# Abdul v. The State of U.P. And Another

- **Citation:** High Court of Judicature at Allahabad #42941
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-17
- **Bench:** Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-v-the-state-of-u-p-and-another-42941
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section-482-
Quashing
of
proceeding-offence
under
section-401-argument that if allegation
taken to be true on its face value-no offence
made out against applicant-as no allegation
of habitual offender-held-the word "other
gang person-denotes the gang with whom
applicant
associated-involved
in
commission of theft-application rejected.

Held: Para-16
The aforesaid view of this Court was
expressed with reference to the Goonda
Act in which the word habitual is used
with regard to an individual and not with
reference to a gang. But in view of the
provisions of Section 401 I.P.C., word
habitual has been used with reference to
a gang who habitually deals in theft or
roberry.
This
fact
has
not
been
challenged by any other accused who
was in the company of gang alongwith
present applicant at the relevant time.
Hence there was sufficient evidence that
the applicant was associated with a gang
who habitually committed offence of
theft
by
administering
narcotic
substance on the passenger of the train.

Case Law discussed:
1912, Cr./L.J.R. Page 539; air 1992 SC 604;
1990, 4 SCC Cases 552; (1984) 3 SCC 14;
(1995) 3 SCC 237

## Text

518 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against the proceeding of Recovery of
Debt is not interfered with.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.04.2013

BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

U/S 482/378/407 No. 1672 Of 2011

Abdul ...Petitioner
Versus
The State of U.P. And Another Respondents

Counsel for the Petitioner:
Sri Parijaat Belaura

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section-482-
Quashing
of
proceeding-offence
under
section-401-argument that if allegation
taken to be true on its face value-no offence
made out against applicant-as no allegation
of habitual offender-held-the word "other
gang person-denotes the gang with whom
applicant
associated-involved
in
commission of theft-application rejected.

Held: Para-16
The aforesaid view of this Court was
expressed with reference to the Goonda
Act in which the word habitual is used
with regard to an individual and not with
reference to a gang. But in view of the
provisions of Section 401 I.P.C., word
habitual has been used with reference to
a gang who habitually deals in theft or
roberry.
This
fact
has
not
been
challenged by any other accused who
was in the company of gang alongwith
present applicant at the relevant time.
Hence there was sufficient evidence that
the applicant was associated with a gang
who habitually committed offence of
theft
by
administering
narcotic
substance on the passenger of the train.

Case Law discussed:
1912, Cr./L.J.R. Page 539; air 1992 SC 604;
1990, 4 SCC Cases 552; (1984) 3 SCC 14;
(1995) 3 SCC 237

(Delivered by Hon'ble Surendra Vikram
Singh Rathore, J.)

1. By means of this application
under Section 482 Cr.P.C., the applicant
has made prayer to quash the charge sheet
no.- 182 of 2010 arising out of Case
Crime No.-338 of 2010 under Section 401
I.P.C., P.S. G.R.P. Charbagh, Lucknow
and entire proceedings pending in the
Court of Chief Judicial Magistrate,
Northern Railway, Lucknow.

2. In brief the facts giving arise to
the present application are that on
9.7.2010 at about 22:15 hours, the police
force of G.R.P. Charbagh received a
secret information that a gang of thieves
is present behind the Hanuman Temple,
then police party reached there and after
hearing their conversation they were
confirmed that it was a gang of thieves
and thereafter police party apprehended
three persons on the spot and on
interrogation these persons disclosed that
by administering narcotic powder, they
used to commit theft of the belongings of
the passengers of trains. The apprehended
accused persons were searched by the
police in accordance with law and
thereafter the present applicant was found
in possession of the narcotic powder and
the other accused Rajesh Chandra Joshi
was also found in possession of narcotic
powder and also one unlicensed knife.
Three cases under different sections were
registered against the accused persons.
Case Crime No.-338 of 2010 under
Section 401 I.P.C. was registered against
the accused persons in which after
1 All Abdul Vs. The State of U.P. And Another
519
investigation the police has submitted
charge sheet which is under challenge in
the instant application. The other cases
were under Sections 8/21/22 N.D.P.S. Act
and another under Section 4/25 Arms Act.

3. Submission of the learned
Counsel for the applicant is that even if
the allegations made against the accused
persons are taken to be true on its face
value even then no offence under Section
401 I.P.C. can be said to have been made
out against the applicant. In support of his
contention he has placed reliance on the
pronouncement of Hon'ble Bombay
High Court in the case of Criminal
Appeal No.-516 of 2011 Emperor Vs.
Tukaram Malhari, 1912, Cr./L.J.R.
page 539 wherein the Hon'ble Apex Court
has held as under:-

"Under Section 401 of the Penal
Code, it has to be determined whether a
party of accused persons constitute a
gang of persons associated for the
purpose of habitual theft, evidence that
each individual of the party is a convicted
thief , is relevant evidence for the
purposes of that question."

4. Learned A.G.A has submitted that
word
habitually
is
important
and
prosecution shall prove its case during
trial by adducing evidence that the
applicant is habitual offender and at this
stage proceedings cannot be quashed on
this ground.

5. Before proceedings further, legal
position on the point of quashing the
proceeding has to be considered.

6. Hon'ble the Apex Court in the
case of State of Haryana and others v.
Ch. Bhajan Lal and others reported in
[AIR 1992 SC 604] after considering
large number of cases on the point of
quashing the proceedings held at paras
108 and 109 as follows:

"(108) In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extra-ordinary power under Article 226
of the inherent powers under section 482
of the Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised
either to prevent abuse of the process of
any Court or otherwise to secure the
ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power
should be exercised.

(1) Where the allegations made in
the First Information Report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima-facie constitute any offence
or make out a case against the accused.

(2) Where the allegations in the
First Information Report and other
materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation by
police officers under section 156 (1) of
the Code except under an order of a
Magistrate within the purview of section
155 (2) of the Code.

(3)
Where
the
uncontroverted
allegations
made
in
the
FIR
or
complaint and the evidence collected in
support of the same do not disclose the
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
commission of any offence and make out
a case against the accused.

(4) Where, the allegations in the
F.I.R. do not constitute a cognizable
offence but constitute only a noncognizable offence, no investigation is
permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155 (2) of the Code

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is sufficient
ground for proceeding against the
accused.

(6) Where there is an express legal
bar engrafted in any of the provisions of
the Code or the concerned Act (under
which
a
criminal
proceeding
is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

"(109) We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should
be exercised very sparingly and with
circumspection and that too in the rarest
of rare cases; that the Court will not be
justified in embarking upon an enquiry
as to the reliability or genuineness or
otherwise of the allegations made in the
F.I.R. or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
Court to act according to its whim or
caprice.?"

7. Before proceedings further, it is
necessary to quote, Section 401 I.P.C.,
which reads as under:-

"Punishment for belonging to gang
of thieves- Whoever, at any time after the
passing of this Act, shall belong to any
wandering or other gang of persons
associated for the purpose of habitually
committing theft or robbery, and not
being a gang of thugs or dacoits, shall be
punished with rigorous imprisonment for
a term which may extend to seven years,
and shall also be liable to fine."

8. Perusal of the aforesaid Section,
makes it clear that in order to constitute
the offence under Section 401 I.P.C. the
following ingredients are necessary:-

(I)That the accused belongs to any
wandering or other gang of persons.

(II)That such gang of persons was
associated for the purpose of habitually

Committing theft or robbery.

(III)That such a gang was not being a
gang of thugs or dacoits.

9. In the facts of the instant case the
present applicant was found in the
association with two other persons and it
was accepted by them that they used to
administer
narcotic
drugs
on
the
passenger of train and thereafter they
commit theft and narcotic substance was
also recovered from and also illegal
weapon. So, it was sufficient for the
police to prima-facie establish that they
belong to a gang of thieves. Now, the
grievance of the learned Counsel for the
applicant is that since there is no evidence
that the applicant was habitual offender
1 All Abdul Vs. The State of U.P. And Another
521
therefore no offence can be said to have
been made out under Section 401 I.P.C.

10. It is pertinent to mention here
that this charge sheet has been challenged
only by the accused Abdul and not by the
other accused persons. The perusal of the
401 I.P.C. makes it clear that the word
habitually virtually qualifies the word
gang and not to the person who is member
thereof. The use of words by the
legislature " or other gang of persons
associated for the purpose of habitually
committing theft or robbery" makes it
clear that the gang with which the accused
was associated was habitually involved in
commission of theft or robbery. To attract
Section 401 I.P.C. the accused must
belong to such a gang which is associated
for the purpose of habitually committing
theft or robbery.

11. Accordingly, it is not necessary,
that each member of the gang was in the
habit of committing theft or any particular
act of theft or roberry. Once it has been
proved that a gang was formed for the
purpose of habitually committing theft of
the persons, who thereafter joined the
gang in committing one or more theft
comes within the purview of Section 401
I.P.C.

12. Belongings to a gang of persons
associated for the purpose of habitually
committing theft is punishable under
Section 401 I.P.C. The term belong used
in Section 401 I.P.C. implies something
more than the idea of casual association,
which involves the notion of continuity
and indicates more or less intimate
connection with a body of persons
extending over the period of time
sufficiently wrong to warrant inference
that
person
arrested
has
associated
himself with the gang for the common
purpose, which is the commission of theft.
So, it is more than a casual association.
The substance of the Section is the
agreement habitually to commit theft not
the
actual
commission
or
admitted
commission of theft or roberry.

13. The existence of such an
agreement and participation of any person
in that agreement may be inferred from
circumstances. The word habitually has
been considered by the Hon'ble Apex
Court in the case of Ayub alias Pappu
Khan
Nawab
Khan
Pathan
Vs.
S.N.Sinha and Another, 1990, 4 SCC
Cases 552, Writ Petition(Criminal) No.-
687 of 1990, in para -5 of the said
judgment followed its earlier verdict in
the Case of Vijay Narayan Singh Vs.
State of Bhihar (1984) 3 SCC 14 and
quoted para 31 of that judgment, which is
being reproduced as under:-

"The expression 'habitually' means
'repeatedly' or 'persistently'. It implies a
thread of continuity stringing together
similar
repetitive
acts.
Repeated,
persistent and similar, but not isolated,
individual
and
dissimilar
acts
are
necessary to justify an inference of habit.
It connotes frequent commission of acts
or omissions of the same kind referred to
in each of the said sub-clauses or an
aggregate of similar acts or omissions."

14. However, this observation was
given
with
reference
to
Gujarat
Prevention of Anti Social Activities Act
1985. In another judgment in the case of
Mustakmiya
Jabbarmiya
Shaikh
Vs.
M.M.Mehta, Commissioner of Police &
Others, (1995) 3 SCC 237, the Hon'ble
Apex Court has again occasion to
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
consider the meaning of word 'habitually'
in para 8 as under:-

"
The
expression
'habit'
or
'habitual'
has
however,
not
been
defined under the Act. According to
The Law Lexicon by P.Ramanatha
Aiyar, Reprint Edn. (1987), p. 499,
'habitually' means constant, customary
and addicted to specified habit and the
term habitual criminal may be applied
to anyone who has been previously
convicted of a crime to the sentences
and committed to prison more than
twice. The word 'habitually' means
'usually'
and
'generally'.
Almost
similar meaning is assigned to the
words
'habit'
in
Aiyar's
Judicial
Dictionary, 10th Edn. p. 485. It does
not refer to the frequency of the
occasions but to the invariability of
practice and the habit has to be proved
by totality of facts. It, therefore, follows
that the complicity of a person in an
isolated offence is neither evidence nor
a material of any help to conclude that
a particular person is a "dangerous
person"
unless
there
is
material
suggesting his complicity in such cases
which lead to a reasonable conclusion
that the person is a habitual criminal."

15. In the case law relied upon by
the learned Counsel for the applicant, i.e.
Shanker
Ji
Shukla
Vs.
Ayukt,
Allahabad
Mandal,
Allahabad
&
Others 2005 (52) ACC 638, wherein this
court has held in para 5, as under:-

"The emphasis is on the word
habitual and a single or two acts after a
long gap does not amount to the term '
Habitually'. The expression 'habitually'
means 'repeatedly' or 'persistently'. It
implies a thread of continuity stringing
together similar repetitive acts. Repeated,
persistent and similar, but not isolated,
individual
and
dissimilar
acts
are
necessary to justify any inference of
habit."

16. The aforesaid view of this Court
was expressed with reference to the Goonda
Act in which the word habitual is used with
regard to an individual and not with
reference to a gang. But in view of the
provisions of Section 401 I.P.C., word
habitual has been used with reference to a
gang who habitually deals in theft or roberry.
This fact has not been challenged by any
other accused who was in the company of
gang alongwith present applicant at the
relevant time. Hence there was sufficient
evidence that the applicant was associated
with a gang who habitually committed
offence of theft by administering narcotic
substance on the passenger of the train.

17. In view of the above discussion,
this application under Section 482 Cr.P.C.
is devoid of merits and deserves to be
dismissed and it is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.04.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition No. 1784 (M/S) Of 2013

Smt. Shyam Wati ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Dr. L.P. Mishra;Sri R.N.S. Chauhan

Counsel for the Respondents:
C.S.C.; Mrs. Arti Ganguli
Sri Heman Kumar Mishra