An FIR under the Gangster Act is invalid if it fails to mention the corresponding provision, violating statutory guidelines.

1. Heard Sri Arjun Singh Yadav, Advocate holding brief of Sri Babu Lal Ram, learned counsel for the petitioner and Sri Ratan Singh, learned AGA for the State.

2. The present writ petition has been preferred for quashing the FIR dated 29.02.2024 registered as Case Crime No.28 of 2024, under S.3(1) U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station - Alinagar, District - Chandauli and for a direction to respondents - State not to take coercive action against the petitioner pursuant to aforesaid FIR.

3. Contention of learned counsel for the petitioner is that from perusal of the gang chart of the impugned FIR, it is clear that the charge sheet in the base case was filed on 20.12.2020 and after that, no case was registered against the petitioner and after more than three years impugned FIR was lodged on 29.02.2024 by approving the gang chart on 14.02.2024 which is in violation of proviso of R.4(2) of U.P. Gangster and Anti - Social Activities (Prevention) Rules, 2021 (hereinafter referred to as the 'Gangster Rules'). It is further submitted by learned counsel for the petitioner that the impugned FIR was registered under S.3(1) of the Gangster Act without mentioning the corresponding provision of S.2(b) of the U.P. Gangster and Anti - Social Activities (Prevention) Act, 1986 (in short the 'Gangster Act') on the basis of which he was named a gangster, which is against the law laid down by this Court in the case of Asim alias Hassim v. State of U.P. and another, 2024 (1) ADJ 125 :(AIROnLine 2024 All. 1194) DB.

4. Per contra, learned counsel AGA for the State has submitted that case of the petitioner does not cover under the proviso of R.4(2) of the Gangster Rules, as the same is regarding the offences which do not fall within the purview of the Gangster Act. It is also submitted by learned AGA that so far as contention of counsel for the petitioner that guidelines issued in the judgment of Asim alias Hassim (supra) has been violated is also misconceived because that judgment was already referred to Larger Bench in the case of Dharmendra alias Bhima and another v. State of U.P. and four others in Criminal Misc. Writ Petition No.1049 of 2024 vide order dated 04.03.2024.

5. Considering the rival submissions of learned counsel for the parties and perusal of record, following two questions arise for determination of this case;

(i) Which offences are covered under the proviso of R.4(2) of the Gangster Rules, 2021.

(ii) Whether the guidelines issued in Asim alias Hassim (supra) is still valid despite the reference of the same to the Larger Bench in the case of Dharmendra alias Bhima (supra).

6. For determination of the first question, it would be apposite to mention R.4 of the Gangster Rules, which is being quoted as under;

4. Presence at the scene of incident or direct participation in the incident not necessary.

(1) Presence at the scene of incident or direct participation in the incident is not necessary: For committing the criminal act defined in clause (b) of S.2 of the Act, if any person organizes the whole gang or abets or aids the gang leader or member of that gang or provides protection and shelter to any such person, with the knowledge that the person in question is a gang leader or member of a gang or involved in committing / aiding / abetting a criminal act, before or after the commission of such activity, then such a person shall also be liable under the provisions of the Act even though the whole gang had not participated in the incident at the time of commission of the said incident or was not present at the scene of the incident.

(2) It is not necessary to commit any offence together: For a person to be a member of a gang under the Act, it is not necessary for him to have committed