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2009 DIGILAW 903 (ALL)

VARNIT KUMAR v. STATE OF U P

2009-03-26

AMAR SARAN, R.N.MISRA

body2009
AMAR SARAN AND R. N. MISRA, JJ. This petition has been filed for quash ing an F. I. R. dated 31. 1. 2009 under sections 2/3 of the U. P. Gangsters & Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the Act), Police Station Sadar Bazar, District Saharanpur in Case Crime No. 99 of 2009. The allegations in the F. I. R. were basi cally that the petitioner belonged to a gang of motorcycle thieves and some F. I. Rs. Were lodged against him. 2. It was argued by the learned Counsel for the petitioner that three F. I. Rs. were lodged on the same day and that the petitioner could not be considered a mem ber of the gang on that basis. Specifically our attention was drawn to the definition of gang under section 2 (b) of the Act, which reads as follows: - 2 (b)"gang means a group of persons, who acting either singly or collec tively, by violence, or threat or show of violence, or intimidation, or coercion, or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advan tage for himself or any other per son, indulge in anti-social activi ties, namely: 3. It was argued that the indispen sable requirement for considering a person to be a member of the gang would be that he should have either singly or collectively have used violence, or threat or show of violence, or intimidation, or coercion, and thus the use of force was essential for con stituting a gang, and a member of the said gang could only then be shown to be a gangster. However, we find that apart from the aforesaid requirements as to use or show of violence, the definition of gang also has a supplementary clause of "or oth erwise", for the objective of disturbing public order or of gaining undue temporal, pecuniary, material or other advantage, when the accused engages in anti-social activities, as delineated under sections 2 (b) (i) to (xiv ). 4. It was, then argued by petitioners Counsel that the expression "or otherwise" should be read ejusdem generis with the other terms which require the use of force or violence mentioned in the earlier part of the definition of a "gang" under section 2 (b ). 5. We are not in agreement with this submission. 4. It was, then argued by petitioners Counsel that the expression "or otherwise" should be read ejusdem generis with the other terms which require the use of force or violence mentioned in the earlier part of the definition of a "gang" under section 2 (b ). 5. We are not in agreement with this submission. The offences and other anti social activities which are described in sec tion 2 (b) (i) to (xv) include offences under Chapter-XVII of the Indian Penal Code, which include the offence of theft under section 378. Now theft involves dishonestly taking any movable property out of the possession of any other without his con sent. Theft is usually a stealthy act, which is committed without the knowledge of the victim of the theft. Again Chapter-XVII of the Indian Penal Code also includes of fences under section 403 and the related sections, dealing with criminal misappro priation of property. Under these offences the moveable property of another person is dishonestly misappropriated or converted to by the accused for his own use. Likewise under section 405 and allied sections deal ing with the crime of criminal breach of trust, dishonest misappropriation of prop erty entrusted to any person for his own use are covered. The provisions do not re quire the existence of force, violence. Simi larly section 410 IPC and related sections concern stolen property, section 420 IPC and related sections deal with offences of cheating, which only involve deception, fraudulent or dishonest inducement to a person to part with his property or to con sent to something which he would not have otherwise done, were he not so deceived. No element of force or violence is involved under these provisions also. Other anti social activities which could be committed by a gang under section 2 (b) (ii) are distill ing or manufacturing or storing or trans porting or importing or exporting or selling of distributing any liquor, or intoxicating or dangerous drugs etc. , in contravention of the provisions of U. P. Excise Act, 1910 or Narcotic Drugs and Psychotropic Sub stances Act. These crimes may be accom panied by violence in some conditions, but use of violence is not a pre-condition for constituting these crimes. , in contravention of the provisions of U. P. Excise Act, 1910 or Narcotic Drugs and Psychotropic Sub stances Act. These crimes may be accom panied by violence in some conditions, but use of violence is not a pre-condition for constituting these crimes. Again although occupying or taking possession of the im movable property of another in violation of law is usually a crime of violence, but not necessarily so, when someone seeks in obtaining the title or possession to the prop erty of another by forgery or fraud. Again offences under section 3 of the U. P. Public Gambling Act may again not necessarily involve the use of force. Inducing a person to go to a foreign country on a false repre sentation with the promise that he would be provided with employment, trade or a profession in the foreign country under section 2 (b) (xiii) of the Gangsters Act again does not involve the use of violence or show of violence, but it may be the result of a fraud and deception practised on the victim. Therefore, the contention of the learned Counsel for the petitioner that ex pression word "otherwise" must be read ejusdem generis with the other instances of violence mentioned in the earlier part of the sub-section is not correct and the Gangsters Act seeks to prevent and punish activities which may result in undue tem poral, pecuniary, material or other advantage to the gangster or any other person and which may or may not necessarily in volve the use of violence. 6, Another criticism of the conten tion raised by the petitioner is that in the decision of Kishan Pal @ K. P. v. State of U. P. and another 2006 (54) ACC 1015 relying on the Full Bench de cision in Ashok Kumar Dixit v. State of U. P. and another 1987 (24) ACC 164. it has been observed that it is not possible to quash the investigations in the proceedings under the Gangsters Act pending before the Special Judges in writ petitions, and the writ Courts cannot scru tinize individual cases of investigation for granting relief in direct conflict with the Full Bench decision in Ashok Kumar Dixit. it has been observed that it is not possible to quash the investigations in the proceedings under the Gangsters Act pending before the Special Judges in writ petitions, and the writ Courts cannot scru tinize individual cases of investigation for granting relief in direct conflict with the Full Bench decision in Ashok Kumar Dixit. Relying on the decision of Shamsul Islam v. State of U. P. , 1999 (38) ACC 315 it is further pointed out that if the original relief of quashing of the first information report cannot be granted in the writ petition, the additional relief of stay of arrest of the accused can also not be granted. 7. For these reasons, we find no good ground to interfere with the investi gation or to quash the F. I. R. in this writ petition. The petition is accordingly dis missed. However, it is directed that in case, the petitioner surrenders before the Special Judge concerned within three weeks, his prayer for bail may be considered and disposed of expeditiously in accordance with the provisions of the Gangsters Act. Petition Dismissed. .