Rajesh Aggarwal alias Rakesh Aggarwal v. State of Uttarakhand
2023-08-14
RAVINDRA MAITHANI
body2023
DigiLaw.ai
JUDGMENT : Ravindra Maithani, J. The challenge in this petition is made to FIR No.315 of 2023, dated 27.07.2023, under Sections 2 and 3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (“the Act”), Police Station Raipur, District Dehradun. 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, the petitioner and the co-accused are forging documents and they in the business of sale and purchase of property. They are illegally gaining pecuniary benefits. Due to their acts, there is a fear in the masses. They are also extending threats to the people in general. 4. Learned counsel for the petitioner would submit that the offence under the provisions of the Act is not made out; the earlier FIR, based on which instant case has been lodged does not speak of any ingredients of threat, violence, etc.; they were simple cases of cheating, in which, FIR was, in fact, much delayed and they are still pending investigation. 5. Learned counsel for the petitioner would submit that mere version of FIR could not be sufficient for holding that a case is made out because if FIR is designed with any ill motive it may be drafted in a manner so as to contain every averment. She would refer to the judgment in the case of Mohammad Wajid and another vs. State of U.P. and others, Criminal Appeal No.2340 of 2023 (Arising out of S.L.P. (Criminal) No.10656 of 2022), MANU/SC/0846/2023, in which, in para 30, the Hon’ble Court has observed that as and when the court is required to quash an FIR on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. Because in such cases the complainant could ensure that the FIR/complaint is very well drafted with all the necessary pleadings. He would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. The Court observed, “therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not.
The Court observed, “therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines.” 6. Learned State counsel on the other hand would submit that the FIR constitutes offence. The petitioner has been involved in many cases in the past. In one of such cases, charge-sheet has already been filed. They are gaining undue peculiarly advantages. 7. The word “gang” has been defined under Section 2(b) of the Act, which 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 anti-social activities. This clause 2(b) of the Act includes the offences, in which, earlier FIR was lodged against the petitioner. The word “gangster” is defined under Section 2(c) of the Act, which is as under:- 2(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; 8. According to the FIR, the petitioner as a gang has been cheating the people to take undue pecuniary advantage and they have created, threatened and extended sense of fear in the masses. 9. At this stage, when the petitioner seeks quashing of FIR, this Court cannot go beyond the material that is available, which is the earlier FIR as well as the FIR in the instant case. In the matters like instant one the Court may go deeper into the analyses of facts to a limited extent to ascertain as to whether in totality, any offence, as such is made out. Number of cases or result of past cases per se are not factors for proceedings under the provisions of the Act.
In the matters like instant one the Court may go deeper into the analyses of facts to a limited extent to ascertain as to whether in totality, any offence, as such is made out. Number of cases or result of past cases per se are not factors for proceedings under the provisions of the Act. In the case of Shraddha Gupta vs. State of Uttar Pradesh and others, 2022 SCC OnLine SC 514, the Hon’ble Supreme Court has observed that even a single crime is sufficient to invoke the provisions of the Act. 10. The Hon’ble Allahabad High Court in the case of State of U.P. vs. Mukhtar Ansari 2022 SCC OnLine All 657 observed that if the prosecution proves that the person belongs to a gang and indulges himself in committing offence with object of disturbing public order or of gaining any undue temporal and pecuniary material or other advantage for himself or any other person, he may be punished under the Gangsters Act. Those were the observations which were made at the time when the final finding was to be recorded about the guilt of an offence. 11. In the case of Ashok Kumar Dixit vs. State of U.P. and another, AIR 1987 All 235 , in para 73 of the judgment the Hon’ble Court had adverted to the factors necessary for prima facie application of the Act and observed that for booking a person under the provisions of the Act a prima facie satisfaction of the authorities is sufficient. The Court observed as hereunder:- “73. In this behalf, provisions of the Act themselves provide intrinsic guidelines. If we advert to Section 2(b) of the Act, which defines the term ‘gangster’ we would find significant words. They are “acting”, ‘singly or collectively’, ‘violence or show of violence’, ‘intimidation’, ‘coercion’, or ‘unlawful means’. Thus, for booking a person under the provisions of the Act, the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place.
The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.” 12. In the instant case, the FIR categorically records that the petitioner is indulging in illegal activities of gaining undue pecuniary gain by committing forgery and cheating. They have extending threat and sense of fear in the masses. The FIR definitely discloses commission of offence. There is no merit in the instant case. Accordingly, the petition deserves to be dismissed at the stage of admission itself. 13. The petition is dismissed in limine.