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2019 DIGILAW 609 (ALL)

Shaukin v. State Of U. P.

2019-03-06

NAHEED ARA MOONIS, VIRENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Heard learned counsel for the applicant and learned AGA appearing on behalf of State & perused the record. The instant writ petition has been filed on behalf of the petitioner with a prayer to quash the first information report dated 27.9.2018 lodged against him by the respondent no.2 vide Case Crime No. of 201 under sections 3(1) U.P. Gangsters & Anti-social Activities (Prevention) Act 1986, Police Station , District Shamli during the pendency of trial. It is submitted by the learned counsel for the petitioner that a case was registered under section 3/4 Public Gambling Act 1986 on 18.8.2018 vide Case Crime No. 478 of 2018 against nine persons inclusive of the petitioner. In the said first information report it has been divulged that in the house of co-accused Abid, the petitioner and accused persons were indulged in gambling activities. Against co-accused Abid two more cases were registered on the same day vide Case crime No. 479 of 2018 under sections 3/25 Arms Act and Case Crime No. 480 of 2018 under sections 30 Arms Act respectively. In both the cases, petitioner was neither named nor arraigned as an accused. The petitioner moved an application in the aforesaid case and was granted bail by the court below vide order dated 20.8.2018. The respondent authorities could not digest the liberation of the petitioner and lodged the first information report dated 27.9.2018 under section 2/3 U.P. Gangsters & Anti-social Activities (Prevention) Act 1986 against the petitioner and eight others contending that they had committed offence under section 2/3 of the Public Gambling Act. The offence under the Gambling Act has been included and defined under section 2 (vi) of the Gangsters Act which covers only the offence under section 3 of the Public Gambling Act and not any offence under section 4 of the Public Gambling Act and therefore, the petitioner cannot be held liable to any prosecution under the Gangsters Act. Section 3 of Public Gambling Act pertains who is owning, keeping and having charge of the gambling house and according to the FIR, the co-accused Abid is the owner of the gambling house from where the petitioner and other persons were arrested as such the petitioner does not fall within the ambit of Gangsters Act. A person is not liable to be punished under the Gangsters Act merely because he happens to be a member of a group. A person is not liable to be punished under the Gangsters Act merely because he happens to be a member of a group. He comes within the clutches of the Act only if he chooses to join a group which indulges in anti-social activities defined under the Act with use of force for gaining material advantage to himself or any other person. No element of actus reus is clearly present in the offence alleged to have been committed by the petitioner. Learned counsel for the petitioner has drawn attention to section 2 of the Gangsters Act which defines as under : 2. No element of actus reus is clearly present in the offence alleged to have been committed by the petitioner. Learned counsel for the petitioner has drawn attention to section 2 of the Gangsters Act which defines as under : 2. Definitions.- In this Act,-- (a) "Code" means the Code of Criminal Procedure, 1973 (Act No. 2 of 1974); (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 for himself or any other person, indulge in antisocial activities, namely: (i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or (ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U. P. Excise Act, 1910 (U. P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or (iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or (iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or (v) offences punishable under the Suppression of *[Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956)], or (vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or (vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or (viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or (ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or (x) inciting others to resort to violence to disturb communal harmony, or (xi) creating panic, alarm or terror in public, or (xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or (xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or (xiv) kidnapping or abducting any person with intent to extort ransom, or (xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course ; (c) "gangster" means a member or leader or organiser 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 ; (d) "public servant" means a public servant as defined in Section 21 of the Indian Penal Code (Act No. 45 of 1860), or any other law for the time being in force, and includes any person who lawfully assist the police or other authorities of the State, in investigation or prosecution or punishment of an offence punishable under this Act, whether by giving information or evidence relating to such offence or offender or in any other manner; (e) "member of the family of a public servant" means his parents or spouse and brother, sister, son, daughter, grandson, grand-daughter or the spouses of any of them, and includes a person dependent on or residing with the public servant and a person in whose welfare the public servant is interested ; (f) words and phrases used but not defined in this Act and defined in the Code of Criminal Procedure, 1973, or the Indian Penal Code shall have the meanings respectively assigned to them in such Codes. From the bare perusal of above, it is evident that the persons forming group may be said to be a gang if they by use of violence, threat, show of violence, intimidation, coercion or otherwise with the object of disturbing public order or if unlawfully gaining temporal, pecuniary, material or other advantages either for himself or for any other person indulged in any of the anti-social activity enumerated under sub-clause (i) to (xv) of clause (b) and those persons indulging in aforesaid activities as member, leader, organizer of the gang may be treated as gangster and may be liable for punishment under Section of the Act hence the impugned FIR is liable to be quashed. Per contra learned AGA contended that the petitioner and other accused persons are involved in the gambling activities in the house of co-accused Abid, hence the role of the petitioner cannot be segregated at this stage declaring him absolved from being prosecuted in the illegal activities of Gangsters Act. The anti-social activities are on the increase in the State posing threat to lives and properties of the citizens. The existing statute under the Public Gambling Act was not found effective enough to cope with this new menace hence with a view to break the gangs by punishing the gangsters and to nip in the bud their conspiratoral designs it was considered necessary to make special provisions for the prevention of coping with gangsters and anti-social activities in the State. The investigation is still going on as such the F.I.R. cannot be aborted at this stage. We have considered the rival submissions advanced by the learned counsel for the petitioner and the learned AGA. The pivotal point for consideration in the instant petition is whether prosecution under section 3/4 of Public Gambling Act comes within the domain of section 3 of Gangsters Act. For that purpose, it is compatible and congruous to elucidate section 3/4 of the Public Gambling Act 1986. 3. The pivotal point for consideration in the instant petition is whether prosecution under section 3/4 of Public Gambling Act comes within the domain of section 3 of Gangsters Act. For that purpose, it is compatible and congruous to elucidate section 3/4 of the Public Gambling Act 1986. 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 wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; 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 gaming, 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. From the aforesaid discussion, it emerges out that section 3 of the Public Gambling Act defines with regard to owner or occupier or having the use of any house as a common gaming house and section 4 defines that whoever is found in any such house, walled enclosure, room or place playing or gaming with cards. From the aforesaid discussion, it emerges out that section 3 of the Public Gambling Act defines with regard to owner or occupier or having the use of any house as a common gaming house and section 4 defines that whoever is found in any such house, walled enclosure, room or place playing or gaming with cards. 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, they will indulge in anti-social activities. 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 his associates there is only one case under the Public Gambling Act and the charge sheet has also been submitted. There is no other case against any of the accused persons except Abid. The petitioner had moved an application in the aforesaid case and has been released on bail vide order dated 20.8.2018. On weighing the entire facts and the scenerio of the case, it transpires that section 3/4 of the Public Gambling Act will have to be read in conjunction and not in isolation. It cannot be said that the petitioner was only found in the house of the accused as such only section 4 of the Public Gambling Act would apply which does not come within the purview of section 2 (b) (vi) of Gangsters Act. When the petitioner is indulged in illegal activities, his role cannot be deciphered with co-accused Abid that Abid alone is liable to be prosecuted under the Gangsters Act. when any person abets or assists in the illegal activities, he certainly comes within the clause (c) of the section 2 of Gangsters Act as the place is being used as common gaming house. The investigation has already been carried out under the Public Gambling Act and the charge sheet has also been submitted under section 3/4 Public Gambling Act. when any person abets or assists in the illegal activities, he certainly comes within the clause (c) of the section 2 of Gangsters Act as the place is being used as common gaming house. The investigation has already been carried out under the Public Gambling Act and the charge sheet has also been submitted under section 3/4 Public Gambling Act. The allegations made in the impugned F.I.R. prima facie discloses the offence punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, the offence is cognizable and there is no legal bar in lodging the impugned F.I.R., therefore, there is no ground to interfere in the impugned F.I.R., the prayer for quashing the impugned FIR dated 27.9.2018 vide Case Crime No. 564 of 2018 under sections 2/3 U.P. Gangsters & Anti-social Activities (Prevention) Act 1986, Police Station Kairana, District Shamli is refused. In the result the writ petition fails and is accordingly dismissed. However, it is provided that in case the petitioner appears/surrenders before the court below within 45 days from today. The court below shall consider and decide his bail application strictly in accordance with the provisions of U.P.Gangsters & Anti-social Activities (Prevention) Act.