Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1642 (ALL)

Mohd. Arif @ Guddu v. State Of Uttar Pradesh

2024-07-09

ARUN KUMAR SINGH DESHWAL, VIVEK KUMAR BIRLA

body2024
JUDGMENT : 1. Supplementary affidavit filed today is taken on record. 2. Heard learned counsel for the petitioner and learned A.G.A. for the State. 3. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 01.05.2024, registered as Case Crime No.100 of 2024, under Sections 3(1) of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as 'Gangsters Act'), P.S. Khetasarai, District-Jaunpur and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report. 4. The contention of learned counsel for the petitioners is that while recommending and approving the gang chart of the FIR in question, no satisfaction was recorded by the competent authorities as the competent authority has signed pre-typed satisfaction which is against the law laid down by the Division Bench of this Court in Sanni Mishra @ Sanjayan Kumar Mishra vs. State of Uttar Pradesh and others reported in 2024 (1) ADJ 231 (DB). It is further submitted by learned counsel for the petitioner that the impugned FIR is itself illegal as same was registered u/s 3(1) of the Gangsters Act without mentioning the corresponding provision in which the petitioner was named as Gangster which is also against the law laid down by the Division Bench of this court in Asim @ Hassim vs. State of Uttar Pradesh and another reported in 2024 (1) ADJ 125 (DB). 5. Learned A.G.A. could not dispute the aforesaid fact. 6. After hearing learned counsel for the parties and on perusal of the record, it is clear that the gang chart, prepared before lodging the impugned F.I.R., was recommended and approved by the competent authorities by simply signing a pre-typed proforma regarding their satisfaction. This Court in the case of Sanni Mishra (supra) has observed that signing pre-typed satisfaction amounts to violation of Rule 17(2) of the Uttar Pradesh Gangster and Anti Social Activities (Prevention) Rules, 2021 (hereinafter referred to as 'Rules, 2021') and non application of mind on the part of the competent authorities. Paragraphs No. 16, 17, 18 and 19 of Sanni Mishra (supra) case is quoted as under:- "16. Rule 17 of the Gangster Rules, 2021 further provides that competent authorities, before forwarding the gang-chart must apply an independent mind to the information mentioned in the gang-chart as well as evidence annexed therewith. Paragraphs No. 16, 17, 18 and 19 of Sanni Mishra (supra) case is quoted as under:- "16. Rule 17 of the Gangster Rules, 2021 further provides that competent authorities, before forwarding the gang-chart must apply an independent mind to the information mentioned in the gang-chart as well as evidence annexed therewith. Rule 17(2) of the Gangster Rules, 2021 further provides that pre-printed rubber seal gang-chart should not be signed by the competent authorities because the same shall amount to not exercising independent mind. Rule 17 of the Gangster Rules, 2021 is being quoted as under: "17. Use of independent mind.-(1) The competent authority shall be bound to exercise its own independent mind while forwarding the gang-chart. (2) A pre-printed rubber seal gang-chart should not be signed by the competent authority; otherwise the same shall tantamount to the fact that the competent authority has not exercised its free mind." 17. The purpose of prohibiting the signing of pre-printed rubber seal under Rule 17(2) of the Gangster Rules, 2021 is to bind the competent authorities to apply independent mind by mentioning their satisfaction in clear words. Therefore, signing the pre-typed satisfaction will also be prohibited under Rule 17(2) of the Gangster Rules, 2021. 18. In the present case, all the competent authorities simply signed just below the printed proforma regarding their satisfaction. Therefore, it clearly violates Rule 17 of the Gangster Rules, 2021. 19. This court is also of the view that while forwarding and approving the gang-chart, it is the duty of the competent authorities to see whether gang-chart has been prepared as per the Gangster Rules, 2021 and all the formalities as required by the Gangster Rules, 2021 have been fulfilled. If from the record, it appears that competent authorities forwarded or approved the gang-chart without looking into the facts that the gang-chart was itself not prepared as per the Gangster Rules, 2021, then this fact will itself amount to non-application of independent mind on the part of competent authority." 7. From the perusal of the impugned F.I.R. it also appears that this F.I.R. was lodged under Section 3(1) of the Gangsters Act, without mentioning the corresponding provision of the Gangsters Act for anti social activities in which the accused was involved and on the basis of which he was named as a gangster. From the perusal of the impugned F.I.R. it also appears that this F.I.R. was lodged under Section 3(1) of the Gangsters Act, without mentioning the corresponding provision of the Gangsters Act for anti social activities in which the accused was involved and on the basis of which he was named as a gangster. This issue was considered by the Division Bench of this Court in Asim @ Hassim (supra) case. In that case the Court quashed the F.I.R. on the ground that corresponding provision in which the accused was named as gangster. The relevant provision of Section-2(b) of the Gangsters Act is required to be mentioned because a person cannot be punished without specifying the offence committed by him which would justify his classification as a gangster. Paragraphs No. 5, 6, 7 and 9 of the Asim @ Hassim (supra) case are quoted as under:- "5. From the provisions, quoted as above as well as from the perusal of other provisions of Gangsters Act, it is clear that a person can be prosecuted under Section 3 of Gangsters Act only after he falls under the definition of "gangster" being part of the gang which is involved in anti social activities as mentioned in Section 2(b)(i) to (xxv) of the Act. The purpose of making special provisions of Gangsters Act for dealing with gangsters and for preventing their anti social activities. The provision of this Act are stringent and are therefore required to be interpreted strictly so as to prevent their misuse on the part of State authorities. 6. Hon'ble Supreme Court, in the case of Gulam Mustafa vs. State of Karnataka; 2023 SCC OnLine SC 603, observed in paragraph-38 as under:- "38. This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty-bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position." 7. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position." 7. With regard to enactments which have a stringent provisions of law, which effecting personal liberty under Article-21 of the Constitution of India, Hon'ble Apex Court in the case of Icchu Devi Choraria vs. Union of India and others; (1980) 4 SCC 531 has observed about personal liberty as under:- "Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law." 9. In the present case, the impugned F.I.R. was registered u/s 3(1) Gangsters Act, without mentioning the corresponding provision, mentioning the anti social activities in which the accused is involved and on the basis of which he was named as gangster. A person cannot be punished without specifying the offence committed by him which would justify his classification as a Gangster. " 8. Pursuant to the judgement of this court in Sanni Mishra (supra) and Asim @ Hassim (supra), the Director General of Police has issued a circular dated 19.01.2024 for compliance of the direction issued by this court. Subsequently, the Government has also issued circular dated 21.01.2024 for compliance of the direction issued by this court. 9. The circular dated 19.01.2024 issued by D.G.P., Uttar Pradesh is being quoted as under: a-Under Rule 5(3)a there must be a joint meeting of the District Magistrate/ Commissioner of Police with the District Police Chief. b-Under Rule 8(3) the Status of each case on the date of the approval of the Gang chart should be strictly mentioned. c-According to Rules the Addl. Superintendent of Police (Nodal Officer) must record his satisfaction in clear words as required under Rule16(1) of the Rules. b-Under Rule 8(3) the Status of each case on the date of the approval of the Gang chart should be strictly mentioned. c-According to Rules the Addl. Superintendent of Police (Nodal Officer) must record his satisfaction in clear words as required under Rule16(1) of the Rules. d-Under Rule 16(2) Senior Superintendent of Police/ Superintendent of Police after going through the recommendation of the Addl. Superintendent of Police under Rule 16(1) shall record his satisfaction for approving the same and will forward the same to the District Magistrate or the Commissioner of Police. e-Under Rule 17(2) clearly prohibits the use of the pre-printed rubber stamp for all gang chart for its approval as such, the satisfaction etc. should be seen after recorded due application of mind; and as such, the signature of the concerned authority on the printed form elearly shows of non application of mind. f-According to Rule 20(3) before submitting the charge sheet before the concerned special court the Addl. Superintendent of Police shall obtained the opinion from the concerned prosecuting officer in order to ascertain that there is no illegality/irregularity either in conducting of the investigation or with regard to outcome of the document collected during course of investigation and after that approval the Addl. Superintendent of Police shall forward the same to Senior Superintendent of Police or Superintendent of Police for its approval as required under Rule20(4). g-Under Rule 26(1) the Commissioner of Police/Senior Superintendent of Police/Superintendent of Police as the case may be, will peruse the entire record whenever the aforesaid Charge sheet is forwarded before him for the grant of the approval as required under Rule20. h-Rule 5, the gang-chart which is prepared prosecuting the gang member shall only contained the number of the cases which are considered for invoking the provision but excluding the cases on the basis of which earlier any proceeding under the Gangster Act was initiated. However, the list of the aforesaid cases shall be annexed along with the gang chart as provided under Rule 5D in form prescribed under the Rule. 25. At last, this court feels it appropriate to express its displeasure about the manner of preparing the gang-charts in Gangster Act, 1986. This court finds in number of cases that the police authorities as well as District Magistrate forwarded/ approved the gang-chart without application of mind and contrary to Rules, 2021. 25. At last, this court feels it appropriate to express its displeasure about the manner of preparing the gang-charts in Gangster Act, 1986. This court finds in number of cases that the police authorities as well as District Magistrate forwarded/ approved the gang-chart without application of mind and contrary to Rules, 2021. This negligence on the part of police officials as well as of District Magistrate on the one hand fails to protect the innocent person and on the other hand, hardcore criminals and gangsters get benefit of such technical lacuna in Court. 26. Therefore, the Chief Secretary of Uttar Pradesh is directed to issue necessary guidelines to all the District Magistrate/Commissioner of Police/SSP/SP Additional St" regarding the preparation, forwarding and approval of the gangchart in accordance with the Gangster Rules, 2021 in light of observations made above. 10. For ready reference, circular issued by Chief Secretary, Uttar Pradesh is also being quoted as under: 11. It is very surprising that Nodal Officer as well as Superintendent of Police, Jaunpur has prepared and recommended the gang chart in the month of March, 2024 by signing the pre-typed satisfaction and District Magistrate-Jaunpur, has approved the same on 30.04.2024 again by signing the pre-typed satisfaction despite issuance of circular dated 19.01.2024 by the Director General of Police, Uttar Pradesh and also the circular dated 21.01.2024 by the Chief Secretary, Government of Uttar Pradesh regarding compliance of the direction issued in Sanni Mishra (supra) and Asim @ Hassim (supra) case for recommending and approving the gang chart. This fact shows the sheer negligence on the part of these officers. 12. Therefore, this court is of the view that Chief Secretary, Uttar Pradesh as well as Additional Chief Secretary (Home), Uttar Pradesh should look into this matter and take appropriate action. 13. From the above analysis, it is clear that not only the gang chart of the impugned F.I.R. itself is prepared contrary to the Rules, 2021 but the impugned F.I.R. is also illegal, being contrary to the provisions of the Gangsters Act. Therefore, the gang chart as well as the impugned F.I.R. are liable to be quashed. 14. As this Court is entertaining the present petition only on the technical ground, therefore, instead of keeping the petition pending, the petition is being finally disposed of by quashing the impugned F.I.R. as well as gang chart. 15. Accordingly, the writ petition is allowed. Therefore, the gang chart as well as the impugned F.I.R. are liable to be quashed. 14. As this Court is entertaining the present petition only on the technical ground, therefore, instead of keeping the petition pending, the petition is being finally disposed of by quashing the impugned F.I.R. as well as gang chart. 15. Accordingly, the writ petition is allowed. The impugned F.I.R. dated 01.05.2024 as well as the gang chart dated 30.04.2024 are hereby quashed. 16. However, the authority concerned is at liberty to lodge fresh F.I.R. after preparing the gang chart of the impugned F.I.R. as per the Rules, 2021 as well as in view of the direction issued by the Division Bench of this Court in Sanni Mishra (supra) and Asim @ Hassim (supra). 17. Registrar (Compliance) is directed to send a copy of this order to Chief Secretary, Uttar Pradesh as well as Additional Chief Secretary (Home) U.P., for information and necessary compliance.