Rahul Saxena Alias Bhola / Bholu vs State Of U.P. And 3 Others
2023 Latest Caselaw 23550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172558-DB
 
(AFR) 
 
Reserved on 23.08.2023
 
Delivered on 28.08.2023
 

 
Court No. - 43
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12808 of 2023
 
Petitioner :- Rahul Saxena Alias Bhola / Bholu
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Nagesh Kumar Dwivedi,Ashwini Kumar,Sushil Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Vivek Kumar Singh,J.

1. Learned counsel for the petitioner has filed supplementary affidavit in the Court today which is taken on record.

2. Heard learned counsel for the petitioner and learned A.G.A. for the State.

3. The instant writ petition seeks quashing of the FIR dated 26.07.2023 giving rise to Case Crime No.0303 of 2023, under Sections 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act., Police Station- Kila, District- Bareilly.

4. The contention of learned counsel for the petitioner is that the provisions of the Gangsters Act have been invoked against the petitioner on the basis of two base cases. However, the investigation in the base cases was not complete. He has also vehemently argued that Rule 5 and 10 of the U.P. Gangsters and Anti-Social Activities (Prevention) Rules have not been complied with. The first information report is, therefore, illegal and is liable to be set aside.

5. He has also submitted that the papers which were required to be forwarded to the approving authority lack the certified copy of the charge-sheets of base cases and the recovery memos. These were not sent along with the documents, for approval. He submits that a certified copy means a copy issued from the Court. Since, the charge-sheet had not been submitted in court, no certified copy could have been issued or annexed with the gang chart at the point in time it was approved by the approving authority.

6. Learned counsel for the petitioner also paced reliance on the judgments of this being Master @ Ramzan Vs. State of U.P. through Principal Secretary Home and others 2020 0 Supreme (All) 855 and Ankit Sharma @ Ankit Kumar Vs. State of U.P. 2022 LawSuit(All) 1595 in support of his submissions.

7. Learned AGA has opposed the writ petition and has stated that the gang chart, copy whereof is annexed with the supplementary affidavit, specifically mentions two base cases against the petitioners being Case Crime No. 88 of 2022 under Section 420 IPC, Police Station-Kila, District-Bareilly wherein the charge-sheet No. 151A/2022 is dated 12.06.2023 and the other base case is Case Crime No. 89 of 2022 under Section 3/4 of the Gambling Act, Police Station Kila, District Bareilly wherein charge-sheet No. 152A of 2022 is also dated 12.06.2023. Therefore, the submission of learned counsel for the petitioner lacks merit.

8. We have considered the submissions made by learned counsel for the parties and perused the record. Primarily, the submission of the learned counsel for the petitioner is that the words "certified copy" used in Rule 10(1) means a certified copy issued by the Court. It is, therefore, the contention that till such time the charge-sheet in the base cases has not been filed before the Court, no action on its basis can be taken under the provisions of the Gangsters Act. This is the also import of the two judgments that have been cited by learned counsel for the petitioner.

9. The import of words certified copy have been considered by this Court in the judgment dated 02.05.2023 in Crl. Misc. Writ Petition No. 19638 of 2022 Binni Lala @ Vinod Kumar Jain Vs. State of U.P and others. It has been held as follows:

"The term certified copy has not been defined either in the Indian Penal Code, the Criminal Procedure Code or the U.P. Gangsters and Anti Social Activities (Prevention) Act or the Rules framed thereunder.

"The definition of the phrase as per the Law Lexicon, 3rd Edition, 2012, as follows:-

Certified copy: A copy of a document signed and certified as a true copy by the officer to whose custody the original in entrusted. A certified copy of a deed imports that it is an office copy taken from the record of deeds and certified by the proper officer."

The Law Lexicon also states that a copy, which is certified to be true in terms of Section 76 of the Evidence Act is also a certified copy. It also means an authenticated copy and a certificate issued by an officer is only a written declaration of the fact that the copy is a true copy of the original.

Black's Law Dictionary Eight Edition (South Asian Edition), defines a 'certified copy' as a duplicate of an original, usually an official document, certified as an exact reproduction, usually by the officer responsible for issuing or keeping the original.

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Under the circumstances, it is difficult to accept the argument of learned counsel for the petitioner that a certified copy means a copy issued by the Court on payment of charges, as is understood in common parlance. It is not the case of the petitioner that the charge-sheet appended along with gang chart was not certified by the SHO as being a true copy of the original. The gang chart that has been prepared on the basis of the charge-sheet annexed along with it is therefore a valid document and the submission that there was non compliance of the Rule 10(1) of the Rules cannot be accepted.

The second limb of the argument of learned counsel for the petitioner that a charge-sheet on the basis of which a gang chart has been prepared must be one filed in Court and cognizance thereof must have been taken before the same could be relied upon to invoke the provisions of the Gangsters Act is something which is not to be found in the relevant rule namely Rule 10. This argument cannot be accepted also because Rule 5(c) provides that the Gang Chart shall not approved without the investigation in the base case having been completed. An investigation is treated as complete after the investigation officer prepares the charge-sheet and forwards it to his superior for approval."

10. Therefore, the submission of learned counsel for the petitioner that a certified copy means a certified copy issued by the Court has not been accepted in the judgment aforesaid. Accepting the reasoning, the first contention of learned counsel for the petitioner cannot be accepted.

11. The second submission of learned counsel for the petitioner is that the requisite documents specified in the Rule 10 of the Rules did not form part of the dossier which were sent to the approving authority for grant of approval. Averments in this regard are to be found in paragraph 52 and 54 of the supplementary affidavit which read as follows;-

"52. That in the present case the Police did not annexed the certified copy of charge-sheet and the recovery memo along with the Gang Chart. The entire proceeding for the approval of gang chart is absolutely illegal and is arbitrary in manner.

54. That after going through the aforesaid facts and circumstances of the case it is clear that no provisions of Rule-5, 8 and 10 of the Rules, 2021 complied. The Investigating Officer giving a wrong impression that the charge sheet has been submitted, therefore, in such circumstances required under Rule-8(5) would be warranted, which clearly mentioned that on discovering an adverse situation the Incharge of Public Station shall be held liable for the negligence of department and criminal proceeding."

12. What is interesting is that these two paragraphs and the averments, therein, have been sworn on the basis of legal advice. The submissions, therefore, cannot be said to be factual assertions. For this reason alone, even this argument of learned counsel for the petitioner cannot be accepted.

13. Although it has been argued that no joint meeting had been held prior to the approval of the gang chart by the District Magistrate, the same also is without substance. There is no foundation for such an assertion in the writ petition or the supplementary affidavit.

14. It is difficult to accept this argument also because the petitioner would not be aware of the factual circumstances. There is no requirement of any notice of such joint meeting nor is the accused entitled to participate in the same. Such position can at best be culled out from the circumstances of the case. However, no such circumstances have been brought to the notice of Court which would even remotely lead to a conclusion that no joint meeting as provided under Rule 5 was not held.

15. In view of the foregoing, submissions of learned counsel for the petitioner, we do not find favour of this Court.

16. The writ petition, under the circumstances, is devoid of merit and is dismissed.

Order Date :- 28.8.2023

Aditya Tripathi