Uttarakhand High Court
30 July vs State Of Uttarakhand & Others on 30 July, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
2025:UHC:6653
REPORTABLE
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Criminal No. 861 of 2023
30 July, 2025
Arun Choudhary & another
--Petitioners
Versus
State Of Uttarakhand & others
--Respondents
With
Writ Petition Criminal No.188 of 2025
Brijesh Dhyani
--Petitioner
Versus
State Of Uttarakhand & others
--Respondents
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Presence:-
Mr. Jitendra Chaudhary, learned counsel for the petitioners in
WPCRL No.861/2023.
Mr. B.M. Pingal, learned counsel for the petitioner in WPCRL
No.188/2025.
Mr. S.S. Chauhan, learned Deputy Advocate General along with Mr.
Vikash Uniyal, learned Brief Holder for the State.
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Hon'ble Pankaj Purohit, J.
These two writ petitions involved common
question of law and fact, therefore, both the writ petitions
are considered and decided together. For the sake of
brevity, the facts of WPCRL No.861/2023 only are being
considered.
2. By means of the present writ petition,
petitioners have put to challenge the First Information
Report No.0163 of 2023 dated 24.03.2023, under
Sections 2 & 3 of the U.P. Gangster and Antisocial
2025:UHC:6653
Activities (Prevention) Act, 1986, (for short "The Act,
1986"), registered at Police Station Haldwani, District
Nainital.
3. Facts of the case are that an FIR was lodged on
24.03.2023 being FIR No.163 of 2023 at Police Station
Haldwani, District Nainital for the offences under
Sections 2/3 of the Act, 1986 against the petitioners and
one other. It was stated in the FIR that these three
accused persons are the member of a gang whose main
purpose is to cheat the people and to usurp their hard
earned money. The gang chart of these accused persons
was also prepared which was sent and got approval of the
concerned District Magistrate on 24.03.2023. With these
averments, the FIR was lodged.
4. The ground of challenge which has been
launched by the petitioners is mainly that the gang chart
was not prepared by the respondent nos.1 & 2 in
accordance with the Government Order dated
10.10.1997. The said Government Order is annexed by
the petitioners along with supplementary affidavit as SA-
1.
5. Learned counsel for the petitioners contends
that, according to the Government Order dated
10.10.1997, it is mandatory to convene a joint meeting
between the Senior Superintendent of Police (SSP) and
the District Magistrate before granting approval for the
imposition of the Gangsters Act and for the lodging of the
First Information Report (FIR). To substantiate this
argument, he refers to paragraph no.8(x) and (?k) of the
said Government Order, which reads as under:-
"8(x½ fxjksg dh lwph ds lkFk leqfpr lk{; ,oa vk/kkj dk fooj.k
Hkh j[kk tk; rFkk ofj'B iqfyl v/kh{kd@iqfyl v/kh{kd bl lEcU/k
2025:UHC:6653
esa ftykkf/kdkjh ds lkFk Hkyh&Hkakfr ijh{k.k ds mijkUr gh bl lwph
dks vfUre :Ik iznku djs;a
¼?k½ lwph ij ofj'B iqfyl v/kh{kd@iqfyl v/kh{kd ,oa ftykf/kdkjh
ds vuqeksnu ds mijkUr gh vfxze dk;Zokgh dh tk;;"
6. It is further contended by the learned counsel
for the petitioner that the aforementioned Government
Order was issued by the erstwhile State of Uttar Pradesh.
However, at present, the State of Uttar Pradesh has
promulgated the U.P. Gangsters and Anti-Social Activities
(Prevention) Rules, 2021 (hereinafter referred to as the
"Rules, 2021"). Now, in the State of U.P., FIRs under the
Gangsters Act are being registered in accordance with the
provisions of Rule 5(3) of the Rules, 2021. He further
submits that these Rules were framed by the State of
U.P. only after the intervention of the Hon'ble High Court
of Judicature at Allahabad in Criminal Misc. Bail
Application No.14323 of 2021, Nishant @ Nishu vs.
State of U.P and connected decided on 19.03.2021.
7. Per contra, the learned State Counsel does not
dispute the legal position as laid down in the Government
Order dated 10.10.1997. However, he candidly admits
that, prior to the invocation of the provisions of the Act,
1986 and before the lodging of the FIR, no joint meeting
of the Senior Superintendent of Police (SSP) and the
District Magistrate was convened, although there is
printed proforma of the gang chart which bears the
signatures of both the SSP and the District Magistrate. In
support of his case, he has relied upon the case of Apex
Court in the case of Vinod Bihari Lal vs. State of U.P.
and another; reported in 2025 SCC Online SC 1216.
For the ready reference, para 55 of the said judgment is
reproduced hereinbelow:-
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"55. This Court in Nenavath Bujji v. State of Telangana &
Ors., reported as 2024 SCC OnLine SC 367, wherein one of
us, J. B. Pardiwala J., writing for the Bench, while examining
the attributes of satisfaction of the detaining authority under
the relevant enactment, held that application of mind is
implicit in subjective satisfaction of an authority. It was
expressly held that proper satisfaction of the authority should
be reflected clearly and in categorical terms. We shall
reproduce the observations which apply Crl. Appeal No. 777-
778/2025 31 of 38 mutatis mutandis to the satisfaction of the
approving authority. It reads thus:
"43. We summarize our conclusions as under:--
(i) The Detaining Authority should take into consideration
only relevant and vital material to arrive at the requisite
subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative,
that wherever a decision-making function is entrusted to
the subjective satisfaction of the statutory functionary,
there is an implicit duty to apply his mind to the pertinent
and proximate matters and eschew those which are
irrelevant & remote,
(iii) There can be no dispute about the settled proposition that
the detention order requires subjective satisfaction of the
detaining authority which, ordinarily, cannot be
questioned by the court for insufficiency of material.
Nonetheless, if the detaining authority does not consider
relevant circumstances or considers wholly unnecessary,
immaterial and irrelevant circumstances, then such
subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not sit
in judgment over the correctness of the subjective
satisfaction. The anxiety of the Court should be to
ascertain as to whether the decision-making process for
reaching the subjective satisfaction is based on objective
facts or influenced by any caprice, malice or irrelevant
considerations or non-application of mind,
(v) While making a detention order, the authority should
arrive at a proper satisfaction which should be reflected
clearly, and in categorical terms, in the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in
the order that "it was necessary to prevent the detenu
from acting in a manner prejudicial to the maintenance of
public order". Rather the detaining authority will have to
justify the detention order from the material that existed
before him and the process of considering the said
material should be reflected in the order of detention
while expressing its satisfaction,
(vii) (vii) Inability on the part of the state's police machinery to
tackle the law and order situation should not be an
excuse to invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the
ground(s) furnished to the detenu to reinforce the order of
detention. It cannot be explained by reason(s)/grounds(s)
not furnished to the detenu. The decision of the authority
Crl. Appeal No. 777-778/2025 32 of 38 must be the
2025:UHC:6653
natural culmination of the application of mind to the
relevant and material facts available on the record, and,
(ix) To arrive at a proper satisfaction warranting an order of
preventive detention, the detaining authority must, first
examine the material adduced against the prospective
detenu to satisfy itself whether his conduct or
antecedent(s) reflect that he has been acting in a manner
prejudicial to the maintenance of public order and,
second, if the aforesaid satisfaction is arrived at, it must
further consider whether it is likely that the said person
would act in a manner prejudicial to the public order in
near future unless he is prevented from doing so by
passing an order of detention. For passing a detention
order based on subjective satisfaction, the answer of the
aforesaid aspects and points must be against the
prospective detenu. The absence of application of mind to
the pertinent and proximate material and vital matters
would show lack of statutory satisfaction on the part of
the detaining authority."
(Emphasis supplied)
8. Heard learned counsel for the parties and
perusal of the gang chart, this Court is of the view that
mere affixation of signatures of the SSP and the District
Magistrate on the gang chart does not, by itself, amount
to compliance with the mandatory requirement laid down
in the Government Order dated 10.10.1997. The gang
chart does not indicate that any independent opinion was
recorded in writing prior to the direction for lodging of the
FIR under the Act, 1986. The case-law referred by the
learned DAG rather helps the petitioner. In the absence
of such mandatory procedural compliance, the impugned
FIRs are not sustainable in the eyes of law and are liable
to be quashed by this Court.
9. Accordingly, both the writ petitions are
allowed. First Information Report No.0163 of 2023 dated
24.03.2023, under Sections 2 & 3 of the U.P. Gangster
and Antisocial Activities (Prevention) Act, 1986, (for short
"The Act, 1986"), registered at Police Station Haldwani,
District Nainital in WPCRL No.861 of 2023 and First
Information Report No.04 of 2025 dated 12.02.2025,
2025:UHC:6653
under Sections 2/3(1) of the U.P. Gangster and Antisocial
Activities (Prevention) Act, 1986, registered at Police
Station Devprayag, District Tehri Garhwal in WPCRL
No.188 of 2025 are hereby quashed, qua the petitioners
only. Consequently, all the subsequent proceedings
pursuant to the impugned F.I.R. qua the petitioners
automatically shall come to an end.
10. However, this Court also feels it is necessary
that the State of Uttarakhand would give due importance
to the matter and frame rules under Section 23 of the
Act, 1986, as has been done by the State of Uttar
Pradesh.
11. Let the copy of this judgment be handed over
to learned Registrar General, High Court of Uttarakhand
who shall transmit its copies to the Principal Secretary
(Home), Director General of Police, State of Uttarakhand,
all the S.P./SSPs of the State as also all the Sessions
Judges of the State to ensure compliance in letter and
spirit within time bound period. All the pending gang
charts be also amended accordingly.
12. Pending application, if any, stands disposed off
accordingly.
(Pankaj Purohit, J.)
30.07.2025
AK
