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2013 DIGILAW 297 (UTT)

SOMNATH v. STATE OF UTTARAKHAND

2013-06-10

Alok Singh

body2013
JUDGMENT Per : Hon’ble Alok Singh, J. 1. At the outset, it is pertinent to mention here that appellants Shakoor, Zaheed and Jalil have preferred appeals through Jail Authorities bearing CRJA Nos. 57, 58, 59 of 2010 and have also filed appeal through their Advocate Ms. Neetu Singh bearing CRLA No. 178 of 2011. This Court, vide order dated 07.05.2013 passed in CRJA No. 56 of 2010, was pleased to appoint Mr. S.K. Shandilya, Advocate as Amicus Curiae for appellant Raju Mandal. Appellant Rakesh has preferred criminal appeal no. 255 of 2010 through his Advocate Mr. S.K. Shandilya and appellant Somnath has preferred criminal appeal no. 168 of 2010 through his Advocate Mr. S. C. Tyagi. 2. All these appeals are arising out of judgment and order dated 31.07.2010 passed by Special Judge, (Gangster Act), Haridwar in Special Sessions Trial No. 18 of 2009 whereby appellants were convicted for the offences punishable under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (for short ‘the Gangster Act’) and were sentenced to undergo five years rigorous imprisonment each and to pay fine of Rs. 5,000/- each and in default of making payment of fine, to undergo additional imprisonment for two months. 3. Brief facts of the present case, inter alia, are that after approval of Gang Charts by District Magistrate, an FIR was registered as Case Crime No. 113 of 2008 at police station Jwalapur, District Haridwar against accused appellants Raju Mandal, Jaleel, Zahid, Shakur, Somnath, Rakesh under Section 2/3 of the Gangster Act stating that accused persons formed a gang and were involved in violence by committing loot, dacoity, murder and they created an atmosphere of terror in society, consequently, nobody dared to lodge any complaint against them; nobody came forward to depose against them. A number of criminal cases were registered against the accused persons mainly under Section 412, 395 IPC. 4. A number of criminal cases were registered against the accused persons mainly under Section 412, 395 IPC. 4. As per the Gang Chart following cases were registered against the accused, details whereof read as under: i. Against appellant Raju Mandal Case Crime No. 494/2007 under Section 395, 397, 412 IPC; Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 579/2007 under Section 25 of the Arms Act; Case Crime No. 580/2007 under Section 25 of the Arms Act; Case Crime No. 581/2007 under Section 25/4 of the Arms Act; Case Crime No. 582 of 2007 under Section 25/4 of the Arms Act; Case Crime No. 583 of 2007 under 14 of the Foreign Act; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/ 2007 under Section 395, 397, 412 IPC were registered. ii. Against appellant Jaleel Case Crime No. 494/2007 under Section 395, 397, 412 IPC; Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 580/2007 under Section 25 of the Arms Act; Case Crime No. 583 of 2007 under 14 of the Foreign Act; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/ 2007 under Section 395, 397, 412 IPC were registered. iii. iii. Against appellant Zahid Case Crime No. 494/2007 under Section 395, 397, 412 IPC; Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 581/2007 under Section 25/4 of the Arms Act; Case Crime No. 583 of 2007 under 14 of the Foreign Act; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/ 2007 under Section 395, 397, 412 IPC were registered. iv. Against appellant Shakoor Case Crime No. 494/2007 under Section 395, 397, 412 IPC; Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 582/2007 under Section 25/4 of the Arms Act; Case Crime No. 583 of 2007 under 14 of the Foreign Act; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/ 2007 under Section 395, 397, 412 IPC were registered. v. Against appellant Somnath, Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/ 2007 under Section 395, 397, 412 IPC were registered. iv. Against appellant Rakesh Case Crime No. 494/2007 under Section 395, 397, 412 IPC; Case Crime No. 578/2007 under Section 399, 412 IPC; Case Crime No. 110/2007 under Section 395, 412 IPC; Case Crime No. 169 of 2007 under Section 395, 412 IPC; Case Crime No. 179 of 2007 under Section 395, 397, 412 IPC; Case Crime No. 230/2007 under Section 395, 397, 412 IPC; Case Crime No. 308/2007 under Section 395, 397, 412 IPC; Case Crime No. 583/2007 under Section 395, 397, 412 IPC were registered. 5. 5. Having investigated the matter, Investigating Officer submitted charge-sheet against the appellants for the offence punishable under Section 2/3 of the Gangster Act. Appellants were charged for the offence punishable under Section 2/3 of the Gangster Act. Appellants denied the charges and claimed trial. 6. From the side of prosecution, PW1 Head Constable Karam Singh Chauhan, PW2 Chandan Singh Bisht, PW3 Rivesh Kumar Goyal, PW4 Jagdish Kumar Lunyal, PW5 Surendra, PW6 Ashok Kumar Garg, PW7 Kunwar Singh Rawat, PW8 Rajendra Singh, PW9 Rajpal Singh were examined. Statements of appellants were also recorded under Section 313 Cr.P.C. 7. Learned trial court, having perused the entire material made available on record, convicted and sentenced the appellants, as mentioned hereinabove. 8. I have heard Mr. S.K. Shandilya, Ms. Neetu Singh, Mr. S.C. Tyagi learned counsel for the appellants and Mr. P.S. Danu, Brief Holders for the State and have carefully perused the record. 9. Undisputedly, vide judgment and order dated 08.07.2010 passed by Additional Sessions Judge, Rishikesh, District Dehradun, accused appellant Raju Mandal was held guilty, in case crime no. 583 of 2007 under Section 395, 397, 506 IPC, and sentenced to undergo 10 years imprisonment and to pay fine of Rs. 10,000/-; vide judgment and order dated 31.07.2010 passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 199 of 2008, accused appellant Raju Mandal was held guilty and sentenced to undergo 10 year rigorous imprisonment and to pay fine of Rs. 10,000/- under Section 395, 397, 412 IPC; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 200 of 2008, accused appellant Raju Mandal was held guilty under Section 399, 402 IPC and sentenced for the period already undergone; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 201 of 2008, accused appellant Raju Mandal was held guilty and sentenced to undergo six months’ imprisonment under Section 25 of the Arms Act. 10. Accused appellant Jaleel, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs. 10. Accused appellant Jaleel, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs. 10,000/-; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 199 of 2008, accused appellant Jaleel was held guilty and sentenced to undergo 10 year rigorous imprisonment and to pay fine of Rs. 10,000/- under Section 395, 397, 412 IPC; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 200 of 2008, accused appellant Jaleel was held guilty under Section 399, 402 IPC and sentenced for the period already undergone and to pay fine of Rs. 500. 11. Accused appellant Zahid, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs.10,000/-; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 199 of 2008, accused appellant Zahid was held guilty and sentenced to undergo 10 year rigorous imprisonment and to pay fine of Rs.10,000/- under Section 395, 397, 412 IPC; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 200 of 2008, accused appellant Zahid was held guilty under Section 399, 402 IPC and sentenced to the period already undergone and to pay fine of ‘ 500. 12. Accused appellant Shakoor, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs.10,000/-; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 199 of 2008, accused appellant Shakoor was held guilty and sentenced to undergo 10 year rigorous imprisonment and to pay fine of Rs. 10,000/- under Section 395, 397, 412 IPC; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 200 of 2008, accused appellant Shakoor was held guilty under Section 399, 402 IPC and sentenced for the period already undergone and to pay fine of ‘ 500. 13. Accused appellant Somnath, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs. 10,000/-; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 200 of 2008, accused appellant Somnath was held guilty under Section 399, 402 IPC and sentenced for the period already undergone and to pay fine of ‘ 500. 14. Accused appellant Rakesh, vide judgment and order dated 08.07.2010, passed by Additional Sessions Judge, Rishikesh, District Dehradun, was held guilty in case crime no. 583 of 2007 under Section 395, 397, 506 IPC and sentenced to undergo 10 years imprisonment and to pay fine of Rs. 10,000/-; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 199 of 2008, accused appellant Rakesh was held guilty and sentenced to undergo 10 year rigorous imprisonment and to pay fine of Rs. 10,000/- under Section 395, 397, 412 IPC; vide judgment and order dated 31.07.2010, passed by Additional Sessions Judge/1st FTC, Haridwar, in Sessions Trial No. 200 of 2008, accused appellant Rakesh was held guilty under Section 399, 402 IPC and sentenced for the period already undergone and to pay fine of Rs. 500. 15. PW1 Constable Karam Singh Chauhan, while appearing in the witness box, proved the FIR and entries of GD Exhibit Ka1 and Ka 2. 16. PW2 Chandan Singh Bisht, while appearing in the witness box, was successful in proving the Gangchart against the appellants. 17. None of the appellants could state that Gang chart, so approved by the District Magistrate, is incorrect and wrong. 18. The words “gang” and “gangster” are defined in the Gangster Act, which are being reproduced as under: “(b). 16. PW2 Chandan Singh Bisht, while appearing in the witness box, was successful in proving the Gangchart against the appellants. 17. None of the appellants could state that Gang chart, so approved by the District Magistrate, is incorrect and wrong. 18. The words “gang” and “gangster” are defined in the Gangster Act, which are being reproduced as under: “(b). “Gang” means a group of persons, who acting either singly or collectively, 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 advantage of himself of any other person, indulge in anti-social activities. (c) “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.” 19. A member or leader or organizer of a gang including abettor of the crime and person, who has assisted in the activities of crime, shall fall within the definition of Gangster, as defined in clause of (c) of Section 2 of the Gangster Act. 20. Full Bench of Allahabad High Court in the case of Ashok Dixit Vs. State of U.P. reported in 1987 (1) Allahabad Weekly Cases 544 has held that the Gangster Act is not ultra vires and further held that definition of ‘member of the family of a public servant’ is highly vague. Division Bench of Allahabad High Court in the case of Rinku @ Hukku Vs. State of U.P. reported in 2000 Cr.L.J. 2834 was pleased to hold that in view of Section 13 of the U.P. General Clauses Act, the activities denotes activity as well, as the said provisions are pari materia of Section 13 of the U.P. General Clauses Act, 1897. As such, a single act of anti social activity can come within the definition of Gangster. 21. Undisputedly, appellants have already been held guilty for anti-social activities and crime against the society, as indicated hereinbefore, therefore, they fall within the definition of ‘gang’ and ‘gangster’ as defined under clause (b) and (c) of Section 2 of the Gangster Act. 22. As such, a single act of anti social activity can come within the definition of Gangster. 21. Undisputedly, appellants have already been held guilty for anti-social activities and crime against the society, as indicated hereinbefore, therefore, they fall within the definition of ‘gang’ and ‘gangster’ as defined under clause (b) and (c) of Section 2 of the Gangster Act. 22. As per Section 3 of the Gangster Act, if an accused is proved to be a gangster, as defined under Section 2 (c) of the Gangster Act, then he is liable to be convicted. Since appellants were found involved in anti-social activities and crime against the society, as indicated hereinbefore, therefore, they fall within the definition of ‘gangster’, therefore, no interference is called for in the impugned judgment. All the appeals are dismissed. Impugned judgment and order dated 31.07.2010 passed by Special Judge, (Gangster Act), Haridwar in Special Sessions Trial No. 18 of 2009 is hereby affirmed. 23. Let a copy of this judgment be placed in all the connected files. 24. Let a copy of this judgment be forwarded to the court below for information along with lower court record.