above, a certified copy of the gang register kept at the police station shall also be attached with the gang-chart. In addition to the above, the information of crime and gang members mentioned in the gang-chart will also be updated on Interoperable Criminal Justice System (ICJS) portal and Crime and Criminal Tracking Network System (CCTNS).

6. Relevant provision of the Act to be specifically mentioned.-(1) 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 Act along with the relevant provision.

(2) If the Investigating Officer makes an endorsement to the effect that the accused is causing panic, alarm or terror in public, then evidence shall be collected in this regard.

To initiate proceedings under this Act, the concerned In-charge of Police Station/Station House Officer/Inspector shall prepare a gang chart mentioning the details of criminal activities of the gang.

13. Specific statement of offences committed for economic, material and temporal or similar other benefits.- While writing the abstract below the gang-chart and particulars separately with the gang-chart, the particulars of those offences shall be specifically mentioned:

(I) which have been committed for pecuniary, materialistic and temporal or similar benefits; or

(ii) which disturb the public order; or

(iii) which are a ground for detention under the National Security Act, 1980 (Act No.65 of 1980).

15. Arbitrary selection of gang/member of gang prohibited.-(1) There should not be a situation of arbitrary selection against any gang under this Act.

(2) If action is not to be taken against any mEmber of a gang who has committed a criminal act in association with the said gang, then in such a case clear and reasonable grounds for not mentioning his name in the gang-chart shall be recorded with reasons and evidences.

(3) The final decision as to whether to include or not to include the name of member of a gang in the gang and gang-chart shall be at the discretion of the commissioner of Police/District Magistrate.

16. Forwarding of Gang-Chart.--

The following manner shall be followed in the forwarding of Gang-Chart:

(1) Forwarding of the gang-chart by the Additional Superintendent of Police:- The Additional Superintendent of Police will not only take a quick forwarding action in the case but he will duly peruse the gang-chart and all the attached forms; and when it is satisfied that there is a just and satisfactory basis to pursue the case, only then will he forward the letter along with the recommendation given below on the gang-chart to the Superintendent of Police/Senior Superintendent of Police.

'Throughly studied the gang-chart and attached evidence. The basis of action under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 exists. Accordingly, forwarded with recommendation."

(2) Forwarding of the gang-chart by the district police in-charge:- When the gang-chart along with all the Forms is received by the Senior Superintendent of Police/Superintendent of Police with the clear recommendation of the Additional Superintendent of Police, he will also thoroughly analyse all the facts and when it is confirmed that all the formalities of the Act have been fulfilled and there is a legal basis for taking action in the case, then he should forward the gang-chart to the Commissioner of Police/District Magistrate stating that: "I have duly perused the gang-chart and attached forms and I am fully satisfied that all the particulars mentioned in the case are correct and there is a satisfactory basis for taking action under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Accordingly, approved."

(3) Resolution of the Commissioner of Police/District Magistrate:- When the gang-chart is sent to the Commissioner of Police/District Magistrate along with all the Forms, all the facts will also be thoroughly perused by the Commissioner of Police/District Magistrate and when he is satisfied that the basis of action exists in the case, then he will approve the gang-chart stating therein that: "I duly perused the gang-chart and attached Forms in the light of the evidence attached with the gang-chart satisfactory grounds exist for taking action under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The gang-chart is approved accordingly."

It is noteworthy that the words written above are only illustrative. There is no compulsion to write the same verbatim but it is necessary that the meaning of approval should be the same as the recommendations written above, and it should also be clear from the note of approval marked.

17. Use of independent mind.--

(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."

17. Thus from perusal of the Rules, all that is required by Rules is that the Authorities recommending registration of a case under the Act of 1986 should come to the conclusion with an independent application of mind that a case under the Act of 1986 ought to be registered. Likewise, the Authorities approving the gang-chart should also come to the conclusion on an independent application of mind that a case under the Act of 1986 ought to be registered against the accused on the basis of the activities of the gang. However there is no prescription for the employment of particular words to serve as index of due application of mind.

18. It is pertinent to note here that the above noted rules of 2021 are in the form of procedural safeguards in relation to offences under the Gangsters Act. Even before these Rules of 2021, certain safequards were already, in place, in one way and the another in the form of G.Os. and Notifications/Communications issued by the Government/Executive Authority/Police Authority. These were all ad hoc Procedural Safequards to be observed and complied with by the concerned authorities while dealing with gangster cases, just to make a stop gap arrangement and an effort to plug the void, in place of formal Rules as contemplated by Section 23 of the Act.

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4& fdlh fxjksg ds fo:) dk;Zokgh izkjEHk djus ds fy, Fkkuk/;{k }kjk fxjksg ds vkijkf/kd fooj.k dk mYys[k djrs gq, pkVZ rS;kj fd;k tk;sxk rFkk pkVZ ds vfrfjDr fxjksg ds fdz;k dykiksa dk fooj.k nsrs gq, rFkk fxjksg ds fdu&fdu O;fDr;ksa ds fo:) dk;Zokgh fd;k tkuk izLrkfor gS] mldk Li"V mYys[k djrs gq, izfrosnu izLrqr fd;k tk;sxk tks {ks=kf/kdkjh rFkk vij iqfyl v/kh{kd dh Li"V laLrqfr ds ckn ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd dks izLrqr fd;k tk;sxk A

5& ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh vius Lrj ij fxjksg ds lnL;ksa ds vkijkf/kd fooj.k rFkk muds fØ;k dykiksa dk Hkyh Hkakfr ijh{k.k ds mijkUr ftykf/kdkjh ds lkFk fopkj&foe'kZ djds lwph dks vfUre :i iznku djsaxsA

6& izfrosnu rFkk xSax pkVZ ij ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd ,oa ftykf/kdkjh ds vuqeksnu ds mijkUr vfxze dk;Zokgh dh tk;sxh A

7& bl vf/kfu;e ds vUrxZr iathd`r vfHk;ksxksa dh foospuk vfuok;Zr% Fkkuk izHkkjh }kjk dh tkuh pkfg, A

8& bl vf/kfu;e ds vUrxZr iathd`r vfHk;ksxksa dh foospuk ds ckn vkjksi&i= Hkstus ls iwoZ ftykf/kdkjh ls lgefr izkIr dj yh tk;sxhA

9& foospuk dh vof/k esa ek0 mPpre U;k;ky; ds vkj0 ljyk cuke Vh0,l0 osy ,oa vU; esa ikfjr fu.kZ; fnukad 13 vizSy] 2002 dk Hkh vuqikyu fd;k tk;sA

19. Here, it is pertinent to mention here that above letters were issued by the D.G. Police and thereafter G.O. Dated 02.01.2004, pursuant to the direction given by this Court while deciding Writ Petition No. 6249/2003 Inre: Amar Nath Dubey Vs. State of U.P.

20. Noticing the above letter, and the direction contained in the order of Division Bench of this Court, Principal Secretary (Homes) issued yet another set of procedure/instruction mentioning therein the manner in which gang chart in relation to offences under the Gangsters Act has to be prepared. These were all ad hoc practices adopted by higher bureaucracy just to make a stop gap arrangement and an effort to plug the void, in place of formal Rules as contemplated by Section 23 of the Act. Clause 2 of these instructions would indicate the details of information that has to be contained therein. The said instruction issued by Principal Secretary Homes, in the shape of Government Order is extracted herein below: -

"la[;k 137 iz0la0@6&iq0&11&2003&58¼fjV½@2003

izs"kd]

vfuy dqekj]

izeq[k lfpo]

m0iz0 'kkluA

lsok esa]

leLr ftykf/kdkjh]

tuinh; ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd]

mRrj izns'kA

x`g ¼iqfyl½ vuqHkkx&11 y[kum fnukad 2 tuojh 2004

egksn;]

ek0 mPp U;k;ky;] bykgkckn ds }kjk fjV ;kfpdk la[;k 6249@2003 vejukFk nqcs cuke m0iz0 jkT; ,oa vU; esa m0iz0 fxjksgcUn o lektfcjks/kh fØ;k dyki fuokj.k vf/kfu;e ds nq:i;ksx ij fpUrk O;Dr dh gSA ek0 mPp U;k;ky; us m0iz0 fxjksgcUn fuokj.k vf/kfu;e m0iz0 xq.Mk vf/kfu;e ,oa ,u0Mh0ih0,l0 vf/kfu;e ds lE;d mi;ksx gsrq vko';d fn'kk funsZ'k tkjh djus ,oa nq:i;ksx jksdus gsrq ;Fkksfpr dne mBkus ds fy, dMs funsZ'k fn;s gS A

bu vf/kfu;eksa ds lE;d lnqi;ksx djus ,oa buds nq:i;ksx ds jksdFkke gsrq le; le; ij foLr`r funsZ'k iwoZ esa tkjh fd;s x;s gSA ijUrq ,slk izrhr gksrk gS fd bu vf/kfu;eksa dk nq:i;ksx jksdus ds fy, 'kklu@iqfyl egkfuns'kd] m0iz0 }kjk tks fn'kk funsZ'k tkjh fd;s x;s gS] mudk dMkbZ ls vuqikyu ugha fd;k tk jgk gSA vki lger gksxsa fd funksZ"k o fujijk/k O;fDr;ksa ds fo:) bu vf/kfu;eksa ds vUrxZr fn;s x;s vf/kdkjksa dk nq:i;ksx dqN vf/kdkfj;ksa }kjk fd;s tkus ds dkj.k 'kklu ,oa iqfyl foHkkx dh Nfo ij izfrdwy izHkko iMrk gSA

vr% bl lEcU/k esa iqu% fuEufyf[kr fn'kk funsZ'k fn;s tk jgs gS] ftudk dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;s&

1& leLr Fkkuk izHkkjh] {ks=kf/kdkjh] vij iqfyl v/kh{kd ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd] izHkkjh tuin ,oa ftykf/kdkjh bl vf/kfu;e esa fn;s x;s izkfo/kkuksa dk v/;;u djds bldks Hkyh Hkafr le> ysaA bl gsrq ;g tku ysuk jgsxk fd tuin Lrj ij ,d dk;Z'kkyk vk;ksftr djk yh tk;s ftlesa lHkh vf/kdkfj;ksa ds vykok tuin ds ftyk 'kkldh; vf/koDrk& QkStnkjh ,oa T;s"B vfHk;kstu vf/kdkjh izHkkjh Hkh vo'; mifLFkr jgsA ;fn fdlh vf/kdkjh dh fdlh Lrj ij bu vf/kfu;eksa ds fdlh izkfo/kku ds ckjs esa fdlh izdkj dh dksbZ 'kadk gks rks bl dk;Z'kkyk esa mudk fujkdj.k djk fy;k tk;sA

2& bu vf/kfu;eksa ds lE;d iz;ksx djus] n:i;ksx jksdus ds lEcU/k esa bl vkns'k ds ek/;e ls fuEuor fn'kk funsZ'k vkidks fn;s tk jgs gSA d`i;k budk dMkbZ ls vuqikyu lqfuf'pr djk;s &

m0iz0 fxjksgcUn ,oa lekt fojks/kh fØ;k dyki ¼fuokj.k½ vf/kfu;e ds lE;d mi;ksx djus@nq:i;ksx jksdus ds lEcU/k esa fn'kk funsZ'k&

1& bl vf/kfu;e ds vUrxZr dk;Zokgh dsoy mUgha vijkf/k;ksa ds fo:) dh tk;s] ftudh vkijkf/kd xfrfof/k bl vf/kfu;e esa fn;s x;s izkfo/kku dh ifjf/k ds vUrxZr vkrh gS A

2& fdlh fxjksg ds fo:) dk;Zokgh izkjEHk djus ds fy, Fkkuk izHkkjh }kjk fxjksg ds vkijkf/kd fooj.k dk mYys[k djrs gq, pkVZ rS;kj fd;k tk;sxk rFkk pkVZ ds vfrfjDr fxjksg ds fØ;k dykiksa dk fooj.k nsrs gq, rFkk fxjksg ds fdu fdu O;fDr;ksa ds fo:) dk;Zokgh fd;k tkuk izLrkfor gS] mldk Li"V mYys[k djrs gq, vk[;k izLrqr dh tk;sxh] tks {ks=kf/kdkjh rFkk vij iqfyl v/kh{kd dh Li"V laLrqfr ds ckn ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh dks izLrqr dh tk;sA

3& ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh vius Lrj ij fxjksg ds lnL;ksa ds vijkf/kd fooj.k rFkk muds fØ;k dykiksa dk Hkyh Hkakfr ijh{k.kr ds mijkUr ftykf/kdkjh ds lkFk fopkj foe'kZ djds bl lwph dks vfUre :i iznku djsaxsA

4& mDr vk[;k rFkk xSax pkVZ ij ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh ,oa ftykf/kdkjh ds vuqeksnu ds mijkUr vfxze dk;Zokgh dh tk;sxhA

5& fdlh Hkh fxjksg ds fo:) dk;Zokgh djus ds fy, mlds fo:) dsoy mUgha ekeyksa dks vijkf/kd lwph esa lfEefyr ekuuk pkfg,] ftu ekeyksa esa iqfyl }kjk foospuk ds mijkUr vkjksi i= izsf"kr fd;k tk pqdk gSA ftu ekeyksa esa vfUre fjiksVZ izsf"kr dh tk pqdh gS ;k U;k;ky; }kjk fopkj.k ds mijkUr vfHk;qDr dks nks"keqDr fd;k tk pqdk gS mls vkijkf/kd fooj.k esa lfEefyr u fd;k tk;sA

6& ftu ekeyksa ds vk/kkj ij m0iz0 lekt fojks/kh fdz;k dyki ,oa fxjksgcUn vf/kfu;e ds vUrxZr dk;Zokgh dh x;h gS] mlh vk/kkj ij iqu% dk;Zokgh u dh tk;sA vFkkZr fdlh fxjksg ds fo:) m0iz0 lekt fojks/kh fØ;k dyki ,oa fxjksgcUn vf/kfu;e ds vUrxZr dk;Zokgh djus ds ckn dksbZ u;k vkijkf/kd d`R; tks bl vf/kfu;e ds izkfo/kkuksa dh ifjf/k esa gks] izdk'k esa vkus ij gh m0iz0 lekt fojks/kh fØ;k dyki ds vUrxZr dk;Zokgh dh tk;s A

7& bl vf/kfu;e ds vUrxZr iathd`r vfHk;ksxksa dh foospuk vfuok;Zr% nwljs Fkkus ds izHkkjh }kjk dh tkuh pkfg, A

8& bl vf/kfu;e ds vUrxZr iathd`r vfHk;ksxksa dh foospuk ds ckn ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh ls vuqeksnu izkIr djus ds mijkUr gh vkjksi i= U;k;ky; izsf"kr fd;k tk;A

9& xjksgcUn vf/kfu;e ds vUrxZr eqdnek iathd`r djus ds mijkUr foospuk ds i'pkr U;k;ky; vkjksi i= izsf"kr djus gsrq vuqeksnu nsus ds iwoZ ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh dks Hkyh Hkafr larq"V gks ysuk pkfg, fd okLro esa ekeyk fxjksgxUn vf/kfu;e dh ifjf/k esa vkrk gS vFkok ughaA

10& ;gka ;g Hkh Li"V fd;k tkrk gS fd ;fn fdlh tuin esa bl vf/kfu;e esa fn;s x;s izkfo/kkuksa ds lEcU/k esa fdlh v/khuLFk vf/kdkjh }kjk vius drZO; ikyu dh mis{kk djus vFkok vius vf/kdkj dk nq:i;ksx dk dksbZ ekeyk izdk'k esa vkrk gS rks lEcfU/kr Fkkuk izHkkjh ,oa nks"kh ik;s x;s vf/kdkjh ds vykok tuin ds ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh Hkh mRrjnk;h ekus tk;saxsA

XXX XXXX XXX XXX XXXX XX XXX

lkekU; funsZ'k&

1& bu fn'kk&funsZ'kksa ds vuqikyu lqfuf'pr djkus dh ftEesnkjh tuin ds ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh dh gSA

2& ;fn fdlh tuin esa bu vf/kfu;eksa ds nq:i;ksx fd;s tkus dk dksbZ ekeyk izdk'k esa vk;s] rks fdlh Hkh Lrj ij nks"kh vf/kdkfj;ksa@deZpkfj;ksa dks cpkus dk iz;kl u fd;k tk;s] ojUk nks"k fu/kkZj.k djrs gq, rRijrk ls nks"kh ds fo:) dk;Zokgh dh tk;sA

3& bu vf/kfu;eksa ds vUrxZr fn;s x;s izkfo/kkuksa dk nq:i;ksx fd;s tkus dk ;fn dksbZ ekeyk izFke n`"V;k lgh ik;k tk;s rks lEcfU/kr Fkkus ds izHkkjh ,oa vU; nks"kh v/khuLFk iqfyl dfeZ;ksa dks Fkkus ls gVk fn;k tk;s ,oa rRijrk ls tkap djkdj muds fo:) n.MkRed dk;Zokgh dh tk;sA

4& izR;sd ekg ftykf/kdkjh ,oa ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd] izHkkjh viuh ekfld xks"Bh esa bl vkns'k ds ek/;e ls fn;s tk jgs fn'kk&funsZ'kksa ds vuqikyu ds lEcU/k esa Hkh vuqJo.k fd;k djsaxsA

5& lHkh dks ;g Li"V fd;k tkrk gS fd 'kklu vFkok iqfyl egkfuns'kd m0iz0 ds laKku esa ;fn dksbZ ,slk ekeyk vkrk gS fd fdlh ekeys esa bu vf/kfu;eksa dk nq:i;ksx fd;s tkus dh tkudkjh ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh dks gksus ds if'pkr Hkh ihfMr i{k dks U;k; ugha fnyk;k x;k vFkok nks"kh vf/kdkjh] deZpkjh ds fo:) ;Fks"B dk;Zokgh ugha dh x;h gS] rks ,sls ekeyksa esa ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh ftEesnkj ekus tk;saxsA

Hkonh;]

¼vfuy dqekj½

izeq[k lfpo

la[;k ,oa fnukad rnSo

izfrfyfi&fuEufyf[kr dks vko';d dk;Zokgh gsrq&

1& iqfyl egkfuns'kd] m0iz0A

2& iqfyl egkfuns'kd] vfHk;kstu] m0iz0A

3& vij iqfyl egkfuns'kd] lh ch lh vkbZ Mh] m0iz0A

4& vij iqfyl egkfuns'kd] jsyost] m0iz0

vkKk ls]

¼nhfidk nqXxy½

fo'ks"k lfpo

la[;k ,oa fnukad rnSo

izfrfyfi&fuEufyf[kr dks vuqikyu lqfuf'pr djkus gsrq&

1& leLr e.My vk;qDr] m0iz0A

2& leLr iqfyl egkfujh{kd] tksu m0iz0A

3& leLr ifj{ks=h; miegkfujh{kd] m0iz0A

vkKk l]s

¼nhfidk nqXxy½

fo'ks"k lfpo

21. It will be apt to take note of what has been held and observed by the Apex Court as well as the High Court with regard to the interpretation and application of the various provisions of the Act.

Status of criminal, not punishable- It is not the status of criminal, but the act which is made punishable. The activities of gangsters are offence under the Act since they pose grave threat to the even tempo of the society and, therefore, call for sterner and more deterrent punishment and speedier trial and early booking. (Ashok Kumar Dixit Vs. State of U.P.; 1987 (34) ACC 164).

The person who not liable to be punished- A person is not liable to be punished under the Act merely because he happens to be a member of a group. He comes within the clutches of the Act, when he chooses to join a group which indulges in any anti-social activities defined under the Act with use of force for gaining material and advantage to himself or any other person. (Ashok Kumar Dixit Vs. State of U.P.; 1987 (34) ACC 164).

Duty of the State to protect personal liberty of its citizens- Duty of State to protect personal liberty of its citizens, the State is duty bound to protect personal liberty of its citizens beyond doubt which is fundamentally guaranteed under Article 21 of the Constitution of India (Vimal Shukla Vs. State of U.P.; 2019 (1) ARC 299).

Necessity of deeper application of mind- The imposition of Gangsters Act calls for a deeper application of mind and the satisfaction of the authorities must be based on a definite opinion against an accused person.

(Shubhankar Gupta Vs. State of U.P.; (2019) 1 A.Cr.R. 2)

Caution for misuse of the provisions- The provisions of the Act cannot be used as a weapon to wreck vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts. The prosecution has to bear in mind that it has to bring home the guilt. (Ashok Kumar Dixit Vs. State of U.P.; 2007 (2) ACC 683 Alld.)

Judicial scrutiny of the subjective satisfaction- In Gangster Act, a subjective satisfaction is open to limited judicial scrutiny, therefore, it would be wrong to contend that there is a complete embargo on the powers of Court to look at the sufficiency of the ground from any perspective. [Parvez Vs. State of U.P.; 2021 Crl.J. 4034 (All)(LB)].

There can be prosecution for single offence/FIR/chargesheet- 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 inclause (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, 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/chargesheet 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. [Shraddha Gupta Vs. State of U.P. and others; (2022) 17 S.C.R. 622 (Para 10)(635-B-G)].

22. This Court has the occasion to go through the recent judgment of Apex Court in the case of Sri Gulam Mustafa Vs. The State of Karnataka and another; (2023) 5 S.C.R. 354. The relevant paragraphs of the aforesaid order reads as under:-

Held: 1.1- The mere fact that the offence is covered under a 'special statute' would not inhibit this Court or the High Court from exercising their respective powers under Article 142 of the Constitution or Section 482 of the Code. [Para-34] [369-C-D].

"36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.

1.5.- The High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside. [Para 39] [371-C-D]"

23. Considering the instant case in the light of the provisions of the Act and relevant Rules, it is evident that the gang chart in this case has been approved summarily without adopting due process of law as is apparent from the perusal of the gang chart. Furthermore there is no specific mention of offences which have been committed for pecuniar, materialistic and temporal or similar benefits or which disturb the public order as per Rules. Furthermore, quick forwarding action has been taken in this case without caring for the compliance of the relevant rules. There should be satisfaction recorded to the effect that there is just and legal basis for taking action under the Act and there is satisfactory basis for persuing the case. The satisfaction so recorded should be there by using the mind independently but in the instant case the same is missing.

24. Considering the aforesaid submissions made by the learned counsel for the parties as well as perusal of records, it is evident from the records that at the time of approving the gang-chart, District Magistrate did not apply his mind as no reasons are recorded by him, resultantly, the lodging of FIR under Gangster Act is with malafide intention, in violation of the procedural safeguards, which shows that forwarding/ recommending authorities as well as approving authority acted mechanically and the whole exercise lacks application of mind on the parts of the authorities concerned. The applicants have fundamental right to life which include to live with honour and dignity and fundamental right of under Article 21 of the Constitution of India cannot be interferred with lightly. The applicants have been deprived of their liberty by the mechanical excecise/procedure undertaken on the part of the authorities concerned.

25. The procedural compliance in cases of gangster Act is of utmost importance, departure from the due process of law will give chance and provide fodder to the vested interests with singular agenda to spread false narratives. Verily, gangsterism poses an ominious threat to public order. Vile and abhorrent acts of gangsterism do evoke collective societal anger and anguish. While the war against gangsterism must be waged by the State with unwavering resolve but a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integrated facet of the due process of law, at the altar of perceived peril to public order.

"The Siren Song that the 'end justifies the means', and that the procedural safeguards are subdervient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by voice of Rule of Law."

26. For all the reasons recorded above, the court is of the view that at the stage of preparing and approving the gang-chart on the basis of materials placed, the competent Authorities should have satisfied themselves that there is a legal basis and justifiction for taking and persuing action against the accused under the Act of 1986. At the stage of approval of the gang-chart, the approving Authority has to be satisfied that a case for action under the Act of 1986 is made out and that satisfaction should be reflected from the gang chart and other records. But in this case, the competent authorities, unhesitatingly just paid lip service to the legislative mandate and unfortunately had undertaken the whole exercise of preparation and approval of the gang chart as a ritualistic formality without due application of mind.

27. From perusal of records, it is also apparent that Mr. Neeraj Jain purchased the disputed land regarding which the base case was registered and resultantly Gangster Act was imposed on the applicants. Neeraj Jain contested the civil case at the very stages i.e. Board of Revenue, High Court and even upto Supreme Court, from which, it is apparent that he has taken resort to lawful means by way of litigation in the civil and revenue courts. By no stretch of imagination, it can be inferred and said that by indulging in civil litigation, it can be said that applicants have indulged in anti-social activities. Moreover, it is also noteworthy that applicants are not party to the civil litigation. Neeraj Jain who has faught and still fighting civil case has not been made accused which shows that District Magistrate has arbitrarily selected the applicants while imposing Gangster Act against them. No reasons whatsoever have been given with respect of Neeraj Jain who has not been prosecuted if the intention was there to damage and destroy the Government Property. Thus, civil dispute relating to land has been given colour and flavour of criminality and is unnecessarily given shape of act of gangsterism and anti social activities on the part of police and administrative authorities. Report submitted by the Tehsildar called by the Investigating Officer also does not show that applicants are having too much property except their parental houses. Apart from this case, applicants do not have any criminal history. The initiation and continuation of the entire criminal proceedings is persecution and harassment of the accused, amounting to be sheer abuse of process of law as well as abuse of process of court, that is in order to otherwise ensure the ends of justice is liable to be quashed.

28. In such view of the matter, the entire proceedings of Special Case No.113 of 2018 (State Vs. Ranjan Mittal and another) arising out of case crime/FIR No.125 of 2018, under Sections 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station-Kotwali Nagar, District-Muzaffar Nagar, which is pending in the court of Special Judge, Gangster Act/5th Additional District and Sessions Judge, Muzaffar Nagar along with impugned charge-sheet dated 03.09.20218 as well as cognizance order dated 26.09.0218 is, hereby, quashed against the applicants namely Rajeev Agarwal and Ranjan Mittal.

29. The Applications are, accordingly, allowed.

30. A copy of this order be sent back to the lower court forthwith.

Order date:-28.08.2023

Ashutosh

(Gajendra Kumar, J.)