Nisha vs State Of U.P. Thru. Prin. Secy. Home ...
2025 Latest Caselaw 5995 ALL

Allahabad High Court

Nisha vs State Of U.P. Thru. Prin. Secy. Home ... on 11 March, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:14840
 
Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 1685 of 2025
 

 
Applicant :- Nisha
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. And Another
 
Counsel for Applicant :- Atul Verma,Ajay Kumar Rai,Akhilendra Pratap Singh,Himanshu Tiwari,Mohd Agha Haider Rizvi,Sanjeet Kumar Patel
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Lavania,J.
 

1. Heard Sri Himanshu Tiwari, Advocate holding brief of Sri Atul Verma, learned counsel for the applicant and Sri S.P. Tiwari, learned AGA for the State of U.P. as well as perused the record.

2. The instant application has been preferred seeking following main relief(s):-

"To allow the petition of the petitioner U/S- 482 Cr.P.C. (now Section 528 BNSS) and quash the entire criminal proceedings along with the charge sheet dated 20.06.2023 arising out of Case Crime No. 76 of 2022, U/S- 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, PS- Cantt, District- Lucknow pending before the Ld. Court of Special Judge (Gangsters Act), Lucknow (annexed as Annexure No. 1).

To allow the petition of the petitioner U/S- 482 Cr.P.C. (now Section 528 BNSS) and quash the impugned cognizance and summoning order dated 03.07.2023 arising out thereof, pending before the Ld. Court of Special Judge (Gangsters Act), Lucknow (annexed as Annexure No. 2)."

3. For the purposes of seeking above quoted relief, learned counsel for the applicant stated that in the year 2021, U.P. Gangsters and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as "2021 Rules") were framed by the State Government in exercise of power envisaged under Section 23 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "1986 Act").

4. It is further stated according to 2021 Rules, for the purposes of initiation of proceedings under 1986 Act, mandatory provisions as envisaged under 2021 Rules should be followed. Reference in this regard has been made to Rules 5, 8, 16, 17 and 18 of 2021 Rules.

5. It is further stated that the Division Bench of this Court in the judgment dated 13.12.2023 passed in Criminal Misc. Writ Petition No. 16258 of 2023 (Sanni Mishra @ Sanjayan Kumar Mishra vs. State of U.P. and 2 others), after considering various Rules of 2021 Rules including the Rules 5, 8, 16, 17 and 18 thereof, held that Rule 5(3)(a) of 2021 Rules is mandatory in nature and after observing the same, quashed the FIR and directed the State Authorities to lodge a fresh FIR on the basis of fresh gang chart prepared in accordance with law.

6. It is also stated that the recent judgment on the issue dated 26.07.2024 passed by the Division Bench of this Court in Criminal Misc. Writ Petition No. 9930 of 2024 (Abdul Lateef @ Mustak Khan vs. State of U.P. and 2 others) & other connected matters would also indicate that provisions of 2021 Rules are mandatory in nature and in this judgment, the Division Bench of this Court sitting at Allahabad after considering various pronouncements on the issue including the judgment passed in the Case of Sanni Mishra (Supra) directed the State Authorities to prepare the gang chart strictly in terms of 2021 Rules. The relevant paragraphs, referred, of the judgment passed by this Court in the case of Abdul Lateef @ Mustak Khan (Supra) are extracted hereunder:-

"28. However, despite issuance of circulars by the Chief Secretary, Govt. of U.P. as well as the Director General of Police to all the District Magistrates as well as other police officers, this Court found that some of the officers were still not following the procedure while preparing the gang chart and defective gang charts were being prepared without application of mind on the part of the competent authorities. Therefore, the Division Bench of this Court in the case of Rajeev Kumar @ Raju vs. State of U.P. and others; Criminal Misc. Writ Petition No. 9428 of 2024, specifically directed the Principal Secretary (Home), Govt. of U.P. to issue appropriate direction to all the District Police Chiefs as well the District Magistrates to maintain a register for recording the minutes/resolutions of the joint meet held as per Rule 5(3)(a) of the Rules, 2021 and further direction was issued to all the District Police Chiefs, District Magistrates as well as Nodal Officers that while signing the gang chart they should mention the date just below their signatures. The judgement passed in Rajeev Kumar @ Raju (supra) is quoted as under:-

"Heard learned Counsel for the petitioner and learned AGA on behalf of the State.

This Court by order dated 04.06.2024 directed the learned AGA to produce the register relating to joint meeting held in accordance with the U.P. Gangsters and Anti Social Activities (Prevention) Rules, 2021 (in short Gangster Rules, 2021) in original but today learned AGA has produced a copy of Resolution signed by the District Magistrate and S.P. concerned. It was also informed by the learned AGA that there is no provision for maintaining a register for the purpose of recording the Resolution of the joint meeting as required by Section 5 (3)(a) of the Gangster Rules, 2021.

Upon a perusal of the gang chart it appears that the District Magistrate, while approving the same, did not mention any date just below his signature and, therefore, this fact also causes doubt about the joint meeting. However, from a perusal of the entire gang chart, this Court is of the view that the required satisfaction was recorded by the Superintendent of Police as well as by the District Magistrate. Therefore, this Court does not find any illegality in the impugned FIR or the gang chart annexed.

It would be appropriate to refer to our holding in Sanni Mishra @ Sanjayan Kumar Mishra v. State Of U.P. and Other: Neutral Citation No. - 2023:AHC:235826-DB, where this Court observed that the material must be produced before the Court regarding the joint meeting. However, in the present case only a Resolution signed by the Superintendent of Police and the District Magistrate was produced before the Court, which could be prepared even after approving the gang chart.

In this circumstances, this Court directs the Principal Secretary (Home), Government of U.P., Lucknow to issue an appropriate direction to all the SPs, SSPs, Commissioners of Police as well as District Magistrates that a register should be maintained for recording Resolutions of joint meetings held as per Rule 5 (3)(a) of the Gangsters Rules, 2021. It is further directed that all the SPs, SSPs, Commissioners of Police and also the District Magistrates as well as the Nodal Officers while signing a gang chart, shall mention the date below their signatures.

In this view of the matter, this petition fails and is dismissed.

Let this order be communicated to the Principal Secretary (Home), Government of U.P., Lucknow through the Chief Judicial Magistrate, Lucknow by the Registrar (Compliance) today."

29. This Court again found that several police officers/District Magistrates are still not following the guidelines issued by different judgements of this Court, though same were duly circulated by the State Government by circular dated 21.1.2024. Thereafter, this Court in the case of Mohd. Arif @ Guddu v. State of U.P. and others; Criminal Misc. Writ Petition No. 10980 of 2024, observed that several Nodal Officers/District Police Chiefs were not following the directions issued by the State Government by the circular dated 21.1.2024 and directed the Chief Secretary as well as Additional Chief Secretary (Home), Govt. of U.P. to look into this matter and take appropriate action against the negligent State officers. Paragraph Nos. 11 & 12 of the aforesaid judgement are quoted as under:-

"11. It is very surprising that Nodal Officer as well as Superintendent of Police, Jaunpur has prepared and recommended the gang chart in the month of March, 2024 by signing the pre-typed satisfaction and District Magistrate-Jaunpur, has approved the same on 30.04.2024 again by signing the pre-typed satisfaction despite issuance of circular dated 19.01.2024 by the Director General of Police, U.P. and also the circular dated 21.01.2024 by the Chief Secretary, Government of U.P. regarding compliance of the direction issued in Sanni Mishra (supra) and Asim @ Hassim (supra) case for recommending and approving the gang chart. This fact shows the sheer negligence on the part of these officers.

12. Therefore, this court is of the view that Chief Secretary, U.P. as well as Additional Chief Secretary (Home), U.P. should look into this matter and take appropriate action."

30. This Court again found in the present cases that the gang charts of the impugned FIRs have been prepared in utter violation of the Rules, 2021 as well as directions issued by this Court in Sanni Mishra (supra), Asim @ Hassim (supra), Rajeev Kumar @ Raju (supra), Anil Mishra (supra) and also in violation of circular dated 19.1.2024 issued by the Director General of Police as well as circular dated 21.1.2024 issued by the Chief Secretary, Govt. U.P.

31. Therefore, this Court feels it appropriate to direct the State Government to send the District Police Chiefs, District Magistrates/Police Commissioners as well as Nodal Officers, who are the competent authorities under the Gangsters Act, for training or crash course so that they could learn how to prepare a gang chart, strictly in accordance with the Rules, 2021 as well as several directions issued by this Court and also to apprise them about appropriate cases where the Gangsters Act can be invoked. This training on the one hand will reduce the scope of getting away of the gangsters from the clutches of the Gangsters Act and on the other it will save innocent persons who are merely involved in petty, one or two cases, though they would not come within the definition of the gangsters as per Section 2(b) of the Gangsters Act, from getting booked under the Gangsters Act. Such training or crash course can be conducted in a phased manner in the Judicial Training and Research Institute, Lucknow (J.T.R.I.) which can be arranged by the Principal Secretary Law/LR, Govt. of U.P. or at any other place where the State govt. may feel it appropriate.

32. For ready reference, guidelines, issued by this Court in several judgements regarding preparation of gang chart as well as for invocation of Gangsters Act, are being summarised as under:-

"(i). While forwarding or approving the gang chart, the competent authorities must record their satisfaction as required by Rule 16 of the Rules, 2021 by writing in clear words and not by simply signing printed/pre-typed satisfaction.

(ii). Satisfaction of the competent authorities should reflect that they have applied their minds not only on the gang chart but also the documents/forms annexed with the gang chart.

(iii). Date of filing the charge sheet under the base case must be mentioned in Column-6 of the gang chart except in cases under Rule 22(ii) of the Rules, 2021 where Gangsters Act can be imposed during investigation.

(iv). Before approving the gang chart, the District Magistrate should conduct due discussion for invocation of the Gangsters Act in a joint meeting with the District Police Chief as per Rule 5(3)(a) of the Rules, 2021 and minutes/resolutions of the meeting must be recorded in a register maintained for that purpose. That register should be made available to the court for its perusal if it so requires.

(v). While signing their satisfaction competent authorities (District Police Chiefs, District Magistrates and Nodal Officers) should mention the date just below their signatures.

(vi). While approving the gang chart, the District Magistrate/Commissioner of Police should also verify whether the Nodal Officer and District Police Chief have properly recorded their satisfaction as per the Rules, 2021 as well as the guidelines issued by the State Government in pursuance of the directions issued in several judgements by the High Court.

(vii). Before invocation of the Gangsters Act, competent authorities should also record satisfaction that offence of base case/cases has/have been committed by a person who comes within the definition of "Gangster" as per Section 2(c) of the Gangsters Act and there must be material for such satisfaction. This satisfaction must be mentioned in the minutes of the joint meeting conducted as per Rule 5(3)(a) of the Rules, 2021."

33. On perusal of the gang chart of the impugned F.I.R. in Criminal Misc. Writ Petition no. 9930 of 2024 and also considering the submission of learned counsel for the parties, this Court finds that there is no proper satisfaction recorded by the competent authorities because they simply signed pre-typed satisfaction which is against the guidelines issued in Sanni Mishra (supra) as well as Circular dated 21.01.2024 of the State government. It is also clear that while recording the satisfaction for approval, the District Magistrate, Mahoba has not mentioned the date below his signature which is against the guidelines issued by the Division Bench of this Court in the case of Rajeev Kumar @ Raju (supra).

34. Apart from this, it also appears from the impugned FIR that only the section, provided for the penalty, has been mentioned without mentioning the corresponding provision of Section 2(b) of the Gangsters Act, regarding his anti social activities on the basis of which the petitioner was termed as gangster, which is against the direction issued by the Division Bench of this Court in the case of Asim @ Hassim (supra). Therefore, the impugned F.I.R. dated 2.5.2024, registered as Case Crime No. 236 of 2024, under Section 3(1) of the Gangsters Act, P.S. Kotwali Nagar Mahoba, District Mahoba along with its gang chart is hereby quashed.

35. On perusal of the gang chart of the impugned F.I.R. in Criminal Misc. Writ Petition Nos. 10379 of 2024 and 10852 of 2024 as well as after considering the submission of learned counsel for the parties, it appears that the Senior Superintendent of Police, Etawah did not record any satisfaction while forwarding the gang chart to the District Magistrate and thereafter the District Magistrate again did not record his proper satisfaction as required by the Rule 16(3) of the Rules, 2021 and there is also no material showing that any joint meeting was conducted between the District Magistrate as well as the District Police Chief, Etawah, who were approving the gang chart. Therefore, the impugned F.I.R. dated 31.5.2024, registered as Case Crime No. 116 of 2024, under Sections 2 & 3 of the Gangsters Act, P.S. Friends Colony, District Etawah along with its gang chart is hereby quashed.

36. On perusal of the gang chart of the impugned F.I.R. in the Criminal Misc. Writ Petition No. 10916 of 2024, it is clear that the Nodal Officer while signing his satisfaction did not mention any date below his signature which is against the decision of Rajeev Kumar @ Raju (supra). The gang chart in the present case also shows that while recording his satisfaction, the Superintendent of Police, Bijnor did not mention that he had perused forms / enclosures annexed with the gang chart and he simply relied upon the facts mentioned in the gang chart and recommended the gang chart to the District Magistrate but the District Magistrate, Bijnor also did not look into this aspect and approved the gang chart. Therefore, the impugned F.I.R. dated 2.6.2024, registered as Case Crime No. 274 of 2024, under Sections 2(b)(i) and 3(1) of the Gangsters Act, P.S. Chandpur, District Bijnor along with its gang chart is hereby quashed.

37. On perusal of the gang chart of the impugned F.I.R. in the Criminal Misc. Writ Petition No. 10968 of 2024, it is clear that the satisfaction was not recorded by the competent authorities in the gang chart but they simply signed pre-typed satisfaction which is against the Rules, 2021 as well as the directions issued by this Court in Sanni Mishra (supra). Therefore, the impugned F.I.R. dated 14.5.2024, registered as Case Crime No. 108 of 2024, under Sections 2/3 of the Gangsters Act, P.S. Alau, District Mainpuri along with its gang chart is hereby quashed.

38. It is relevant to mention here that in view of the judgement of the Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others; 2011 (14) SCC 770, all the consequential proceedings of the impugned FIRs in all the above five writ petitions are also quashed.

39. With the aforesaid observation, all the above five writ petitions are allowed.

40. However the competent authorities are at liberty to proceed against the petitioners afresh in accordance with the Rules, 2021 as well as the guidelines issued by this Court.

41. Registrar (Compliance) is directed to send a copy of this judgement to the Chief Secretary, Govt. of U.P. and the Principal Secretary (Home), Govt. of U.P. for compliance within 24 hours.

42. Registrar (Compliance) will also send a copy of this judgement to the Principal Secretary Law/L.R., U.P. for placing the same before the Chief Minister, Uttar Pradesh for his perusal."

7. It is further stated that in the instant case, the mandatory procedure as prescribed under Rules 5 and 24 of 2021 Rules has not been followed, as such, indulgence of this Court is required in the matter.

8. Sri S.P. Tiwari, learned AGA, on the contrary, opposed the instant application. However, he could not dispute the legal proposition settled by this Court in above referred judgments.

9. Considered the aforesaid and perused the record.

10. Upon due consideration of the facts of the case, this Court finds that mandatory procedure as prescribed under 2021 Rules including Rule(s) 5, 6 and 24 of 2021 Rules has not been followed by the State Authorities while preparing the gang chart. It is for the reason(s) that (i) joint meeting was not held, (ii) legal opinion was taken note of and (iii) satisfaction has not been recorded. Further, the charge sheet was not filed within due time.

11. In view of the above, the entire proceedings arising out of Case Crime No. 76 of 2022, under Section 3(1) of 1986 Act, PS- Cantt, District- Lucknow pending before the Special Judge (Gangsters Act), Lucknow alongwith its gang-chart are hereby quashed. The matter is remanded back to the Authority concerned for decision afresh in the matter strictly in accordance with law, as mentioned above.

12. The instant application is accordingly allowed in above terms.

Order Date :- 11.3.2025

Arun/-