Vinay Pratap Mishra vs State Of U.P. And Another
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Allahabad High Court

Vinay Pratap Mishra vs State Of U.P. And Another on 7 July, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on 29.5.2025
 
Delivered on 07.07.2025
 
Neutral Citation No. - 2025:AHC:105615
 
Court No. - 77
 

 
Case :- APPLICATION U/S 528 BNSS No. - 17824 of 2025
 

 
Applicant :- Vinay Pratap Mishra
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Manoj Yadav,Rahul Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Srivastava,J.
 

1. Heard learned counsel for the parties.

Prayer

2. Present application has been preferred with prayer to quash the entire proceeding of G.T. no. 524 of 2008 (State vs. Rinku @ Dharmendra Yadav and others) and charge sheet dated 27.12.2005 as well as cognizance order dated 04.12.2006 under Section 3(1), Gangster Act, arising out of Case Crime no. 113 of 2005, PS- Tarwa, District Azamgarh. Further prayer has been made to stay the entire proceeding of G.T. no. 524 of 2008.

Submission on behalf of Applicant

3. It is submitted by learned counsel for applicant that informant has registered the present FIR against 4 accused persons including the applicant on 30.03.2005 being Case Crime no. 113 of 2005, under Section 3(1) Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986, PS- Tarwa, District Azamgarh. Gang-chart has been prepared against the four accused persons including the applicant wherein three cases were shown against the applicant which are as under :

i) Case Crime no. 342 of 2004 under sections 302, 307, 34, 120B IPC & 7 CLA Act, PS- Tarawa, District Azamgarh,

ii) Case Crime no. 346 of 2004 under sections 25 Arms Act, PS- Tarawa, District Azamgarh,

iii) Case Crime no. 341 of 2004, under sections 395, 397, 435, 427, 352 IPC and Section 7 CLA Act & Section 7 Prevention of Damage to Public Property Act.

4. In all the three cases applicant has been released on bail and in Case Crime no. 342 of 2004 under sections 302, 307, 34, 120B IPC & 7 CLA Act, PS- Tarawa, District Azamgarh applicant has been acquitted by learned Additional Sessions Judge, Court no. 7, Azamgarh vide order dated 19.06.2010. Further, Case Crime no. 346 of 2004 under Section 25 Arms Act, PS- Tarawa, District Azamgarh is not covered under Gangster Act, but mala fidely this has also been made base case against the applicant. One Rajendra Mishra who was a renowned politician and he was also cousin brother of Ex-Governor Kalraj Mishra and on dated 08.10.2004 he was shot dead by some goons and police was not doing anything, due to this reason villagers became angry on police and 150-200 villagers  attacked on Police Station Tarwa on the same day i.e. 08.10.2004 and thereafter FIR was lodged against 150-200 unknown persons being Case Crime no. 341 of 2004 and applicant has been falsely implicated in this case and the same has been made base case since as per Section 2(b) "Gang" means a group of persons, who acting either singly or collectively. Here, offence was committed collectively by 150-200 villagers and Gangster Act was imposed only upon 4 persons including applicant which is against the definition of gang.

5. In present case, there is violation of Gangster Rules, 2021, Government Order dated 10.08.1997, 24.10.2003, 02.01.2004 during preparation of gang-chart. In G.O. dated 24.08.2003, it has been clearly mentioned in para no. 2 that only those cases will be kept in criminal history/base case wherein charge-sheet has been submitted but in base case i.e. Case Crime no. 346 of 2004, it has not been mentioned by competent authorities during preparation of gang-chart whether charge-sheet has been submitted or not, neither in gang-chart, nor in FIR which is violation of the said G.O.

6. It is further submitted that co-ordinate bench of this Court in case of Sanjay Verma vs. State of U.P. passed in Application u/s 482 no. 10238 of 2023 vide order dated 15.09.2023 held in para 18 as under:

"18. It is pertinent to note here that the above noted rules of 2021 are in the form of procedural safeguards in relation to offences under the Gangsters Act. Even before these Rules of 2021, certain safequards were already, in place, in one way and the other in the form of G.Os. and Notifications/Communications issued by the Government/Executive Authority/Police Authority. These were all ad hoc Procedural Safequards to be observed and complied with by the concerned authorities while dealing with gangster cases, just to make a stop gap arrangement and an effort to plug the void, in place of formal Rules as contemplated by Section 23 of the Act."

7. The Hon'ble Apex Court in case of Vinod Bihari Lal vs. State of U.P. and another vide judgment dated 23.05.2025 passed in Criminal Appeal nos. 777-778 of 2025 (Arising out of SLP (Crl.) Nos. 5376-5377 of 2023) held under para 42 as under :

"At this stage, it is important to ascertain whether the gang-chart was approved in conformity with the Rules of 2021. The general rules to be followed qua approval of gang-chart have been stipulated in Rule 5 of the Rules of 2021. It reads thus:

"5. General Rules.--(1) To initiate proceedings under this Act, the concerned Incharge of Police Station/Station House Officer/Inspector shall prepare a gang-chart mentioning the details of criminal activities of the gang.

(2) The gang-chart will be presented to the district head of police after clear recommendation of the Additional Superintendent of Police mentioning the detailed activities in relation to all the persons of the said gang.

(3) The following provisions shall be complied with in respect of gang-charts:--

a. The gang-chart will not be approved summarily but after due discussion in a joint meeting of the Commissioner of Police/District Magistrate/Senior Superintendent of Police/Superintendent of Police.

b. There may be no gang of one person but there may be a gang of known and other unknown persons and in that form the gang-chart may be approved as per these rules.

c. The gang-chart shall not mention those cases in which acquittal has been granted by the Special Court or in which the final report has been filed after the investigation. However, the gang-chart shall not be approved without the completion of investigation of the base case.

d. Those cases shall not be mentioned in the gang-chart, on the basis of which action has already been taken once under this Act.

e. A separate list of criminal history, as given in Form No.--4, shall be attached with the gang-chart detailing all the criminal activities of that gang and mentioning all the criminal cases, even if acquittal has been granted in those cases or even where final report has been submitted in the absence of evidence.

Along with the above, a certified copy of the gang register kept at the police station shall also be attached with the gang-chart. In addition to the above, the information of crime and gang members mentioned in the gang-chart will also be updated on Interoperable Criminal Justice System (ICJS) portal and Crime and Criminal Tracking Network System (CCTNS)."

8. If as per above mentioned judgment, at this stage, it is important to ascertain whether the gang-chart was approved in conformity with the Gangster Rules, 2021, then in present case blatant violation of Rules, 2021 has been committed by the competent authorities during preparation and approval of gang-chart. Further, the latest status of the case which are being shown in the gang-chart, regarding their pendency or the stage at which they are, must be clearly mentioned but status of any case, which are shown in gang-chart has not been mentioned in the gang-chart, which is violation of Rule 8(3) of Gangster Rules, 2021.

9. In the concerned column of gang-chart, present status of all the accused, whether they are presently in jail or on bail or absconding, shall be clearly mentioned but status of any accused has not be mentioned, which is blatant violation of Rules, 2021. If action is not to be taken against any member of a gang who has committed a criminal act in association with the said gang, then in such a case clear and reasonable grounds for not mentioning his name in the gang and gang-chart shall be recorded with reasons and evidences but in Case Crime no. 341 of 2004, there were 150-200 accused persons but only against 4 persons Gangster Act has been imposed without giving any specific reason. As per Rule 25(2) of Rules of 2021, Investigating Officer shall clearly enter the name of the witnesses, full permanent and present address, personal number (PNO), telephone number, mobile number and what is to be proved from that witness in the court of the Act shall also be mentioned in the charge-sheet in front of the witness column but neither any witness full address permanent and present has been mentioned, nor any other details of witness has been mentioned in the charge-sheet which is clear cut violation of Rule 25(2) of Rules of 2021.

10. In view of aforesaid facts, continuation of trial of G.T. no. 524 of 2008 arising out of FIR no. 113 of 2005 registered at PS- Tarawa, District Azamgarh will be nothing but abuse of process of law.

Submission on behalf of State

11. Per contra, learned AGA vehemently opposed the prayer sought through instant application and submitted that impugned proceeding under the Gangster Act has been initiated against the applicant in due compliance of Gangster Rules, 2021 and no interference is required at this stage.

Observation and Conclusion

12. It is apparent from the gang-chart, which has been appended while preferring instant application that along with certain other cases, case Case Crime no. 341 of 2004, under sections 395, 397, 435, 427, 352 IPC and Section 7 CLA Act & Section 7 Prevention of Damage to Public Property Act, is also credited against the applicant wherein the applicant has been implicated and the same is pending. While challenging the entire proceeding, the gang-chart which has been approved by the competent authority has not been appended in spite of filing supplementary affidavit. Learned counsel for the applicant while raising his arguments relied upon judgment dated 23.05.2025 passed by Hon'ble Supreme Court in case of Vinod Bihar Lal vs. State of U.P. & another passed in Criminal Appeal nos. 777-778 of 2025 (Arising out of SLP (Crl.) Nos. 5376-5377 of 2023) and judgment dated 19.02.2024 passed in case of Farhana vs. State of U.P. and others in Criminal Appeal nos. nil of 2024 (Arising out of SLP(Crl.) nos. 437 of 2023). In case of Farhana (supra), it has been held by Hon'ble Apex Court that if, accused who has been implicated in Gangster proceedings on the basis of the certain other criminal history and during pendency of the trial before learned concerned court or otherwise, the proceeding culminated in favour of the accused in shape of acquittal or quashing of the proceeding, the implication of the accused on the basis of those cases in gangster proceeding will not sustain.

13. In the matter of Vinod Bihari Lal (supra) nature of the offences carried out by the accused amenable for initiating proceeding under the Gangster Act has been broadly discussed by Hon'ble Apex Court. It has been held that while initiating proceedings under the Gangster Act for implicating any person, nature of crime committed in other cases has to be given credence while deciding and approving gang-chart by the competent authority that whether the crime committed by the accused is amenable for initiating proceedings under the Gangster Act or not?

14. In the instant matter, it is crystal clear from the records, itself that proceedings in pursuance to Case Crime no. 341 of 2004 is still pending to be finalised wherein implication of the applicant is in pursuance to under sections 395, 397, 435, 427, 352 IPC and Section 7 CLA Act & Section 7 Prevention of Damage to Public Property Act and certain other cases wherein applicant is involved under the same nature of offences and as such case of applicant is neither covered under judgment rendered by Hon'ble Apex Court in Vinod Bihari Lal as well as Farhana (supra). Rest of the other grounds taken up by learned counsel for the applicant is subject matter of trial which is still pending to be concluded and as such applicant is hereby directed to cooperate with the proceedings pending before learned trial court. Prayer as made through instant application cannot be acceded at this juncture hence instant application u/s 528 BNSS stands dismissed.

Order Date :- 7.7.2025

Shaswat

(Saurabh Srivastava,J.)