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2023 DIGILAW 1870 (ALL)

Usman v. State of U. P.

2023-08-04

ARUN KUMAR SINGH DESHWAL, VIVEK KUMAR BIRLA

body2023
JUDGMENT : 1. Heard Sri Meraj Ahmad Khan, learned counsel for the petitioners as well as Sri G.P. Singh, learned A.G.A. for the State respondents. 2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 14.9.2022 registered as Case Crime No. 442 of 2022, under Sections 147, 341, 352, 332, 504, 353, 384, 395 IPC and Section 21 (4) of Mines and Minerals Act and Section 3 Prevention of Damage to Public Property Act and Section 3 (1) of UP Gangster and Anti Social Activities (Prevention Act), 1986, PS Thakurdwara, District Moradabad, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report. 3. Learned counsel for the petitioners by referring to Rule 5 (3)(c), Rule 8 and Rule 10 of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as the 'Rules, 2021), submitted that gang-chart shall not be approved without completion of the investigation of the base case. In the present case, it is submitted that investigation in the base FIR is going on and during currency of investigation, provisions of Gangster Act have been imposed. Submission is that this could not have been done and is impermissible in law in view of the Rule 5(3)(c), Rule 8 and Rule 10 of the Rules, 2021 framed under the provisions of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the 'Act, 1986'). Apart from highlighting the aforesaid provisions, it is submitted that Rule 8 prohibits stating unconfirmed and false information and Rule 10 provides that along with gang chart, the certified copy of the charge-sheet and recovery memo shall be attached compulsorily, which is not so in the present case as investigation in the base case is pending. He has placed reliance on a judgment of this Court rendered in the case of Ankit Sharma @ Ankit Kumar vs. State of U.P. and Others, 2023 (1) All. Crl. Ruling 36. 4. Learned AGA opposed the petition and submits that Gangster Act can be imposed during course of investigation, falling in category of cases mentioned in Rule 22 (2) of Rules, 2021. 5. Learned AGA submits that gang-chart has already been approved in the present case. 6. Crl. Ruling 36. 4. Learned AGA opposed the petition and submits that Gangster Act can be imposed during course of investigation, falling in category of cases mentioned in Rule 22 (2) of Rules, 2021. 5. Learned AGA submits that gang-chart has already been approved in the present case. 6. Before proceeding further, it would be appropriate to take note of Rule 5 (3)(c), Rules 8, 10 and 22 of the Rules, 2021, which is quoted as under: “5. General Rules: (1)..... (3)...... (c) The gang-chart shall not mention those cases in which acquittal has been granted by the Special Court or in which the final report has been filed after the investigation. However, the gang-chart shall not be approved without the completion of investigation of the base case. 8. Stating unconfirmed or false information is prohibited: (1) The Incharge of Police Station/Station House Officer/Inspector shall not mention the cases as Part Trial or Partial Trial (PT) without ascertaining the up-to-date status of the cases in the gang-chart. (2) No unconfirmed or false information shall be entered in the gang-chart. (3) The latest status of the cases against the gang, which are being shown in the gang-chart, regarding their pendency in the Special Court, the convictions or the stage at which they are in the Court, must be clearly mentioned. (4) The responsibility of recording the correct and true information shall lie on the concerned Incharge of Police Station/Station House Officer/Inspector. (5) On discovering an adverse situation, the Incharge of Police Station/Station House Officer/Inspector shall be held liable for negligence under departmental and criminal proceedings. 10. Records of Base Cases: (1) Along with gang chart, the certified copy of the charge-sheet and recovery memo shall be attached compulsorily. 22. Criminal history not mandatory and sections of the Act can be imposed in the course of investigation: (1) A single act/omission will also constitute an offence under the Act, and First Information Report may be registered on the basis of a single case i.e., it is not mandatory that any criminal history must be recorded and alleged before registering an offence under the Act. (2) The Act may also come into force on a single prosecution in certain class of cases, such as - if it appears that the gang has committed a single offence mentioned in Sections 302, 376D, 395, 396 or 397 of the Penal Code out of the offences mentioned in sub-clause (i) of clause (b) of Section 2 of the Act or sub-clauses (ii), (iii), (v), (vii), (x), (xii), (xiv), (xv), (xvii), (xviii), (xix), (xx) or (xxi) of clause (b) of Section 2 of the Act, which is presently under investigation, and the offence under this Act is being proved by collected evidence, then along with the criminal act under consideration, the gang-chart should also be approved by the concerned Commissioner of Police/District Magistrate involved in the investigation of the said offence and the provisions of the Act can be imposed while investigating both the offences together in accordance with the provisions of the Act. Further, the charge-sheet can be sent to the Special Court constituted under the Act.” 7. Learned AGA pointed out that Section 395 IPC has been added during investigation and therefore, provisions of Section 3 (1) of the Act, 1986 have been invoked against the petitioner, which can be done in the present case. 8. We find that an exception has been carved out in Rule 22 of the Rules, 2021 wherein a single act/omission will also constitute an offence under the Act and first information report can be registered on the basis of a single case i.e., it is not mandatory that any criminal history must be recorded and alleged before registering an offence under the Act. Sub-Rule 2 of Rule 22 clearly provides that the Act may also come into force on a single prosecution in certain class of cases, which clearly provides various Sections including Section 395 IPC (which is relevant herein) which is presently under investigation and the offence under this Act is being proved by the collected evidence, then along with the criminal act under consideration, the gang-chart shall be approved by the concerned Commissioner of Police/District Magistrate involved in the investigation of the said offence and the provisions of the Act can be imposed while investigating both the offences together in accordance with the provisions of the Act. Further, the charge-sheet can be sent to the Special Court constituted under the Act. 9. Further, the charge-sheet can be sent to the Special Court constituted under the Act. 9. We find that heading of Rule 22 itself provides that criminal history is not mandatory and sections of the Gangster Act can be imposed in the course of investigation of any base case, falls under category of certain offences. 10. We further find that the judgment in Ankit Sharma (supra) relied on by the learned counsel for the petitioner is of no help as there is no consideration of Rule 22 of the Rules, 2021, which clearly carves out an exception to the other Rules by providing that provisions of Gangster Act can be imposed during course of investigation in a case where investigation is going on in respect of various Sections of IPC as referred to in Sub-Rule 2 of Rule 22 of Rules, 2021, which is presently under investigation and wherein on the basis of collected evidence it is proved that an offence under the Gangster Act has also been made out and the gang-chart shall be approved and both the offences can be investigated in accordance with the provisions of the Gangster Act, 1986. 11. In such view of the matter, we find no force in the arguments of learned counsel for the petitioner. 12. Present petition as well as connected petition are devoid of merit and are accordingly dismissed.