# 260 INDIAN LAW REPORTS ALLAHABAD SERIES Ramesh Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 1 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-17
- **Case number:** Application u/s 482 No. 358 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/260-indian-law-reports-allahabad-series-ramesh-kumar-v-state-of-u-p-anr-opp-51136
- **Pages:** 5

## Headnote

Criminal Law - U.P.Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section-3(1) - Upon perusal of record and
relevant case law, it is evident that once all
criminal cases cited in gang chart stand quashed
/ set aside on basis of compromise between the
parties by Court, thus foundation of proceedings
under Gangsters Act fails, and therefore such
criminal proceedings cannot survive on the basis
of maxim "Sublato fundamento, cadit opus." -
Thus, impugned order, quashed. (Para 9, 10)

Application allowed. (E-13)

List of Cases cited:

## Text

1 All. Ramesh Kumar Vs.State of U.P. & Anr.
259
and/or the High Court was considering the
applications against the judgment and
order passed by the learned Trial Court on
conclusion of trial. As per the cardinal
principle of law, at the stage of discharge
and/or
quashing
of
the
criminal
proceedings, while exercising the powers
under Section482Cr. P.C., the Court is not
required to conduct the mini trial. The High
Court in the common impugned judgment
and order has observed that the charges
against the accused are not proved. This is
not
the
stage
where
the
prosecution/investigating
agency
is/are
required to prove the charges. The charges
are required to be proved during the trial
on the basis of the evidence led by the
prosecution/investigating
agency.
Therefore, the High Court has materially
erred in going in detail in the allegations
and the material collected during the
course of the investigation against the
accused, at this stage. At the stage of
discharge and/or while exercising the
powers under Section482Cr. P.C., the Court
has a very limited jurisdiction and is
required
to
consider
"whether
any
sufficient material is available to proceed
further against the accused for which the
accused is required to be tried or not".

12. In Aryan Singh (Supra), the
High Court had also recorded that the
initiation
of
the
criminal
proceedings/proceedings was malicious.
The Hon'ble Supreme Court held that: -

"the High Court has erred in
observing at this stage that the initiation of
the criminal proceedings/proceedings is
malicious.
Whether
the
criminal
proceedings was/were malicious or not, is
not required to be considered at this stage.
The same is required to be considered at
the conclusion of the trial. In any case, at
this stage, what is required to be
considered is a prima facie case and the
material collected during the course of the
investigation, which warranted the accused
to be tried."

13. In the present case, when there is prima
facie material to establish the allegations
and a care is made out for trial of the
accused persons, the proceedings cannot be
quashed holding the same to have been
instituted maliciously. The property dispute
between the parties can be a cause for false
implication of the applicants but at the
same time it can also be a motive for
commission of the offence. When the
informant and his daughter-in-law have
suffered injuries in the incident and they
have supported the FIR allegations by their
statements, which is also supported by the
medico legal examination report and the
statement of an independent witness, there
is sufficient evidence for prosecution of the
applicants and it cannot be said at this stage
that the proceedings are liable to be
quashed for the reason that the same have
been maliciously instituted. Whether the
proceedings
have
been
instituted
maliciously, is a question that can only be
decided after the parties adduce evidence in
support of their respective cases.

14. In view of the foregoing
discussion, the application lacks merit and
the same is dismissed.
----------
(2024) 1 ILRA 259
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 358 of 2024
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Bhola Singh Patel, Beant Singh, Vivek Kumar
Verma

Counsel for the Opp. Parties:
G.A.

Criminal Law - U.P.Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section-3(1) - Upon perusal of record and
relevant case law, it is evident that once all
criminal cases cited in gang chart stand quashed
/ set aside on basis of compromise between the
parties by Court, thus foundation of proceedings
under Gangsters Act fails, and therefore such
criminal proceedings cannot survive on the basis
of maxim "Sublato fundamento, cadit opus." -
Thus, impugned order, quashed. (Para 9, 10)

Application allowed. (E-13)

List of Cases cited:

1. Salim Vs St. of U.P., (Allahabad) : 2019(12)
ILR (Allahabad) 133, (Paras 7 to 10, 13)

2. Sartaj Vs St. of U.P. : 2020(111) ACrC 51 :
2020(1) ILR (Allahabad) 1659

3. Jai Prakash & ors. Vs St. of U.P., Criminal
Revision No. 3309 of 2008, judgment dated
12.3.2019

(Delivered by Hon'ble Hon'ble Rajesh
Singh Chauhan, J.)

1. Heard Sri Vivek Kumar Verma,
learned counsel for the petitioner and Sri
Ram Raj Singh, learned AGA for State.

2. By means of this petition the
petitioner has prayed following relief :

"Wherefore, it is most respectfully
prayed that this Hon'ble High Court may
kindly be pleased to quash the impugned
order dated 17.01.2023, passed by the
Special Judge, Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
Additional Session Judge, Court No.-08.
Barabanki
in
Gangster
Case
No.
2009/2021, State Vs Ramesh Kumar &
others,
arising
out
case
crime
no.
215/2020,
under
section-3(1)
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities (Prevention) Act, Police Station-
Satrikh, District- Barabanki, and also
quash
its
consequential
criminal
proceeding, contained as Annexure No 1 to
this petition."

3. This is a case which can be
appreciated on the basis of maxim "Sublato
fundamento, cadit opus" which means if
the foundation of anything is vanished, the
super structure constructed whereon shall
automatically demolish.

4. Learned counsel for the petitioner
has drawn attention of this court towards
the gang chart (Annexure no. 3) wherein
three cases have been imposed against the
petitioner bearing Case Crime Nos. 336 of
2019 u/s 406 & 506 IPC, P.S. Kotwali
Nagar, District Barabanki, Case Crime No.
96 of 2020 u/s 323, 504, 506, 342 IPC,
P.S. Satrikh, District Barabanki, Case
Crime No. 121 of 2020 u/s 420, 504 &
506 IPC, P.S. Satrikh, District Barabanki.
Learned counsel for the petitioner has
stated that the proceedings of all the
aforesaid three cases have been quashed
by this Court on the basis of compromise
between the parties.

5. Attention has been drawn towards
the order dated 18.4.2023 passed by this
Court in Application U/s 482 No. 1009 of
2023 allowing the petition filed u/s 482
Cr.P.C. quashing the entire proceedings
emanating pursuant to the Case Crime no.
1 All. Ramesh Kumar Vs.State of U.P. & Anr.
261
7341/2020 arising out of Crime No. 0336
of 2019 (supra).

6. Further, attention has been drawn
towards the order dated 31.8.2022 passed
in Application U/S 482 No. 5429 of 2022
(Ramesh Kumar Yadav vs. State of U.P. &
others) quashing the entire proceedings
emanating
from
F.I.R./
Crime
No.
0121/2020 (supra). Further, attention has
been drawn towards the order dated
20.3.2023
passed
by
this
Court
in
Application U/S 482 No. 1001 of 2023
quashing the entire proceedings emanating
out of Crime No. 0096 of 2020 (supra).
Learned counsel for the petitioner has
submitted that there is one more case
bearing Case No. 194 of 2020 u/s 307, 325,
427 IPC, P.S. Satrikh, District Barabanki,
though that case is not included in the gang
chart but the proceedings emanating to
aforesaid crime case have been quashed /
set aside by this Court on the basis of
compromise vide an order dated 11.7.2023.

7. Learned counsel for the petitioner
has, therefore, submitted that since the
entire proceedings of the crime cases which
have been indicated in the gang chart have
been set aside / quashed by this Court,
therefore, the proceedings of Gangster Act
may not continue any longer against the
petitioner inasmuch as the proceedings
under the Gangster Act are not independent
proceedings
rather
same
proceedings
depends upon the cases which have been
indicated in the gang-chart. In support of
the aforesaid arguments learned counsel for
the petitioner has cited some case laws i,e.
Salim vs. State of U.P., (Allahabad) :
2019(12) ILR (Allahabad) 133, Sartaj vs.
State of U.P. : 2020(111) ACrC 51 :
2020(1)
ILR
(Allahabad)
1659
and
judgment dated 12.3.2019 in Criminal
Revision No. 3309 of 2008 : Jai Prakash
and others vs. State of U.P. wherein the
concurrent view of this Court is that since
the proceedings under the Gangster Act are
not the independent proceedings, therefore,
implication and trial of the accusedapplicant u/s 2/3 of Gangster Act was not
justified if the criminal cases, so indicated
in the gang-chart have either been quashed
/ set aside or in those cases the accused
person has been acquitted.

8. Learned AGA has, however, tried
to justify the proceedings of Gangster Act
by saying that the criminal proceedings of
the Gangster Act are going on and those
proceedings may not be quashed / set aside
for the reason that the cases, so indicated in
the gang-chart have been set aside.
However, on being confronted on the point
that if all the criminal cases which have
been indicated in the gang chart have been
set aside / quashed by this Court then how
and on what basis the petitioner may be
implicated and punished u/s 2/3 of the
Gangster Act, he could not give proper
reply.

9. Having heard learned counsel for
the parties, having perused the material
available on record and having regard to
aforesaid case laws, I am also of the
considered opinion that when all the
criminal cases which have been indicated
in the gang chart have been set aside /
quashed by this Court then the foundation
of the Gangster Act goes and if the very
foundation of the Gangster Act goes and
the proceedings of Gangster Act would not
survive on the basis of maxim "Sublato
fundamento, cadit opus". Notably, this
Court in re: Salim vs. State of U.P. (supra)
while allowing the petition, considered and
perused the judgments of the Apex Court in
para 7,8,9,10 and 13 which are being
reproduced herein below :
262 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. In support of his contention
learned counsel has further placed reliance
on the judgment of the Apex Court in the
case of N.R. Ghosh vs. the State of West
Bengal, AIR 1960 Supreme Court (SC) 239
and has relied upon in paragraph 22 of the
same reads as under:-

"The principle stated in the section is
that when a person has once been tried by
a court of competent jurisdiction for an
offence and convicted or acquitted of it, he
shall not while the conviction or acquittal
remains in force, be tried again for the
same offence. In order, therefore, that the
appellant may have the benefit of the
section he must have been tried by a court
of competent jurisdiction. Furthermore,
such acquittal must be in force."

8. Reference to the Apex Court
judgment
in
the
case
of
Manipur
Administration, Manipur vs. Thokchon
Veere Singh, AIR 1965 (SC) 87 has also
been made wherein paragraph 6 are as
follows:-

Before referring to the decision of this
Court in Pritam Singh v. State of Punjab(1)
it would be convenient to refer to and put
aside one point for clearing the ground.
Section 403, Criminal Procedure Code
embodies in statutory form the accepted
English rule of autre fois acquit. This
section is as follows:-

"403 (1) A person who has been once
tried by a Court of competent jurisdiction
for an offence and convicted or acquitted of
such offence shall, while such conviction or
acquittal remains in force, not be liable to
be tried again for the same offence, nor on
the same facts for any offence for which a
different charge from the one made against
him might have been made under s. 236, or
for which he might have been convicted
under section 237. (2) A person acquitted
or convicted of any offence may be
afterwards tried for any distinct offence for
which a separate charge might have been
made against him on the former trial under
section 235, sub-section (1). (3) A person
convicted of any offence constituted by any
act causing consequences which, together
with such act, constituted a different
offence from that of which he was convicted
may be afterwards tried for such last
mentioned offence, if the consequences had
not happened, or were not known to the
Court to have happened, at the time when
he was convicted.
(4) A person acquitted or convicted of any
offence constituted by any acts may,
notwithstanding
such
acquittal
or
conviction, be subsequently charged with,
and tried for, any other offence constituted
by the same acts which he may have
committed if the Court by which he was
first tried was not competent to try the
offence with which he is subsequently
charged.

(1) A.T.R. 1956 S.C. 415.

(5) Nothing in this section shall affect
the provisions of section 26 of the General
Clauses Act, 1897, or section 188 of this
Code.

Explanation-The
dismissal
of
a
complaint, the stopping of proceedings
under section 249, the discharge of the
accused or any entry made upon a charge
under section 273, is not an acquittal for
the purposes of this section." Section 26 of
the General Clauses Act which is referred
to in s. 403 enacts:

"26. Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be
liable to be prosecuted and punished under
either or any of those enactments, but shall
not be liable to be punished twice for the
same offence."

We might also, in this connection,
refer to Art. 20(2) of the Constitution since
it makes provision for a bar against a
1 All. Sumitra & Anr. Vs. State of U.P. & Anr.
263
second prosecution in an analogous case.
That provision reads:

"20(2). No person shall be prosecuted
and punished for the same offence more
than once." As has been pointed out by this
Court in State of Bombay v. S. L. Apte(1),
both in the case of Art. 20(2) of the
Constitution as well as s. 26 of the General
Clauses Act to operate as a bar the second
prosecution
and
the
consequential
punishment thereunder, must be for "same
offence" i.e., an offence whose ingredients
are the same. It has been pointed out in the
same decision that the V Amendment of the
American Constitution which provides that
no person shall be subject, for the same
offence, to be twice put in jeopardy of life or
limb, proceeds on the same principle.

9. Reliace on Apex Court judgment in
the case of Lalta and others vs. State of U.P.,
AIR 1970 (SC) 1381 has been made,
wherein case of Pritam Singh's (supra) and
Manipur Administration's case (supra) have
been accepted as binding authorities on the
issue. Reference to Municipal Corporation
of Delhi vs. Shiv Singh 1971 (1) SCC 422
has been made where Section 26 of the
general clauses Act 1897 were considered
regarding the question of double jeopardy in
relation to prosecution of an accused for
single offence under two enactments and it
was held that Section 26 of the general
clauses Act prevents accused from double
penalty. This judgment has been relied by
the counsel to advance the proposition that
the prosecution of the revisionist under the
general provisions of Indian Penal Code
and then under the provisions of Special Act
i.e., Gangster Act on the basis of implication
in the case under Section I.P.C., wherein he
has been acquitted should not be permitted.

10. Counsel for the applicant has
referred to the judgment, Bhagat Ram vs.
State of Rajasthan (1972) 2 SCC 466,
wherein the Apex Court held that even if an
order of acquittal is passed by Division
Bench of the Court, it is not open for the
third Judge of the same Court in a
subsequent stage of the same proceedings to
convict the person unless the judgment of
the Division Bench is set aside by the
Supreme Court. In view of the principle
embodied in Section 403 I.P.C.

13. Learned counsel for the applicant
has relied upon the judgment in the case of
Kolla Vira Raghav Rao vs. Gorantla
Vlalalalalal Rao, (2011) 2 SCC 703. In this
case the Apex Court disapproved the
prosecution of the accused under Section
420 I.P.C. After he was convicted under
Section 138 N.I. Act, holding that the
subsequent prosecution is barred by article
20(2) and Section 300(1) Cr.P.C. once the
facts are the same. "

10. Accordingly, the order dated
17.01.2023, passed by the Special Judge,
Uttar Pradesh Gangsters and Anti-Social
Activities
(Prevention)
Act,
Additional
Session Judge, Court No.-08. Barabanki in
Gangster Case No. 2009/2021, State Vs
Ramesh Kumar & others, arising out case
crime no. 215/2020, under section-3(1) Uttar
Pradesh Gangsters and Anti-Social Activities
(Prevention) Act, Police Station- Satrikh,
District- Barabanki, and its consequential
criminal proceeding are hereby quashed.

11. In view of above, the petition is
allowed, so far as the petitioner is concerned.
----------
(2024) 1 ILRA 263
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 4182 of 2022