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2024 Supreme(Online)(ALL) 3059
Court No. 84 AFR Reserved on 04.7.2024 Delivered on 29.7.2024 Neutral Citation No.-2024:AHC:121066 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL NO. 5295 OF 2023 (Afjal Ansari Vs. State of U.P.)
Appellant through : Mr. G.S. Chaturvedi, Senior Advocate Mr. D.S. Mishra, Senior Advocate Mr. Upendra Upadhyay, Advocate State through : Mr. P.C. Srivastava, AAG Mr. J.K. Upadhyay, AGA Victim through : Mr. Sudist Kumar, Advocate Connected With GOVERNMENT APPEAL NO. 198 of 2024 (State of U.P. Vs. Afjal Ansari)
State through : Mr. P.C. Srivastava, AAG Mr. J.K. Upadhyay, AGA Accused-O.P. through : Mr. G.S. Chaturvedi, Senior Advocate Mr. D.S. Mishra, Senior Advocate Mr. Upendra Upadhyay, Advocate And CRIMINAL REVISION NO. 3535 of 2023 (Piyush Kumar Rai Vs. State of U.P. and another)
Revisionist through : Mr. Sudist Kumar, Advocate State through : Mr. P.C. Srivastava, AAG Mr. J.K. Upadhyay, AGA Accused-O.P. through : Mr. G.S. Chaturvedi, Senior Advocate Mr. D.S. Mishra, Senior Advocate Mr. Upendra Upadhyay, Advocate **************
Index
CORAM : Hon'ble Sanjay Kumar Singh,J.Srl. No. Contents Page Nos. 1. Details of conviction and sentence. 03-04 2. Directions of Hon'ble Supreme Court. 04-05 3. Brief facts. 05-24 4. Submissions on behalf of appellant in Criminal Appeal. 24-30 5. Submissions on behalf of the State and Victim in Criminal Appeal. 30-35 6. Submissions on behalf of the State and Victim in Government Appeal and Criminal Revision. 36 7. Submissions on behalf of accused-Opposite party in Government Appeal and Criminal Revision. 36-37 8. Definition of Gang, Gangster and Punishment under the Gangster Act. 37-41 9. Ingredients of the Gangsters Act. 41 10. Main Issues. 42 11. Analysis about base case. 42-44 12. Analysis about gang chart. 44 13. Analysis about charge. 45 (a) Discussion about first part of charge. 46 (b) Discussion about second part of charge as well as prosecution evidence. 46-55 (c) Discussion about third part of charge. 56 14. Analysis of statement U/s 313 Cr.P.C.. 56 15. Analysis about defence evidence. 57 16. Discussion about criminal history of appellant. 57-59 17. Impact of Criminal History of Mukhtar Ansari in this case. 59 18. Discussion on judicial Notice. 60-61 19. Analysis about principle of estoppel. 61 20. Findings recorded by the Trial Cour.t 61-62 21. Principles laid down by Hon'ble Supreme Court in the Case of Farhana vs. State of U.P., 2024 SCC OnLine SC 159 and it's retrospective effect. 62-65 22. General principles of conviction or acquittal. 65-66 23. Conclusion. 66 24. Result. 66-68
Petitioner: Abhishek Kumar Mishra , Ajay Srivastava , Chandrakesh Mishra and Upendra Upadhyay
Respondent: G.A. and Sudist Kumar
JUDGMENT
1- Criminal Appeal No. 5295 of 2023 under Section 18 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 read with Section 374 (2) of Criminal Procedure Code has been filed by appellant Afjal Ansari against the judgement and order dated 29.04.2023 passed by the learned Additional Sessions Judge/Special Judge, M.P./M.L.A Court, Ghazipur in Special Session Trial No. 980 of 2012 arising out of Case Crime No. 1052 of 2007, under Section 3(1) of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, (hereinafter referred to as “the Gangsters Act”) police station Mohammadabad, district Ghazipur, whereby the learned Trial Court convicted and sentenced the appellant to four years' simple imprisonment and a fine of Rs. 1,00,000/- (rupees one lac ) and in case of default in payment of fine, the appellant was further directed to undergo six months’ rigorous imprisonment.
2- A Government Appeal No. 198 of 2024 under Section 377 of Criminal Procedure Code has been filed by the State against the judgement and order dated 29.04.2023 passed by the Additional Sessions Judge/Special Judge, M.P./M.L.A Court, Ghazipur in Special Session Trial No. 980 of 2012 arising out of Case Crime No. 1052 of 2007, under Section 3(1) of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, police station Mohammadabad, district Ghazipur for enhancement of sentence awarded to the appellant.
3- One Piyush Kumar Rai, son of late Krishna Nand Rai (one of the deceased) of case crime No. 589 of 2005, under Sections 147, 148, 149, 302, 404, 120-B IPC and 7 Criminal Law Amendment Act, police station Bhawarkol, district Ghazipur has also filed Criminal Revision No. 3535 of 2023 Under Section 397/401 Cr.P.C. against the aforesaid judgement and order dated 29.04.2023 for enhancement of sentence awarded to the appellant.
4- After the conviction of the appellant by the Trial Court, when this appeal (Criminal Appeal No. 5295 of 2023) was filed, a Coordinate Bench of this Court vide order dated 24.07.2023 has suspended the sentence of the appellant and he was directed to be released on bail, but prayer to stay the conviction of the appellant was rejected.
5- The State of U.P. did not challenge the above order dated 24.07.2023, whereby this Court while suspending the sentence, granted bail to the appellant before the Hon’ble Supreme Court, but the appellant being aggrieved and dissatisfied with the part of above order of this Court dated 24.07.2023 refusing to stay the conviction of the appellant, has filed Criminal Appeal No. 3838 of 2023 before the Hon'ble Supreme Court, which has been disposed of suspending the conviction of the appellant vide order dated 14.12.2023 [Afjal Ansari Vs. State of Uttar Pradesh, (2024)2 SCC 187] with certain directions, which are as under:-
“24. We, thus, deem it appropriate to partially allow this appeal and suspend the conviction awarded to the Appellant in Special Sessions Trial No. 980/2012 subject to the following conditions, clarifications and directions:
i. The Ghazipur Parliamentary Constituency shall not be notified for bye-election, in terms of Section 151 of the RPA, till the decision of the Appellant’s criminal appeal by the High Court;
ii. The Appellant shall, however, not be entitled to participate in the proceedings of the House. He shall also not have the right to cast his vote in the House or to draw any perks or monetary benefits;
iii. The continuance of MP led welfare schemes in the Ghazipur Parliamentary Constituency without the Appellant being associated for the release of grants for such schemes, is not an irrevocable consequence as all such Schemes can be given effect, even in the absence of the local parliamentary representative;
iv. The Appellant shall not be disqualified to contest future election(s) during the pendency of his criminal appeal before the High Court and if he is elected, such election will be subject to outcome of the First Criminal
