Allahabad High Court
Vikash And Another vs State Of U P And 2 Others on 27 March, 2023
Bench: Anjani Kumar Mishra, Gajendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Reserved
In Chamber
Case :- CRIMINAL MISC. WRIT PETITION No. - 2536 of 2023
Petitioner :- Vikash And Another
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Prateek Srivastava,Anil Kumar
Counsel for Respondent :- G.A.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Gajendra Kumar,J.
Heard learned counsel for the petitioners, learned counsel for the first informant and learned A.G.A. for the State.
The instant writ petition seeks quashing of the FIR dated 16.01.2023 giving rise to Case Crime No.17 of 2023, under Section 3(1) of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station- Alinagar, District- Chandauli.
The contention of learned counsel for the petitioners is that the petitioners are driver and helper of a tanker used for transportation of oil. They were falsely implicated in Case Crime No.376 of 2022, under Sections 285, 379, 411 413, 407 I.P.C. & Section 3/4 of the Prevention of Damage to Public Property Act, 1984, P.S. Alinagar, District Chandauli, which is the base case and the only case on the basis, whereof the provisions of the Gangster Act have been invoked against them. The earlier FIR had been lodged to settle scores with the petitioners, which is established by the fact that as soon as the petitioners were bailed out in the base case, the provisions of the Gangster Act have been invoked against them.
Apart from the above, the main contention of learned counsel for the petitioners is that the impugned FIR does not fall within the first part of Section 2-B of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, which reads as follows:-
"violence, or threat or show of violence, or intimidation, or coercion or otherwise"
Such allegations are totally absent in the impugned FIR and therefore no case under Section 2 of the Act is made out against the petitioner.
Further in support of his contention, reliance has been placed upon the judgments of the Apex Court in State of Haryana Vs. Bhajan Lal 1992 (SCC (Cr.) 426, Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others, 2021 SCC Online SC 315 and a Division Bench of this Court in Pankaj Singh Vs. State of U.P. And 3 Others, Criminal Misc. Writ Petition No.5707 of 2021.
The contention of learned counsel for the petitioners as regards the scope and import of Section 2-B of the Act, is concerned was subject matter of Criminal Misc. Writ Petition No.728 of 2021, Pramod Singh Vs. State of U.P. And 4 Others decided by judgment and order dated 16.07.2021. Relevant portion of the said judgment is extracted below:
"(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 of himself of any other person, indulge in anti-social activities".
Upon a bare reading of the provision quoted above, we are unable to accept the contention made on behalf of the petitioner that to constitute a Gang, the member of the Gang should be operating only with the object of disturbing public order. The definition no doubt includes within its ambit acts of violence or threat, or show of violence, carried out with the object of disturbing public order. However, this is just the first part of the definition. The second part, which starts with the word 'or of gaining any as of undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti social activities.
We are of the considered opinion that the definition of a Gang is therefore, clearly in two parts and both are mutually exclusive. Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang.
To clarify further Section 2(b) in our opinion, provides that a group of person, singly or collectively would constitute a gang in either or the two conditions below-
(i) by violence, or thereat or show of violence or intimidation or coercion, or otherwise try to disturb public order,
OR
(ii) by violence or threat or show of violence or intimidation or coercion or otherwise try to obtain undue temporal, pecuniary, material or other advantage for himself or any other person.
The words " indulge in anti-social activities refer to the various illustrations/ conditions specified thereafter as (i) to (xxv)."
In view of the decision in Pramod Singh (Supra) and for the reasons given, therein, we do not find any merit in the submissions of learned counsel for the petitioners. Even if the case against the petitioner contains no allegations as far as the first part of Section 2-b of the Act is concerned, the same definitely falls within the second part which is exclusive of the first part.
The other submissions that have been made are of the defence of the petitioner, which are not liable to be considered while dealing with a writ petition seeking quashing of the FIR.
In view of the above and since the contention of learned counsel for the petitioners have been repelled, the writ petition fails and is dismissed.
Order Date :- 27.3.2023
Mayank /RKM
