Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 703

IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, VIKAS KUNVAR SRIVASTAV, JJ.
Santosh Batham – Petitioner
Versus
State of U.P. and Others – Respondents
Misc. Bench No. 13298 of 2021
Decided On : 30-06-2021

Advocates:
Advocate Appeared:
For the Petitioners: Amit Chaudhary, Pradeep Tiwari, Sonu Shukla.

Point of law: While holding the constitutional validity of the various provisions of the Gangster Act, the Court was of the view that under this Act, a person can be accused of an offence only if he had chosen to join a group which indulged in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C. only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

Headnote:
Constitution of India, 1950 - Article 226- Writ petition - Writ of Certiorari - Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 - Sections 2, 3 - Indian Penal Code, 1860 - Sections 419, 420, 447 - Damage To Public Property Act - Section 3 - Gang leader Birbal Gujarati alongwith his companions and members of gang do offences to earn for themselves physical and financial gains and basic benefits, grabbing the possession of land and threaten life and property to the affected person or anyone else if they protest - The manner of commission of their offence is very heinous - There is so much fear and terror in public mind that any person amongst the public has no courage to testify against them. In such a situation, it is not appropriate to let them roam freely – Whether person even for a single incident may be prosecuted under the Gangster Act – Whether District Magistrate did apply it's mind before granting approval to the gang chart.
Finding of the court: First information report contains the allegations that the petitioner and the others are taking recourse of public threats and coercion including physical violence to gang the voices of witness in cases against them - The criminal case shown in the gang chart against the present petitioner as well as his companions, the group members and leader of the gang is evident of this opinion. It is also noteworthy that the gang leader and other members of the group are involved in other offences of like nature shown in the gang chart - After having examined the submissions by parties and perused the F.I.R. the impugned F.I.R. discloses cognizable offence against the petitioner, hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner. While holding the constitutional validity of the various provisions of the Gangster Act, the Court was of the view that under this Act, a person can be accused of an offence only if he had chosen to join a group which indulged in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The element of actuaries was clearly present in the offence created under the statute, as observed by the Full Bench - There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.
Result: Writ petition dismissed.

JUDGMENT :

VIKAS KUNVAR SRIVASTAV, J.

1. The petitioner has filed this writ petition under Article 226 of the Constitution of India, with a prayer to issue writ of Certiorari or direction in the nature of Certiorari to quash the first information report bearing no. 0165/2021, under Sections 2/3 of Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act which shall hereinafter be referred as ‘Gangster Act’ only for the purpose of brevity and convenience.

2. The matter is to be heard before this Court as fresh for hearing through virtual mode. Learned counsel for the petitioner Sri. Amit Chaudhary, Advocate and learned A.G.A. for and on behalf of the State Ms. Nand Prabha Shukla, Advocate appear through video conferencing. Heard the learned counsels and perused the record.

3. For the purpose of easy reference, the relief sought in the petition is reproduced hereunder from the prayer part of the petition:

“(i) issue a writ of Certiorari or a writ order or direction in the nature of Certiorari to quash the impugned F.I.R. No. 0165/2021 Under Sections 2/3 Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 Police Station-Ganga Ghat District Unnao, Annexure No. 1 to this writ petition.

(ii) issue a writ of Certiorari or a writ order or direction in the nature of Certiorari to quash the Gang Chart.”

4. Consequent upon the aforesaid two main reliefs, an ancillary relief is also sought to issue the writ or direction in the nature of Mandamus commanding the opposite parties not to arrest the petitioner in pursuance to impugned first information report.

5. The petitioner-accused is arraigned alongwith two other co-accused in F.I.R. No. 0165/2021 Under Sections 2/3 Uttar Pradesh Gangster and Anti-social Activities (Prevention) Act, 1986 Police Station-Ganga Ghat District Unnao, hereinafter referred as “Gangster Act.”

6. The first information report and the gang chart prepared therein is made annexure no. 1 to the petition which discloses that the Police Station Ganga Ghat, District Unnao has lodged the impugned First Information Report under Section 2/3 of Gangster Act against the petitioner alongwith two others namely Birbal Gujrati S/o Gangaram R/o 14/7, Champapurva, Ganga Ghat, Unnao, Uttar Pradesh who is assigned the role of gang leader and Ram Surat Pandey S/o Jagdish Prasad R/o 15/232, Shakti Nagar, Shukla Ganj, Ganga Ghat, Unnao, Uttar Pradesh as member of the gang.

7. The perusal of gang chart shows that Santosh Batham, the petitioner is indulged in Case Crime No. 97/2018, under Sections 419, 420, 447 of Indian Penal Code, 1860 and Section 3 of Damage To Public Property Act, Police Station Ganga Ghat, District Unnao.

8. It is also reported that in aforesaid case, charge sheet has already been filed in the trial court on 26.12.2018. In the impugned first information report under Gangster Act, it is reported that the gang leader Birbal Gujarati alongwith his companions and members of gang do the offences to earn for themselves physical and financial gains and basic benefits, grabbing the possession of the land and threaten life and property to the affected person or anyone else if they protest. The manner of commission of their offence is very henious.

9. It is further reported in the first information report that for the reason of committing heinous crime by them as defined in Chapters XVI, XVII and XXII of the Indian Penal Code, 1860 in District Unnao, there is so much fear and terror in the public mind that any person amongst the public has no courage to testify against them. In such a situation, it is not appropriate to let them roam freely.

10. The said first information report in the course of due approval in hierarchy lastly reached to the District Magistrate, opposite party no. 3. In their sinonimos opinion as to the report of SHO, they were satisfied with the fact of accused persons' indulgence in crime and their terror in the public. To signify this satisfaction as well to accord approval, District Magis