Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2892 (ALL)

GUDDU @ PARVEJ v. STATE OF U. P.

2015-09-15

A.P.SAHI, PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT By the Court.—Heard learned counsel for the petitioner and the learned AGA. 2. The petitioner is an accused in a case under the Gambling Act and has also been booked under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.He prays for quashing of the impugned FIR for the offence under the Gangster Act. 3. Learned counsel for the petitioner submits that a co-accused in the very case had approached this Court and filed Crl. Misc. Writ Petition No. 19398 of 2015 where an interim protection has been granted by a division Bench on 11.8.2015. A copy of the said order in a pending petition is annexed as Annexure 3 to the petition and is extracted hereunder: “Heard learned counsel for the petitioner and learned A.G.A. for the State. This petition has been filed by the petitioner with a prayer to quash the F.I.R. in case crime No. 263 of 2015 under Section 3(1) of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, P.S. Nawabganj, district Kanpur Nagar. Learned counsel for the petitioner has submitted that the petitioner has been booked under Section 3(1) of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, on account of his involvement in only one case namely Case Crime No. 115 of 2015, under Section 3/4 of the Public Gambling Act, P.S. Nawabganj, District Kanpur Nagar, and there being no allegation in the FIR relating to any act or omission on the part of the petitioner covered by the definition of gang or gangster as has been defined in the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, the same is liable to be quashed. In support of his contention he has placed reliance on a Division Bench decision of this Court in Vijay Kumar Pathak v. State of U.P., 2010(71) ACC 864. The submissions made by learned counsel for the petitioners, prima facie, appears to have some substance. The matter requires consideration after receiving response. Learned A.G.A has accepted notice on behalf of respondent Nos. 1 and 2. He prays for and is allowed four weeks’ time to file counter-affidavit. Issue notice to opposite party No. 3, who may also file counter-affidavit within the same period. Rejoinder-affidavit may be filed within two weeks thereafter. List this matter immediately after expiry of six weeks before the appropriate Court. 1 and 2. He prays for and is allowed four weeks’ time to file counter-affidavit. Issue notice to opposite party No. 3, who may also file counter-affidavit within the same period. Rejoinder-affidavit may be filed within two weeks thereafter. List this matter immediately after expiry of six weeks before the appropriate Court. Till the next date of listing or till the submission of police report under Section 173(2) Cr.P.C, whichever is later, the petitioners shall not be arrested pursuant to impugned FIR dated 2015 registered as Case Crime No. 263 of 2015 under Section 3(1) of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, P.S. Nawabganj, district Kanpur Nagar.” 4. He has then invited the attention of the Court to the Division Bench judgment in the case of Vijay Kumar Pathak v. State of U.P. and others, 2010(71) ACC 864, to substantiate his submissions. The contention in short appears to be that the FIR in the Gangster Act itself was not maintainable, inasmuch as, the offence of gambling even though not repeated several times could not be made subject-matter for prosecuting the petitioner under the 1986 Act. 5. On the other hand Sri Ali Murtaza, learned AGA has invited the attention of the judgment of another division Bench dated 18.4.2015 in the case of Satyavir and 2 others v. State of U.P. and 3 others, passed in Crl. Misc. Writ Petition No. 8724 of 2015 to contend that the judgment in the case of Vijay Kumar Pathak (Supra) does not notice the correct status of the Gambling Act as contained in the schedule of the offences as defined under Section 2(b) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. He therefore submits that in view of the said final division Bench judgment dated 18.4.2015, which has also considered the earlier division Bench judgment in the case of Vijay Kumar Pathak (Supra), the interim order extracted herinabove in the case of co-accused should not be treated as a binding precedent or as an order of parity for the benefit of the petitioner. 6. 6. We have considered the submissions raised and we find that the division Bench judgment in the case of Satyavir (Supra) is a final judgment, which also takes into consideration the provisions of Section 3 of the Gambling Act referred to as one of the scheduled offences under Section 2 (b)(iv) of the Gangsters Act. 7. The said division Bench judgment therefore is binding on us as it is of a cordinate Bench and it also reflects the correct position of law.The judgment in the case of Vijay Kumar Pathak (Supra) even though of a previous coordinate division Bench does not appear to have correctly noticed the abovmentioned provisions, particularly Section 2(b)(iv) of the Gangsters Act, 1986, nor does the same appear to have been pointed out or noticed in the interim order dated 11.8.2015. Satyavir’s judgment (Supra) is also a complete answer to the argument of the learned counsel on the issue of only one case in the gang chart or absence of repetition of the same offence, where it has been pointed out that singular includes plural relying on another division Bench decision in the case of Rinku @ Hukkuu v. State of U.P. and another, 2001 (4) ACC 614. Consequently, the interim order dated 11.8.2015 cannot be adhered to in view of the aforesaid binding precedent placed before us. 8. The petitioner therefore cannot get any benefit of the said interim order relied upon and as scuh we are not inclined to interfere with the impugned FIR or quash the same. It is open to the petitioner to seek his remedy by way of bail. 9. Rejected with the said observations.