Uttarakhand High Court
Rajesh Aggarwal Alias Rakesh ... vs State Of Uttarakhand on 14 August, 2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 1130 of 2023
Rajesh Aggarwal alias Rakesh Aggarwal.......Petitioner
Versus
State of Uttarakhand ........Respondent
Present:-
Ms. Sadaf, Advocate for the petitioner.
Mr. Lalit Miglani, A.G.A. with Ms. Sangeeta
Bhardwaj, Brief Holder for the State/respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to FIR
No.315 of 2023, dated 27.07.2023, under Sections 2 and
3 of the U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986 ("the Act"), Police Station Raipur,
District Dehradun.
2. Heard learned counsel for the parties and
perused the record.
3. According to the FIR, the petitioner and the co-
accused are forging documents and they in the business
of sale and purchase of property. They are illegally gaining
pecuniary benefits. Due to their acts, there is a fear in the
masses. They are also extending threats to the people in
general.
4. Learned counsel for the petitioner would
submit that the offence under the provisions of the Act is
not made out; the earlier FIR, based on which instant
case has been lodged does not speak of any ingredients of
threat, violence, etc.; they were simple cases of cheating,
in which, FIR was, in fact, much delayed and they are still
pending investigation.
5. Learned counsel for the petitioner would
submit that mere version of FIR could not be sufficient for
holding that a case is made out because if FIR is designed
with any ill motive it may be drafted in a manner so as to
contain every averment. She would refer to the judgment
in the case of Mohammad Wajid and another vs. State of
U.P. and others, Criminal Appeal No.2340 of 2023
(Arising out of S.L.P. (Criminal) No.10656 of 2022),
MANU/SC/0846/2023, in which, in para 30, the Hon'ble
Court has observed that as and when the court is
required to quash an FIR on the ground that such
proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court owes a
duty to look into the FIR with care and a little more
closely. Because in such cases the complainant could
ensure that the FIR/complaint is very well drafted with all
the necessary pleadings. He would ensure that the
averments made in the FIR/complaint are such that they
disclose the necessary ingredients to constitute the
alleged offence. The Court observed, "therefore, it will
not be just enough for the Court to look into the
averments made in the FIR/complaint alone for the
purpose of ascertaining whether the necessary
ingredients to constitute the alleged offence are
disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many
other attending circumstances emerging from the
record of the case over and above the averments and,
if need be, with due care and circumspection try to
read in between the lines."
6. Learned State counsel on the other hand would
submit that the FIR constitutes offence. The petitioner
has been involved in many cases in the past. In one of
such cases, charge-sheet has already been filed. They are
gaining undue peculiarly advantages.
7. The word "gang" has been defined under
Section 2(b) of the Act, which 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. This clause 2(b) of the Act includes
the offences, in which, earlier FIR was lodged against the
petitioner. The word "gangster" is defined under Section
2(c) of the Act, which is as under:-
2(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. According to the FIR, the petitioner as a gang
has been cheating the people to take undue pecuniary
advantage and they have created, threatened and
extended sense of fear in the masses.
9. At this stage, when the petitioner seeks
quashing of FIR, this Court cannot go beyond the material
that is available, which is the earlier FIR as well as the
FIR in the instant case. In the matters like instant one the
Court may go deeper into the analyses of facts to a limited
extent to ascertain as to whether in totality, any offence,
as such is made out. Number of cases or result of past
cases per se are not factors for proceedings under the
provisions of the Act. In the case of Shraddha Gupta vs.
State of Uttar Pradesh and others, 2022 SCC OnLine SC
514, the Hon'ble Supreme Court has observed that even a
single crime is sufficient to invoke the provisions of the
Act.
10. The Hon'ble Allahabad High Court in the case
of State of U.P. vs. Mukhtar Ansari 2022 SCC OnLine All
657 observed that if the prosecution proves that the
person belongs to a gang and indulges himself in
committing offence with object of disturbing public order
or of gaining any undue temporal and pecuniary material
or other advantage for himself or any other person, he
may be punished under the Gangsters Act. Those were
the observations which were made at the time when the
final finding was to be recorded about the guilt of an
offence.
11. In the case of Ashok Kumar Dixit vs. State of
U.P. and another, AIR 1987 All 235, in para 73 of the
judgment the Hon'ble Court had adverted to the factors
necessary for prima facie application of the Act and
observed that for booking a person under the provisions
of the Act a prima facie satisfaction of the authorities is
sufficient. The Court observed as hereunder:-
"73. In this behalf, provisions of the Act
themselves provide intrinsic guidelines. If we advert to
Section 2(b) of the Act, which defines the term
'gangster' we would find significant words. They are
"acting", 'singly or collectively', 'violence or show of
violence', 'intimidation', 'coercion', or 'unlawful means'.
Thus, for booking a person under the provisions of the
Act, the authorities have to be prima facie satisfied that
a person has acted. The authority has to be satisfied
that there is a reasonable and proximate connection
between the occurrence and the activity of the person
sought to be apprehended and that such activities were
to achieve undue temporal, physical, economic or other
advantage. There need not be any overt or positive act
of the person intended to be apprehended at the place.
It is enough to prove active complicity which has a
bearing on the crime."
12. In the instant case, the FIR categorically
records that the petitioner is indulging in illegal activities
of gaining undue pecuniary gain by committing forgery
and cheating. They have extending threat and sense of
fear in the masses. The FIR definitely discloses
commission of offence. There is no merit in the instant
case. Accordingly, the petition deserves to be dismissed at
the stage of admission itself.
13. The petition is dismissed in limine.
(Ravindra Maithani, J.)
14.08.2023
Sanjay
