Binni Lala @ Vinod Kumar Jain vs State Of U.P. And 3 Others
2023 Latest Caselaw 13756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved 
 
In Chamber
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 19638 of 2022
 

 
Petitioner :- Binni Lala @ Vinod Kumar Jain
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rajiv Lochan Shukla,Neeraj Kumar Pandey,Sharda Prasad Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Gajendra Kumar,J.

Heard Shri Rajiv Lochan Shukla, learned counsel for the petitioner and Shri Pankaj Saxena, learned AGA for the State.

The instant writ petition seeks a writ of certiorari for quashing the FIR dated 30.10.2022 giving rise to Case Crime No.1730 of 2022, under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station- Sahibabad, District- Ghaziabad.

The submission of learned counsel for the petitioner is that there are three base cases mentioned in the gang chart being (i) Case Crime No.1133 of 2022, under Sections 379, 411 I.P.C., P.S. Sahibabad, District Ghaziabad, wherein the charge-sheet is dated 28.09.2022; (ii) Case Crime No.1351 of 2022, under Section 379 I.P.C., P.S. Sahibabad, District Ghaziabad, wherein the charge-sheet was prepared on 29.09.2022 and (iii) Case Crime No.1444 of 2022, under Sections 379, 411, 414, 420, 467, 468, 471 and 120-B I.P.C., P.S. Sahibabad, District Ghaziabad, wherein the charge-sheet was prepared on 26.09.2022.

In the three cases cognizance was taken by the Court on 04.11.2022, 03.11.2022 and 03.11.2022, respectively.

On the basis of the afore-noted facts, it has been submitted that the charge-sheets have been filed in the base cases and cognizance has been taken after the FIR under the Gangsters Act had been registered.

It is therefore, the contention of learned counsel for the petitioner that there is violation of Rule 10 and 12 of the U.P. Gangsters and Anti Social Activities (Prevention) Rules, 2021, which reads as follows:-

"Rule-10- Records of Base Cases.-(1) Along with gang chart, the certified copy of the charge sheet and recovery memo shall be attached compulsorily.

(2) Where the accused is not named in the First Information Report and document discloses the way in which his name came to light and if something has been recovered, a certified copy of the recovery memo shall be attached.

and

Rule-12- Responsibility in relation to entries.-(1) All the cases to be mentioned in the gang-chart will be mentioned after verifying the crime number, relevant section of the Act and the police station, carefully.

(2)- A List of all criminal acts of the gang leader and members of the gang and the details a to whether Final Report has been filed in those cases or whether they have been acquitted by the special court shall be authentically prepared by the concerned Station In-charge / Station House Officer/ Inspector with his signature and seal in manner given in Form No.-3 of these rules along with the gang-chart; and it shall be attached separately. If action has been taken against the gang or its member in the past under Act, then that will also be mentioned in the said list.

(3)- The latest status of the cases against the gang being shown in the gang-chart, whether they are currently pending in the Special Court or whether it is regarding conviction of the gangsters, will be mentioned.

(4)- The concerned Station In- charge/Station House Officer/ Inspector, after thoroughly matching and confirming all the forms attached with it and after being satisfied in the regard, shall forward the gang-chart to the concerned Circle officer/ Additional Superintendent of Police/ Additional Commissioner of Police.

(5)- The correctness and reliability of the entries and facts in the gang chart shall be ensured by a police officer not below the rank of the Circle Officer who has prepared the gang-chart."

In support of the argument, reliance has been placed upon the two judgments of this Court. The first order is dated 19.03.2021 passed in four Criminal Misc. Bail Applications decided by a common order. They are Bail Application Nos.14323 of 2021, 15138 of 2021, 15101 of 2021 and 15110 of 2021.

The second judgment relied upon is by a Division Bench dated 09.12.2020 passed in Master @ Ramzan And Another Vs. State of Uttar Prades, reported in (2021) 115 ACrC 65.

In paragraph 11, the Division Bench in Master @ Ramzan And Another (supra) has held that the Government Order dated 02.01.2004, specifically provides that only those criminal cases shall be included in the gang chart in which the police has prepared the charge-sheet and the same has been filed before the Court concerned.

The Court, further finding that the gang chart had been prepared on wrong information as it was in contravention of the direction contained in paragraphs 5 and 10 of the Government Order dated 02.01.2004 and the Circular Dated 24.10.2003, quashed the charge-sheets.

Emphasis of learned counsel for the petitioner is also upon the phrase "certified copy" used in Rule 10. It is sought to be contended that a certified copy can only be obtained after the charge-sheet has been filed in Court and a copy is obtained therefrom. Since the certified copy of the charge-sheets in the base cases could not have been part of the gang chart, which has been approved by the D.M. as these charge-sheets in the three bases cases has been filed in Court and cognizance thereof has been taken after the impugned FIR under the Gangsters Act has been registered. The same is therefore vitiated and this gang chart could not have been made the basis of the impugned FIR.

The second contention, relying upon the judgments cited is that only after a charge-sheet in the base cases has been filed in Court, can it form basis for registration of a case under the Gangsters Act.

The submission of Shri Pankaj Saxena, learned AGA is that in Case Crime No.1133 of 2022, the charge-sheet was sent to the concerned Circle Officer on 23.10.2022 and the same was sent to Court on 04.11.2022. In Case Crime No.1351 of 2022, the charge-sheet was prepared on 29.09.2022 and was forwarded to the Circle Officer on 28.10.2022 and was filed in Court on 02.11.2023. In Case Crime No.1444 of 2022, the charge-sheet is dated 26.09.2022 and was sent to the Circle Officer on 30.09.2022 and was filed in Court on 03.11.2022.

Supported by these facts, it is contended by learned AGA that filing of the charge-sheet in Court or the Court taking cognizance thereof is not the requirement while preparing a gang chart under the provisions of the Gangsters Act or the Rules framed, thereunder, especially Rule 10 and 12, which have been relied upon by learned counsel for the petitioner. He has also submitted that the word certified encompasses within its ambit a self certified copy meaning thereby a copy certified of the person, who is prepared the document or the person who is custodian of the same.

It is therefore contended that there is no violation of any legal provision while preparing the gang chart and the impugned FIR cannot be interfered with.

We have considered the submissions made by learned counsel for the parties and perused the record.

Insofar as reliance upon the judgment in the case of Master @ Ramzan And Another (supra) and the order of the Single Judge, whereby four bail applications were considered and decided in our considered opinion, is not material any longer. Both these judgments have been delivered and directions have been issued therein, prior to the enforcement of the U.P. Gangsters and Anti Social Activities (Prevention) Rules, 2021, with effect from 27.12.2021. Both these judgments have noticed the fact that the Rules provided by Section 23 of the Act have not been framed and notified on the date the judgments were delivered. Once the Rules have been notified, it is these Rules which will govern the field.

Therefore, the primary aspect requiring consideration in this petition is the interpretation of the words certified copy occurring in Rule 10 of the Rules. This alone is material because the other document mentioned in the said Rules namely recovery memo, does not exist in every case.

The argument of learned counsel for the petitioner is that a certified copy means a copy issued by the Court while the contention of learned AGA is that a certified copy can also mean a copy certified to be a true copy by the person preparing the document or a person who has its custody.

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.

The term 'Certified Copy' occurs in Section 76 of the Indian Evidence Act, which read as follows:

"Section 76. Certified copies of public documents:- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation. -- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."

Section 76 therefore talks of a public document. One argument therefore that can be raised is whether a charge-sheet is a public document.

Section 74 of the Evidence Act is also relevant and reads as follows;

"74. Public documents:- The following documents are public documents:--

(1) Documents forming the acts, or records of the acts --

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the

Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents."

In our considered opinion a charge-sheet falls within the ambit of Section 74(1) (iii) of the Evidence Act, the SHO who prepared the charge-sheet is definitely a public officer and a charge-sheet prepared by him is a document forming the Act or record of his investigation.

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 prepare the charge-sheet and forwards it to his support for approval.

The gang chart appended with the writ petition contains the signature of the SHO, P.S. Sahibabad, District Ghaziabad and has been countersigned by the Superintendent of Police and the Circle Officer and has been duly approved by the District Magistrate, District Ghaziabad. The same therefore cannot be said to be violative of Rule 10 or 12 in any manner.

In view of the foregoing discussion and since the submissions of learned counsel for the petitioner had been repelled herein above, the writ petition fails and is dismissed.

Order Date :- 02.05.2023

Mayank