Shahbaj And Another vs State Of U.P. And 2 Others
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Allahabad High Court

Shahbaj And Another vs State Of U.P. And 2 Others on 11 April, 2025

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:53713-DB
 
Court No. - 42
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6914 of 2025
 
Petitioner :- Shahbaj and another
 
Respondent :- State of U.P. and 2 others
 
Counsel for Petitioner :- Ashish Goyal
 
Counsel for Respondent :- G.A.
 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard Sri Ashish Goyal, learned counsel for the petitioners and learned A.G.A.-I for the State respondents.

2. Present writ petition has been preferred for quashing the FIR dated 27.02.2025, registered as Case Crime No.120 of 2025, under Section 2 & 3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the "Act, 1986"), lodged at Police Station- Sadabad Kotwali, District Hathras and for a direction to the respondents not to arrest the petitioners in pursuance of the aforesaid FIR.

3. Learned counsel for the petitioners vehemently submitted that the FIR impugned before this Court came to be registered against the petitioners at the instance of Station House Officer, Police Station Sadabad Kotwali, District Hathras on 27.02.2025 alleging, inter alia, that the petitioners, being members of a gang led by one another accused Yogesh, were involved in various criminal offences. Against the first petitioner namely Shahbaj, two criminal cases having Case Crime No.314/2024 under Section 411, 414, 420, 467, 468, 471 IPC and Case Crime No.305 of 2024 under Section 379, 411 IPC, at Police Station Sadabad, District Hathras, are registered and against the second petitioner Rahul, three criminal cases, Case Crime No.314/2024; Case Crime No.305 of 2024 and Case Crime No.307 of 2024 under Sections 379, 411 IPC, at Police Station Sadabad, District Hathras, are registered. Thus, they were liable to be prosecuted for the offences punishable under the Act, 1986. The FIR further narrated that the gang had a criminal history and with a view to impose a restriction on the activities of the said gang, the FIR was being registered after obtaining prior approval of the gang chart from the District Magistrate, Hathras. The petitioners assailed the FIR by way of the instant writ petition on the premise that the aforesaid FIRs are related to the petty offences. It is also pressed that the petitioners have already been bailed out in all the aforesaid cases in the year 2024 and after lapse of eight months, the proceedings under Act, 1986 were drawn against the petitioners. Neither the petitioners are members nor they are leaders of a gang. As such, the proceedings under the Act, 1986 are liable to be set aside.

4. Per contra, Sri G.P. Singh, learned AGA-I vehemently submitted that the petitioners are hardened criminals and are running a gang. He submitted that they are involved in various criminal activities and intimidated innocent and law-abiding persons of the area. The District Magistrate, Hathras based on the materials available accorded approval for registering the FIR against the petitioners and other gang members and accordingly, the gang chart was prepared under the Act, 1986 read with U.P. Gangster and Anti Social Activities (Prevention) Rules, 2021 (hereinafter referred to as 'the Rule, 2021'). He submitted that the correctness of the allegation needs to be tested based on the material collected through the investigation as in the instant case the investigation is going on and the FIR registered against the petitioners cannot be quashed at this initial stage.

5. Learned A.G.A.-I further submitted that the law is already settled that even against the solitary case proceeding under the Gangster Act may be drawn. In this regard, he has placed reliance upon the judgment passed by Hon'ble the Division Bench in Criminal Misc. Writ Petition No. 4622 of 2019 (Somvir Vs. State of U.P. and 2 others), wherein it is propounded that even a single case, if fulfills the category of offences given under Section 2(b) (i) to (xv) of Act and is being committed by gang defined under Section 2 (b) or gangster defined under Section 2 (c) of the Act may be basis for registration of case crime number for offence punishable under Section 2/3 of Gangster Act. Reliance has also been placed on the judgment of Hon'ble Apex Court in Shraddha Gupta Versus State of Uttar Pradesh and others, 2022 SCC OnLine SC 514, wherein the Apex Court had an occasion to consider as to whether prosecution under the Gangster Act can be initiated against a person even in case of single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Gangster Act.

6. Heard rival submissions and perused the record.

7. At the outset, it would be useful to reproduce Section 2 (b) and (c) of the Act, 1986, which read as under:

?2. In this Act,-

xxx

(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, namely-

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code, 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 or the Narcotic Drugs and Psychotropic Substances Act, 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, or (vi) offences punishable under Section 3 of the Public Gambling Act, 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, 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 The Wildlife Protection Act, 1972;

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

(xvv) 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;"

8. We have also occasion to scrutinize the criminal cases cited in the FIR for invoking the Gangster proceeding under the Act, 1986 against the petitioners, which prima facie reveal that the Gangster proceeding can be drawn, which is very much in the ambit of the offences specified in Section 2 (b) of the Act, 1986. We have also occasion to peruse the gang chart and find that the authorities had proceeded to prepare the gang chart strictly as per Rule, 2021. We do not find that there is any fallacy in preparation of the gang chart. Even otherwise, the petitioners' counsel has not shown any material to substantiate his arguments to the extent that while preparing the gang chart, there were certain deviations.

9. We further find that as per gang chart it is also reflected that against other accused namely Yogesh, 12 criminal cases are to his credits; against Rahul (petitioner no.2) 05 criminal cases are registered and against Shahbaj (petitioner no.1), 02 criminal cases are registered. The petitioners are members of the gang, which is operating in the area. There is fear and terror of them in general public. The gang leader and the members of the gang have committed anti social activities. This gang leader and his active members are involved in committing anti-social activities. Prima facie, we find that cognizable offences are made out against the petitioners.

10. In Shraddha Gupta's (supra) the Apex Court had considered as to whether prosecution under the Gangster Act can be initiated against a person, even in case of single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act, 1986 and observed as under:

"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 in clause (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...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/charge sheet 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."

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...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/charge sheet 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."

11. Considering the long criminal history of the petitioners, as well as the judgments cited above, we are not inclined to entertain the instant writ petition for quashing the impugned FIR.

12. The writ petition is dismissed leaving it open for the petitioners to apply before the competent court for bail as permissible under law and in accordance with law.

13. It is made clear that the observations made in this order would not prejudice the rights of the petitioners in the on-going proceeding.

Order Date :- 11.4.2025

RKP