Allahabad High Court
Rahul And Another vs State Of U.P. And Another on 1 March, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Court No. - 68
Case :- APPLICATION U/S 482 No. - 6562 of 2023
Applicant :- Rahul And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Ehtesham Akhtar
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
The present application under Section 482 Cr.P.C. has been filed to quash the entire proceedings of Case No. 323 of 2012 (State VS. Rahul and another) arising out of Case Crime No. 681 of 2007, under Section 2/3 Gangster Act, Police Station- Sector 24 Noida, District Gautam Budh Nagar on the basis of acquittal in the base case i.e. Case No. 331 of 2012 (State Vs. Ra), Case No. 324 of 2012 (State Vs. Ri) arising out of Case Crime No. 566 of 2007, under Section 392, 411 I.P.C., Police Station- Sector 24 Noida, District Gautam Budh Nagar.
Learned counsel for the applicants submitted that F.I.R. has been lodged against the applicants bearing Case Crime No. 566 of 2007, under Section 392, 411 I.P.C., Police Station- Sector 24 Noida, District Gautam Budh Nagar in which they have been acquitted and, thereafter, the present F.I.R. has been lodged under Section 2/3 Gangster Act. Learned counsel for the applicants further submitted that after acquittal on the basis of base case, proceedings under the Gangster Act cannot be going on against the applicants. In support of his submissions, he has relied upon the judgment of this Court in the case of Sartaj Vs. State of U.P. passed in Application U/S 482 No. 11645 of 2007. The relevant paragraph nos. 14, 15 and 16 of the aforesaid judgment reads as under:-
"14. After considering the authorities cited by the counsel for the applicant it is clear that the applicant was implicated in the Gangsters Act only on account of involvement in the case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act. The proceedings under the Gangsters Act are not independent proceedings. The implication of the applicant in the offence under the Gangsters Act was only because of the one case registered against him as case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act, as clear from the gang chart annexed with the affidavit in support of this 482 Cr.P.C. application. The definition of gang is given in Section 2(b) which is as follows:-
Section 2:-
(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 antisocial 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."
15. A perusal of the aforesaid sections shows that the applicant was implicated in an offence under chapter 16, I.P.C. and therefore he was implicated in the case under the Gangsters Act. There is only one case shown against the applicant in the gang chart in which the applicant was acquitted by the competent Court and therefore his implication and trial under Section 2/3 of the Gangsters Act was not justified.
16. From the law of the Apex Court as discussed above it is crystal clear that the trial of the applicant for an offence under Section 2/3 of the Gangsters Act is not justified. In view of the fact that only one case is registered against him and he has been acquitted in that case."
In view of the above, prima facie it appears that matter requires consideration.
Learned AGA has accepted notice on behalf of the opposite party no.1.
Issue notice to opposite party no.2.
Steps be taken by Registered Post A.D. within a week.
All the opposite parties may file counter affidavit within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.
List this case on 31.3.2023.
Till the next date of listing, no coercive action shall be taken against the applicants in pursuance of the above case.
Order Date :- 1.3.2023
Krishna*
