# Ambuj Parag Dubey & Ors v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-06
- **Case number:** Criminal Misc. Writ Petition No. 16983 of 2022
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambuj-parag-dubey-ors-v-state-of-u-p-ors-49138
- **Pages:** 11

## Headnote

A. Criminal Law - U.P. Gangsters and
Anti-Social
Activities
(Prevention)
Act, 1986-Section 3(1)-Quashing of
FIR-FIR lodged against gang leader
and members of
gang-they
have
been chargesheeted in base cases
shown in gang chart-But that alone
is not basis for prosecution under
Gangster Act- Where the competent
authority is not convinced on the
material
placed
by
police
authorities, the competent authority
may necessarily decide to call for a
discussion to
prima facie
satisfy
himself
that
prosecution
is
warranted-FIR
that
follows
the
approval of gang chart cannot be
faulted or quashed merely for want
of discussion.(Para 1 to 43)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

334 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 1 ILRA 334
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 16983 of 2022
along with Crl. Misc. Writ Petition No. 18326 of
2022

Ambuj Parag Dubey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rakesh Dubey, Sri Manish Tiwary, Sr.
Advocate

Counsel for the Respondents:
G.A.

A. Criminal Law - U.P. Gangsters and
Anti-Social
Activities
(Prevention)
Act, 1986-Section 3(1)-Quashing of
FIR-FIR lodged against gang leader
and members of
gang-they
have
been chargesheeted in base cases
shown in gang chart-But that alone
is not basis for prosecution under
Gangster Act- Where the competent
authority is not convinced on the
material
placed
by
police
authorities, the competent authority
may necessarily decide to call for a
discussion to
prima facie
satisfy
himself
that
prosecution
is
warranted-FIR
that
follows
the
approval of gang chart cannot be
faulted or quashed merely for want
of discussion.(Para 1 to 43)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Ashok Kumar Dixit Vs St. of U.P.(1987) AIR
All 235(All HC, FB)
2. Romesh Thappar Vs St. of Madras (1950) AIR
SC 124

3. Nagen Murmu Vs St. of W.B. (1973) AIR SC
844

4. Bablu Mitra Vs St. of W. B. (1973) AIR SC 197

5. Jadunandan Sha Vs DM, Dhanbad (1983) 4
SCC 301

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Syed Waiz Mian, J.)

1. Heard Sri Rakesh Dubey, learned
counsel appearing for the petitioners and
learned A.G.A. for the State-respondents.

2. Facts of Writ Petition No. 16983 of
2022 is being referred to for the sake of
convenience.

3. Petitioners by the instant writ
petition, seek quashing of FIR bearing Case
Crime No. 0424 of 2022 lodged under
Section 3(1) of the The Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention)
Act,
1986
(For
short
''Gangster
Act')
at
Police
StationBhognipur, District Kanpur Dehat. The FIR
came to be lodged by the In-charge
Inspector P.S. Bhognipur, wherein, the
second petitioner has been shown as the
gang leader along with ten other members
of the gang, including, first and third
petitioners.
Against
the
second
petitioner/gang leader three base cases have
been included in the gang-chart, whereas,
against the first and second petitioners one
base case have been shown. In Writ
Petition No. 18326 of 2022, the petitioner
is at serial no. 6 of the gang-chart and two
cases have been shown against him.

4. It is alleged in the FIR that the
petitioners, along with other members, are
1 All. Ambuj Parag Dubey & Ors. Vs. State of U.P. & Ors.
335
operating as a gang and have committed
offence under Section 302 IPC and other
economic offences on the basis of forged
and
manufactured
documents.
They
indulged in antisocial activities, thereby,
creating fear and terror amongst the public;
it is alleged that due to fear of the gang no
member of the public is prepared to come
forward and depose against the gang leader
and gang members. Police report (chargesheet) has been filed in the base cases
against the petitioners and from the input
collected by the Investigating Officer, it has
become incumbent in public interest to
prosecute
the
petitioners
under
the
Gangster Act so as to prevent them from
indulging
in
antisocial
activities
or
committing further organized crime.

5. The first petitioner, has been shown
as a gang member, claims to be qualified,
having B.Tech (Mechanical) degree and a
degree in Law, and is aged about 27 years.
The second petitioner is the gang leader,
claims to be a practising lawyer at District
Court Bhognipur, District Kanpur Dehat,
for the last 20 years, and the third petitioner
is a gang member.

6. The following cases have been
registered
against
the
second
petitioner/gang leader :- Crime Case No. 98
of 2022 under Section 302, 394, 504, 506,
34, 120B IPC, P.S. Bhognipur, District
Kanpur Dehat, Case Crime No. 190 of
2021 under Sections 420, 467, 468, 471,
323, 504, 506 IPC, P.S. Bhognipur, District
Kanpur Dehat & Case Crime No. 173 of
2019 under Sections 420, 467, 468, 471
IPC, P.S. Bhognipur, District Kanpur
Dehat.

7. Learned counsel for the petitioners
submits that registration of the impugned
FIR rests on the base case noted in the
gang-chart. It is urged that before lodging
of the impugned FIR, the mandatory
provisions of the U.P. Gangster and Anti
Social Activities (Prevention) Rules, 2021
(for short ''Gangster Rules), in particular,
Rules, 5, 8, 10 and 12 have not been
followed in its true spirit, further, it is
urged that petitioners would not be covered
within the definition of ''gang' as defined
under Section 2(b) of Gangster Act.

8. It is further submitted that in Case
Crime No. 98 of 2022, the second
petitioner is not nominated, however,
during investigation the name of the first
and second petitioner surfaced. In case
Crime No. 173 of 2019, on further
investigation a supplementary charge-sheet
came to be filed against the gang leader. In
case Case Crime No. 190 of 2021, the
second petitioner is nominated, wherein, it
is alleged that the accused, therein, are
trying to procure the property of the
informant on the basis of forged document.

9. In case Crime No. 173 of 2019 and
Case Crime No. 190 of 2021 the second
petitioner has obtained bail/anticipatory
bail. It is further urged that sub-rule (3) of
Rule 5 mandates that the gang-chart would
not be approved summarily but after due
discussion in a joint meeting of the officials
has not been complied.

10. It is submitted that in the instant
case the District Magistrate/competent
authority
granted
approval
without
applying his judicial mind in the joint
meeting with Superintendent of Police; the
approval
was
granted
on
a
printed
proforma, whereas, Rule 17 prohibits
recommendations on a printed proforma
forwarded by the Nodal Officer and
approved by the Superintendent of Police,
as well as, the Competent Authority. It is
336 INDIAN LAW REPORTS ALLAHABAD SERIES
urged that the approval violates Rule 17 of
the Gangster Rules.

11. Learned State Counsel opposing
the writ petition submits that the petition
lacks merit; FIR cannot be quashed on
mere procedural irregularity; it is not being
disputed by the petitioners that in the base
case they have been charge-sheeted for
offences covered under the Gangster Act;
the scope of quashing of the impugned FIR
lodged under a special statute is miniscule;
the writ petition being devoid of merit is
liable to be dismissed.

12. Rival submissions fall for
consideration.

13. Gangster Act was enacted to make
special provision for the prevention of, and
for coping with gangsters and anti-social
activities
and
for
matters
connected
therewith and incidental thereto. The
Gangster Act is a special statute, as well as,
a penal statute.

14. The Gangster Act seeks to punish
declared criminals who have deliberately
chosen the life of crime. The activities of
these professional perpetrators of organized
crimes, violence and orgy has a far more
baneful effect on the health and morals of
the society and its people. If the activities
of such recidivists are subjected to same
punishment
as
that
other
ordinary
criminals, the confidence of public in the
efficacy
and
efficiency
of
State
Administration is bound to shake (vide;
Ashok Kumar Dixit vs. State of U.P.,
AIR 1987 (All) 235 (All HC,FB).

15. As per Section 20 of Gangster
Act, provisions of the Act or any Rule
made thereunder shall have overriding
effect
notwithstanding
anything
inconsistent therewith contained in any
other enactment. The State Government in
exercise of powers under Section 23 of the
Gangster Act and in supersession of all
Government Orders and notifications, duly
notified on 27 December 2021, the
Gangster Rules to provide for speedy and
transparent procedure to punish gangster
and to establish efficient recovery system
in respect of property of gangsters and
incidental benefits acquired by them
through crimes and acts related therewith.

16. Chapter-I of the Gangster Rules
defines ''Base Cases', ''Form' ''Nodal
Officer' and ''worldly', which reads thus:

2. (1)......

a......

b. "Base Cases" means the cases on
the basis of which a gang-chart has been
prepared with the intention of taking action
against the gang under the Act;

c......

d......

e. "Form" means the form appended to
these rules;

f. "Nodal Officer" means a police
officer not below the rank of Deputy
Superintendent of Police under the Police
Act, 1861 (Act no. 5 of 1861) and the Uttar
Pradesh Police Regulations, 1861, for the
time being in force, designated by the
district head of Police, the Commissioner
of
Police/Senior
Superintendent
of
Police/Superintendent of Police, as the case
may be, to prepare the gang chart under the
Act;

g.....

h.
"Worldly"
includes
illegal
audacious acts done for the sake of
temporal gratification.

17. Chapter-II of Gangster Rules lays
down ''Conditions of Criminal Liability of
1 All. Ambuj Parag Dubey & Ors. Vs. State of U.P. & Ors.
337
Gangs'. Rule 3(1) provides that the offences
mentioned in Sub-sections (i) to (xxv) of
clause (b) of section 2 of the Gangster Act
shall be punishable under the Gangster Act
only if they are: (a) committed for
disturbing public order; or (b) committed
by causing violence or threat or display of
violence, or by intimidation, or coercion or
otherwise, either singly or collectively, for
the purposes of obtaining any unfair
worldly, economic, material, pecuniary or
other advantage to himself or to any other
person.

18. Section 2(b) defines Gang- The
requirement of ''Gang' are that

(i) Gang means a group of persons; (ii)
these persons might act either singly or
collectively; (iii) such action is to be
associated with violence or threat or show
of violence or intimidation or coercion or
otherwise; (iv) such action must be with the
object of disturbing public order or of
gaining any undue advantage (temporal,
pecuniary,
material
or
otherwise
for
himself or for any other person).

19. The expression ''public order' is of
wide connotation and signifies the state of
tranquillity prevailing among the members
of political society as a result of the internal
regulation of the Government. (Romesh
Thappar vs. State of Madras, AIR 1950
SC 124). Thus, public order means even
tempo of the life of the community taking
within its fold even a specified locality and
a substantial section of the society. (Nagen
Murmu vs. State of West Bengal, AIR
1973 SC 844). In other words, the word
public order is virtually synonymous with
public peace, safety and tranquillity. The
incidents of breach of public order would
include the legislation to regulate the use of
sound amplifiers in public places, forcing
entry into, schools, setting fire to school
building, public property, public gambling,
manufacture and distribution of spurious
and adulterated liquor, drugs, attempting to
throw a bomb at the Police etc. are all
connected with public order. (Bablu Mitra
vs. State of West Bengal, AIR 1973 SC
197).

20. Prima facie, a single incident
relating to a single individual based on
personal enmity may not disturb public
order, and may remain confined to ''law and
order' problem but it is not always
necessary.
The
basic
question
for
determination is whether the incident
disturbs the public order or law and order,
has to be determined on the basis of the
cumulative
effect
on
the
facts
and
circumstances of each and every case. It
rather depends on the reaction of the public
to the happening and the consequential
terror spread by the culprits and the
atmosphere
surcharged
thereby.
The
distinction between public order and law
and order was concisely explained by the
Supreme Court in Jadunandan Sha vs.
District Magistrate, Dhanbad, (1983) 4
SCC 301.

21. Under the Gangster Act no
distinction has been made between public
order and law and order, it is not the status
of criminal but the act which is made
punishable under the Gangster Act. The
activities of gangsters for offences under
the Gangster Act, since they pose grave
threat to the even tempo of the society,
therefore, called for sterner and more
deterrent punishment and speedier hike and
early
booking.
The
Gangster
Rules
thereafter mandates that although a person
may not be physically present on the place
of occurrence yet he may be roped in under
the provisions of the Gangster Act in
338 INDIAN LAW REPORTS ALLAHABAD SERIES
relation to that occurrence on the facile
ground that he is a gangster. Thus, there is
no need of any overt and positive act of the
person intended to be apprehended at the
place. It is enough to prove his active
complicity which has a bearing on the
crime.
(Vide:
Ashok
Kumar
Dixit
(supra)).

22. The expression ''or otherwise' as
used in the definition of gang can be read
conjunctively or disjunctively. If read
conjunctively, the words ''or otherwise', in
law, when used in a general phrase,
following an enumeration of particulars,
are commonly interpreted in a restricted
sense, as referring to such other matters as
are kindred to the classes before mentioned.
The word "or" in "or otherwise" is a
disjunctive that marks an alternative which
generally corresponds to the words "either".
An interoperation of the general words "or
otherwise" limiting them to the matters and
things of the same kind as the previous
words (violence, intimidation, coercion)
would make the general words "or
otherwise" following the preceding specific
words,
redundant.
These
words
"or
otherwise" are not words of limitation, but
of extension so as to cover all possible
offences.
The
word
"otherwise"
is,
therefore, not to be read "ejusdem generis"
with the other instances of violence
mentioned in the earlier part of sub-section.

23. Further, on perusal of the offences
which have been included in the definition
of Gang includes offences under ChapterXVII of Indian Penal Code which include
the offence of theft under Section 378,
offences under Section 403 and the related
sections
dealing
with
criminal
misappropriation of property, Section 405
and allied sections deals with the crime of
criminal
breach
of
trust,
dishonest
misappropriation of property. Section 410
and
related
sections
concern
stolen
property, Section 420 and related sections
deal with offences of cheating which only
involve deception, fraudulent or dishonest
inducement to a person or his property. It is
evident from the provisions included within
the definition of gang do not require
existence of force or violence. Similarly,
offences under Section 3 of U.P. Public
Gambling Act may not necessarily involve
the use of force. Thus, the word ''otherwise'
has been employed disjunctively in the
definition of gang and cannot be read as
"ejusdem generis", with other incidents of
violence mentioned in the earlier part of
this sub-section (Vide: Verneet Kumar
(supra)).

24. Rule 4 of the Gangster Rules
clarifies that persons at the scene of
incident or direct participation in the
incident is not necessary. It is further
provided that it is not necessary to commit
any offence together with all members of
the said gang. If a member of that gang has
committed any offence which comes within
the purview of the Gangster Act, along
with any other member or gang leader, they
may be presumed to be a gang.

25. Rule 4 is extracted:

4. (1) Presence at the scene of
incident or direct participation in the
incident is not necessary: For committing
the criminal act defined in clause (b) of
section 2 of the Act, if any person
organizes the whole gang or abets or aids
the gang leader or member of that gang or
provides protection and shelter to any such
person, with the knowledge that the person
in question is a gang leader or member of a
gang
or
involved
in
committing/aiding/abetting a criminal act,
1 All. Ambuj Parag Dubey & Ors. Vs. State of U.P. & Ors.
339
before or after the commission of such
activity, then such a person shall also be
liable under the provisions of the Act even
though the whole gang had not participated
in the incident at the time of commission of
the said incident or was not present at the
scheme of the incident.

(2) It is not necessary to commit any
offence together: For a person to be a
member of a gang under the Act, it is not
necessary for him to have committed any
offence together with all the members of
the said gang. If a member of that gang has
committed any offence which comes within
the purview of the Act, along with any
other member or gang leader, they may be
presumed to be a gang:

Provided that no such person shall be
included in gang who has committed a few
offences which do not come within the
purview of the Act, along with a member
three years or earlier.

26. All the anti-social activities
mentioned in the definition of gang are not
covered as offences but are certainly
unlawful activities having serious reflection
on the society, though not termed as
offences. Thus, the law never required that
offences must have been committed in past
or involve use of violence for prosecution
under the Gangster Act. Further, as per
definition of gang, the Gangster Act seeks
to prevent and punish activities which may
result
in undue temporal, pecuniary,
material or other advantage to the gangsters
or any other person and which may or may
not necessarily, involve the use of violence.
(Verneet Kumar vs. State of U.P. 2009
(1) ALL CrJ 377).

27. Chapter-III of Gangster Rules
lays down the principles related to Gang
Chart. Rule-5 mandates that Incharge of a
Police Station/Station House Officer/
Inspector shall prepare a Gang Chart
(Form No. 1) mentioning the details of
criminal activities of the gang. The Gang
Chart will be presented to the district
head
of
the
Police
after
clear
recommendation
of
the
Additional
Superintendent of Police mentioning the
detailed activities in relation of all the
persons of the said gang. Sub-rule (2) of
Rule 5 provides that the provisions
contained therein shall be complied in
respect of gang charts. The provision
reads thus:

5. (1) To initiate proceedings under
this Act, the concerned Incharge of Police
General Rules Station/Station House
Officer/Inspector shall prepare a gangchart mentioning the details of criminal
activities of the gang.

(2) The gang-chart will be presented
to the district head of police after clear
recommendation
of
the
Additional
Superintendent of Police mentioning the
detailed activities in relation to all the
persons of the said gang.

(2) The following provisions shall
be complied with in respect of gangcharts:-

a. The gang-chart will not be
approved summarily but after due
discussion in a joint meeting of the
Commissioner
of
Police/District
Magistrate/Senior Superintendent of
Police/ Superintendent of Police.

b. There may be no gang of one
person but there may be a gang of
known and other unknown persons and
in that form the gang-chart may be
approved as per these rules.

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
340 INDIAN LAW REPORTS ALLAHABAD SERIES
shall
not
be
approved
without
the
completion of investigation of the base
case.

d. Those cases shall not be mentioned
in the gang-chart, on the basis of which
action has already been taken once under
this Act.

e. A separate list of criminal history,
as given in Form No. 4, shall be attached
with the gang-chart detailing all the
criminal activities of that gang and
mentioning all the criminal cases, even if
acquittal has been granted in those case or
even where final report has been submitted
in the absence of evidence.

Along with the above, a certified copy
of the gang register kept at the police
station shall also be attached with the gangchart. In addition to the above, the
information of crime and gang members
mentioned in the gang-chart will also be
updated on Interoperable Criminal Justice
(ICJS) portal and Crime and Criminal
Tracking Network System (CCTNS).

28. Rule 6 provides that while
preparing the Gang Chart it shall be clearly
mentioned, if the alleged act of the gang
falls within the purview of clause (b) of
Section 2 of the Act along with relevant
provisions, further, sub-rule (2) mandates
that the Investigating Officer makes an
endorsement to the effect that the accused
is causing panic, alarm or terror in public,
then evidence shall be collected in this
regard. In addition to the above, a list of
criminal history may be attached separately
in the prescribed format. (Form No. 4)

29. Rule 10 mandates that records of
base cases, would accompany the gang
chart and Rule 11 mandates that the present
status of all the accused, whether they are
in jail or on bail or absconding, shall be
clearly mentioned. Rule 13 mandates that
while writing abstract below the gang chart
and particulars of those officials shall be
specifically
mentioned.
Rule
13
is
extracted:

13. While writing the abstract below
the gang-chart and particulars separately
with the gang-chart, the particulars of those
offences shall be specifically mentioned:-

i. which have been committed for
pecuniary, materialistic and temporal or
similar benefits; or

ii. which disturb the public order; or
iii. Which are a ground for detention under
the National Security Act, 1980 (Act no. 65
of 1980)

30. Sub-rule 3 of Rule 15 provides
that final decision as to whether to include
or not to include the name of member of a
gang in the gang and gang-chart shall be at
the discretion of the Commissioner of
Police/District Magistrate, as the case may
be.

31. Rule 16 provides the manner and
the recommendations to be made while
forwarding the gang chart Rule 16 reads
thus:

16. The following manner shall be
followed in the forwarding of Gang-Chart:

(1) Forwarding of the gang-chart by
the Additional Superintendent of Police:
The Additional Superintendent of Police
will not only take a quick forwarding action
in the case but he will duly peruse the
gang-chart and all the attached forms;
and when it is satisfied that there is a
just and satisfactory basis to pursue the
case, only then will he forward the letter
along with the recommendation given
below
on
the
gang-chart
to
the
Superintendent
of
Police/Senior
Superintendent of Police.
1 All. Ambuj Parag Dubey & Ors. Vs. State of U.P. & Ors.
341

"Throughly studies the gang-chart and
attached evidence. The basis of action
under the Uttar Pradesh Gangsters and
Anti-Social Activities (Prevention) Act,
1986 exists. Accordingly, forwarded with
recommendation."

(2) Forwarding of the gang-chart by
the district police in-charge: When the
gang-chart along with all the Forms is
received by the Senior Superintendent of
Police/Superintendent of Police with the
clear recommendation of the Additional
Superintendent of Police, he will also
thoroughly analyze all the facts and
when it is confirmed that all the
formalities of the Act have been fulfilled
and there is a legal basis for taking
action in the case, then he should forward
the gang-chart to the Commissioner of
Police/District Magistrate stating that: "I
have duly perused the gang-chart and
attached forms and I am fully satisfied that
all the particulars mentioned in the case are
correct and there is a satisfactory basis for
taking action under the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention)
Act
1986.
Accordingly,
approved"
(3) Resolution of the Commissioner of
Police/District Magistrate: When the gangchart is sent to be the Commissioner of
Police/District Magistrate along with all the
Forms, all the facts will also be thoroughly
perused
by
the
Commissioner
of
Police/Districts Magistrate and when he is
satisfied that the basis of action exists in
the case, then he will approve the gangchart stating therein that: "I duly perused
the gang-chart and attached Forms in the
light of the evidence attached with the
gang-chart, satisfactory grounds exist for
taking action under the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986. The gang-chart is
approved accordingly."

It is noteworthy that the words written
above are only illustrative. There is no
compulsion to write the same verbatim but
it is necessary that the meaning of approval
should be the same as the recommendations
written above, and it should also be clear
from the note of approval marked.

32. Satisfaction of the competent
authority only means that the competent
authority must be in fact satisfy and not a
dishonest satisfaction, which will be no
satisfaction
at
all.
The
satisfaction
contemplated by the Gangster Rule is
satisfaction in point of fact on the materials
placed before the competent authority. The
satisfaction of the competent authority
referred to under the Rule is not with
respect to the allegations levelled against
the gangster but the satisfaction is confined
to those allegations that the accused can be
prosecuted
under
the
Gangster
Act.
Whatever may be the nature of charge
against the accused, the satisfaction of the
competent authority should be with regard
to that the materials placed before him and
the nature of the accused indulging in
community antisocial activities. It is
expedient to sanction prosecution under the
Gangster Act.

33. The expression satisfied is much
narrower than ''application of mind'. The
competent authority is not to apply his
mind and satisfy himself as to whether the
material placed before him would be
sufficient for convicting the accused under
the Gangster Act. The satisfaction is
confined within a narrow domain based on
the materials placed before the competent
authority, the authorities forwarding the
gang chart is satisfied that the accused
should be prosecuted under the Gangster
Act. The expression satisfaction is not
satisfaction on evidence but a prima facie
342 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction based on the representations of
the nodal authority and the district police
that the accused should be prosecuted
under the Gangster Act.

34. Rule 17 mandates that the
competent authority is bound to exercise its
own independent mind while forwarding
the gang chart and should not be on a preprinted rubber seal gang chart. Rule 17
reads thus:

17 (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.

35. Rule 18 provides that gang chart
shall be sent only in the manner as given in
Form No. 1 of these rules.

36. Rule 17 and 18 would have to be
read together. Gang chart has to be sent in
the
prescribed
Form
No.
1.
The
endorsement to be made by each of the
authorities have also been specified in Rule
16. The rule itself prescribes and mandates
a printed Form. Rule 17 merely mandates
that
the
competent
authority
while
approving the gang chart should not be
swayed by the recommendation of the
police authorities mechanically but should
satisfy himself independently that the
grounds for prosecution is made out. The
satisfaction at that stage is subjective and
does not rest upon any evidence. The
competent authority has to satisfy that the
materials placed with the gang chart calls
for prosecution. The stage of collecting
evidence follows thereafter. The scope of
judicial review is miniscule, the accused
cannot
challenge
the
FIR
without
challenging the gang chart. The question as
to whether the antisocial activities of the
proposed accused is that of a gang or
gangster is a matter of investigation.

37. Rule 22 clarifies and specifies that
a single act/omission will also constitute an
offence under the Act and a first
information report must be registered on
the basis of a single case. Rule 22(1) reads
thus:

22(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.

38. Further, sub-rule (2) of Rule 22
necessarily provides prosecution on certain
class of cases, on a single offence which
includes Section 302, 376D, 395, 396 or
397 of Indian Penal Code out of the
offences mentioned in sub-clause (i) or
clause (b) of Section 2 of the Act.

39. Rule 27 clarifies that if the
accused are minors, and their age is less
than 18 years, then they should not be
included in the gang chart, however, the
proviso to the Rule clarifies that if the act
of juvenile falls under the category of
offences mentioned in Rule 22 and his age
is more than 16 years, then action can be
taken against him. Rule 27 reads thus:

27. If the accused are minors, and their
age is less than 18 years, then they should
not be included in the gang-chart:

Provided that if the act of a juvenile
falls under the category of offences
1 All. Ambuj Parag Dubey & Ors. Vs. State of U.P. & Ors.
343
mentioned in rule 22 and his age is more
than 16 years, then action can be taken
against
him
under
the
relevant
provisions of the Act, subject to the
decision of the District Level Supervision
Committee mentioned in rule 64.

40. Reverting to the facts of the case
in hand, the gang leader and the members
of the gang have been charge-sheeted in
the base cases shown in the gang chart.
But that alone is not the basis for
prosecution under Gangster Act, the Act
provides for prosecution of such persons
for engaging in anti-social activities
which has been made an offence under
the Gangster Act. The gang leader claims
to be a practising lawyer, one of the gang
members is well educated, but that would
not mean that they are not indulging in
anti social activities for worldly gain. The
Gangster Rules merely spells out the
guiding principle to lodge prosecution.
The steps of collecting evidence follows
thereafter.

41. The submission of the learned
counsel for the petitioners that there was
no
''discussion'
by
the
competent
authority with the police officers before
approving the gang chart would not be
fatal to the prosecution of the petitioners.
The expression ''discussion' has to be
followed mandatorily by the competent
authority in every case does not follow
from reading of the Rule, though the rule
employs the word ''shall'. The Gangster
Rule no where mandates the consequence
of not following ''discussion' by the
competent authority. In our opinion the
rule mandating discussion is directory. It
is left to the discretion of the competent
authority, having regard to the material
placed before him for approval of the
gang chart. In a case, on the materials, the
competent authority is convinced and
prima facie satisfied that a case for
prosecution is made out he may approve
the gang chart bypassing discussion with
the police officials. But in a case where
the competent authority is not convinced
or in two mind, on the material placed by
the police authorities, the competent
authority may necessarily decide to call
for a discussion to prima facie satisfy
himself that prosecution is warranted.
The FIR that follows the approval of the
gang chart cannot be faulted or quashed
merely for want of discussion.

42. The purpose of the Gangster Act
is to check the antisocial activities of
gangster. The anti-social activity need not
necessarily be violent. The court is not
oblivious of the fact that for temporal and
worldly gain, the modus operandi of a
gangster can be effected on merely a
phone call or through a messenger to
intimidate or coerce a resident to part
with property or demand ransom. There is
no
overt
act
of
violence,
but
it
tantamounts
to
organised
antisocial
activity. It is pleaded by the petitioners
that in one of the base case, the
complainant has given her affidavit to
withdraw
the
case
against
the
accused/gang member. The conduct of
the complainant in handing over the
affidavit to the petitioners could appear to
be a voluntary act, but at the same time
the act could be resting upon tacit threat,
intimidation or coercion by the gang. It is
to be gone into during investigation. The
petitioners
would
have
to
face
prosecution.

43. In view thereof, the writ
petitions being devoid of merit are,
accordingly, dismissed.
----------
344 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 344
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 20563 of 2019

Gayyur Hasan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Nipun Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Constitution of India,
1950.-.Article 226-Criminal
Procedure
Code, 1973 - Sections 110,111 & 116 -
Prevention of Damage to Public Property
Act,
1984-Section
3/4-Violation
of
principle of natural justice-Petitioners
were not given an opportunity to defend
themselves with regard to contents of
the notice-Show cause notice was not
issued prior to issuing of the impugned
notice cum order-Proceedings u/s 110
Cr.P.C. was initiated on the strength of a
solitary
case
u/s
3⁄4 Prevention
of
Damage to Public Property Act, 1984,
that single case would not make the
petitioners habitual offender.(Para 1 to
12)

B. Since the person to be proceeded
against has to show cause, it is but
natural that he must know the grounds for
apprehending a breach of the peace or
disturbance of the public tranquility at his
hands. Although the section speaks of the
'substance of the information' it does not
mean the order should not be full. It may
not repeat the information bodily but it
must give proper notice of what has
moved the Magistrate to take the action.
(Para 10)
The writ petition is allowed. (E-6)

List of Cases cited:

1. Mohan Lal Vs St. of U.P.(1977) All Cri. 333

2. Madhu Limaye Vs S.D.M. Mongyr (1971) AIR
2486

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Syed Waiz Mian, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioners and learned
A.G.A. for the State.

2. Petitioner by the instant petition is
seeking quashing of the impugned notices
under section 110 of the Code of Criminal
Procedure, 1973 (for short ''Code') dated
01.07.2019, issued by the third respondent,
Sub
Divisional
Magistrate,
Kairana,
District Shamli.

3. The conduct of the Staterespondent in not cooperating with the
present proceeding is writ large, that inspite
several opportunities counter affidavit was
not filed, accordingly, vide order dated
14.09.2022, the Court was restrained to
impose Rs. 10,000/- cost on the Staterespondent. Counter affidavit on behalf of
the third respondent thereafter has been
filed.

4. The thrust of the argument of
learned counsel for the petitioner rests on
two assertions, viz, that the notice under
Section 110 of the Code is in violation of
the principle of natural justice as no show
cause was issued prior to issuing of the
impugned notice cum order. Further,
proceedings under Section 110 of the Code
was initiated on the strength of a solitary
case being Case Crime No. 52 of 2019,
under section 3/4 Prevention of Damage to