Back
2023 Supreme(Online)(All) 28357
ALLAHABAD HIGH COURT
AFJAL ANSARI – Appellant
Versus
State – Respondent
A482/38478/2022
Acquittal in substantive offence does not bar prosecution under Gangsters Act if accused is member of gang committing offences with object of disturbing public order or gaining undue advantage.
Headnote:
GANGSTERS ACT - [KEYWORD] - [SUMMARY]
Fact of the Case:
The accused-petitioner, a social worker and politician, was acquitted in a case of brutal murder of a sitting MLA and six others. However, a case under the Gangsters Act was registered against him and co-accused for their alleged involvement in heinous offences and acquiring illegal wealth by striking fear and terror in the minds of the public. The accused-petitioner challenged the order rejecting his discharge application and the order framing charges against him under the Gangsters Act.
Finding of the Court:
The Court held that the acquittal of the accused-petitioner in the substantive offence did not bar his prosecution under the Gangsters Act. The Court relied on the definition of 'gang' under the Gangsters Act and held that if an accused belongs to a gang and commits offences individually or with other gang members with the object of disturbing public order or gaining undue advantage, he can be prosecuted and punished under the provisions of the Gangsters Act. The Court further held that the trial for offence by Special Judge should not have precedence over the trial of any other case against the accused-petitioner, and in the present case, the trial of the persons should have been conducted first before conducting the trial in the substantive offence. However, the Court found that the accused-petitioner never raised such an objection before the learned Special Judge, CBI/MP/MLA, New-Delhi, and therefore, the proceedings under the Gangsters Act would not get vitiated on this ground.
Issues: 1. Whether the acquittal of the accused-petitioner in the substantive offence barred his prosecution under the Gangsters Act?2. Whether the trial for offence by Special Judge should have precedence over the trial of any other case against the accused-petitioner?
Ratio Decidendi: 1. The acquittal of an accused in the substantive offence does not bar his prosecution under the Gangsters Act if he is a member of a gang and commits offences individually or with other gang members with the object of disturbing public order or gaining undue advantage.2. The trial for offence by Special Judge should not have precedence over the trial of any other case against the accused-petitioner, but the accused-petitioner's failure to raise this objection before the trial court would not vitiate the proceedings under the Gangsters Act.
Final Decision: The Court dismissed the accused-petitioner's petition challenging the order rejecting his discharge application and the order framing charges against him under the Gangsters Act.
1
A.F.R.
Court No. - 87
Case :- APPLICATION U/S 482 No. - 38478 of 2022
Applicant :- Afjal Ansari
Opposite Party :- State Of U.P. And Anothers
Counsel for Applicant :- Upendra Upadhyay,Ajay Srivastava,Sr.
Advocate
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh,J.
1. The present petition under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the “CrPC”) has been filed,
seeking quashing of the order dated 04.08.2022 whereby the discharge
application of the accused-petitioner has been rejected by the learned
Additional Sessions Judge 1st, Ghazipur in Special Sessions Trial
No.980 of 2012 (State Vs. Afjal Ansari) under Section 3(1) of The
Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act,
1986 (hereinafter referred to as the “Gangsters Act”), arising out of
Case Crime No.01052 of 2007 lodged at Police Station
Mohammadabad, District Ghazipur as well as for quashing of the
order dated 23.09.2022 passed by the Special Judge (MP/MLA)
Court/Additional Sessions Judge, Ghazipur by which charges have
been framed against the accused-petitioner in Special Sessions Trial
No.980 of 2012 under Section 3(1) of the Gangsters Act in the said
case.
Further prayer has been made for quashing of the entire proceedings
of the Special Sessions Trial No.980 of 2012.
2. Heard Mr. Dilip Kumar, learned Senior Advocate, assisted by Mr.
Upendra Upadhyay and Mr. Ajay Srivastava, Advocates, representing
the accused-petitioner, as well as Mr. Mahesh Chandra Chaturvedi,
Additional Advocate General assisted by Mr. Sanjay Kumar Singh,
representing respondent-State, and gone through the entire file.
3. It is said that the applicant is a social worker and politician. He
remained Member of Legislative Assembly (hereinafter referred to as
the “MLA”) from Mohammadabad Constituency, District Ghazipur
2
since 1985 and got elected five times. At present the accused-
petitioner is second time Member of Parliament from Ghazipur
Constituency.
4. The accused-petitioner was an accused in offence of brutal and
gruesome murder of the then sitting MLA, Late Krishna Nand Rai and
six others for which an FIR was lodged at Case Crime No.0589 of
2005, under Sections 147, 148, 149, 307, 302, 404 and 120-B IPC at
Police Station Bhanvar Kol, District Ghazipur. The accused-petitioner,
along with co-accused, were charge sheeted in the said offence. The
trial of the said case got transferred by the Supreme Court to the CBI
Court situated at Rouse Avenue Court Complex, New Delhi. The CBI
Court, presided over by Mr. Arun Bhardwaj, Special Judge (PC Act):
CBI-09 (MPs/MLAs Cases) RACC, New Delhi had acquitted all the
accused vide judgment and order dated 03.07.2019 as all the eye-
witnesses and other material witnesses turned hostile. Paragraphs 936
to 943 of the said judgment and order dated 03.07.2019 would be
relevant to extract here-under:-
“936. Hostile Witnesses:- This is a gruesome case involving
murder of seven persons. The investigation of the case was
transferred from U.P. Police to CBI. The trial of the case was
also transferred from U.P. to Delhi. Unfortunately, the case of
the prosecution has suffered as all the eye witnesses and other
material witnesses turned hostile.
937. The Hon'ble Supreme Court in the case of Mahender
Chawla & Ors vs. Union of India & Ors, 2018 (12) JT 21 has
noted the important of the witness particularly in a criminal
trial as under:-
"In search of truth, he plays that sacred role of the sun,
which eliminates the darkness of ignorance and
illuminates the face of justice, encircled by devils of
humanity and compassion.
xxx xxx xxx
The value of witnesses can’t be denied, keeping in view the
dependency of the criminal proceedings on the testimonies
and cooperation of witnesses in all the stages of the
proceedings, especially in those cases where the
prosecution has to establish the guilt with absolute
certainty via oral
