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Allahabad High Court · body

2010 DIGILAW 2571 (ALL)

VIJAY KUMAR PATHAK v. STATE OF U. P.

2010-08-25

RAJIV SHARMA, VIRENDRA SINGH

body2010
JUDGMENT By the Court.—Heard learned counsel for the petitioner and learned AGA for the State. 2. Aggrieved by the unjustified action of the police of PS Wazirganj, Lucknow, in invoking the provisions of Sections 2/3 of the U. P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, the petitioner has filed the instant writ petition inter alia on the grounds that no offence is made out under the provisions of the aforesaid Act, but the police with oblique motive and to victimize the petitioner has implicated him in the instant case although no such case is made out and at the most, the petitioner can be said to be guilty of the offence under the Public Gambling Act, 1867. 3. It appears that on 31.12.2009, at about 3.30 PM the police received an information from the informer that some persons are gaming in the compound of a timber shop. On this tip off, the police raided at the place and found that the petitioner, Guddu alias Akmal, Mohd. Waki, Mohd. Noor and Guddu, S/o Munna were gaming with the aid of cards. After due formalities and recovery of the currency, a case on crime No. 597/2009 under Sections 3/4 of the Public Gambling Act, 1867 was registered against the aforesaid persons. In this case, the petitioner was granted bail on 2.1.2010 by the competent Court. 4. To the utter shock and surprise of the petitioner, a FIR has been lodged by the police under Section 2/3 of the U.P. Gangsters and Anti-Social Activities ( Prevention) Act, 1986 [in short referred to as the ‘Act’] alleging therein that the petitioner and other accused persons are habitual offenders and spoiling the youth by involving them in gambling. According to him, there was no criminal antecedent of the petitioner and registration of the case under the Public Gambling Act was the first case against him.It has been vehemently argued that the police chief and the District Magistrate has granted sanction for registration of FIR under the Gangsters Act without applying their independent mind. 5. It has further been submitted that the petitioner had only went to play cards and neither he is running a Gambling Den nor his inciting the youth to involve themselves. Neither the petitioner is occupier nor the owner of the place, where it is alleged that the petitioner and other co-accused were involved in gaming. 5. It has further been submitted that the petitioner had only went to play cards and neither he is running a Gambling Den nor his inciting the youth to involve themselves. Neither the petitioner is occupier nor the owner of the place, where it is alleged that the petitioner and other co-accused were involved in gaming. Their case is only covered under the Public Gambling Act but they have been falsely implicated under the Gangsters Act. Moreover, there is no independent public witness to support the police version. 6. On the other hand, the learned Addl. Government Advocate made a feign attempt to justify the action of the police and lodging of the FIR under the Act. According to him that in the case registered under the Gambling Act, the police after due investigation and collecting evidence has submitted charge-sheet and on the basis of the facts which came into the light, the case under the Gangster Act was registered against him. 7. Before proceeding with the merits of the case, it would be apt to mention that this Court while entertaining the writ petition has stayed the arrest of the petitioner in the instant case crime No. 99 of 2010 registered at PS Wazirganj, District Lucknow. 8. We have perused the provisions of Section 3 and 4 of the Public Gambling Act, 1867 under which the FIR was registered against the petitioner and other co-accused, which are quoted hereunder : “3. 8. We have perused the provisions of Section 3 and 4 of the Public Gambling Act, 1867 under which the FIR was registered against the petitioner and other co-accused, which are quoted hereunder : “3. Penalty for owning or keeping, or having charge of a gaming house.—Whoever being the owner or occupier, or having the use of any house, walled enclosure, room or place, situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming house; and whoever, being the owner or occupier of any such house, walled enclosure, room or place as aforesaid, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming h ouse, and whoever has the care or management of, or in any manner assists in conducting the business of any house, walled enclosure, room or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid, and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, walled enclosure, room or place, shall be liable to a fine not exceeding two hundred rupees, or to imprisonment of either description as defined in the Indian Penal Code (45 of 1860) for any term not exceeding three months. 4. Penalty for being found in gaming house.—Whoever is found in any such house, walled enclosure, room or place, playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaining, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding one hundred rupees, or to imprisonment of either description, as defined in the Indian Penal Code (45 of 1860), for any term not exceeding one month, and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.” 9. It may be mentioned that the word “gang” means a group of persons, who are acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise the object of disturbing public order or of gaining any undue temporal, pecuniary material or other advantage for himself or any other person indulged in anti-social activities. On the other hand the word “ Gangster” means a member or leader or organizer of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities. 10. In the impugned FIR, it has been alleged that the petitioner and other accused are involved in anti-social activities and it is not in the public interest if the accused are allowed to remain free. It is also mentioned in the impugned First Information Report that there is a gang and the District Magistrate has been requested to accord approval for taking action under the Gangsters Act and the Gang Chart has been approved. A perusal of the gang-chart shows that against the petitioner and other accused persons there is only one case under the Public Gaming Act and there is no other case against any of the accused persons. 11. From the bare perusal of the impugned FIR and materials on record, we are of the view that no offence is made out against the petitioner although there is absolutely no allegation with respect to commission of any kind of offence which comes within the parameters of Gangsters Act but the same has been invoked, which emphatically proves the assertion of the petitioner that there is not a single iota of truth in the impugned FIR and perhaps, the same has been concocted with some hidden agenda. To us, it appears that the FIR has been lodged on presumptions. In other words, unless an allegation is there concerning an act or omission on the part of an accused, covered by the definition of the term”gang” or “gangster”, no FIR should be maintainable. 12. In view of the aforesaid discussion, the writ petition is allowed and the impugned FIR registered as case crime No. 99 of 2010 under Sections 2/3 of the U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, P.S. Wazirganj, District Lucknow, is hereby quashed. —————