# Anil Saha v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-28
- **Case number:** Criminal Misc. Writ Petition No. 6693 of 2021
- **Bench:** Mahesh Chandra Tripathi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-saha-v-state-of-u-p-ors-47617
- **Pages:** 7

## Headnote

Law
-
Constitution
of
India,1950 - Article 226 - U.P. Gangsters
and Anti-Social Activities (Prevention)
Act,1986 - Sections 2/3-Quashing of FIRCase under the Act 1986 may not be
registered on the basis of single criminal
antecedent,
rather
the
condition
precedent is that the ingredients for
registration of case under above the Act
ought to be fulfilled as per section 2(c),
2(b) of the Act-In the present case,
offence against petitioner is within above
category of offences and gang with its
gang leader and members have been
committing these offences for which this
registration of case crime number is
there-the case does not fall in all the
categories recognized by the Apex Court
which may justify their quashing-there
appears
to
be
sufficient
ground
for
investigation-Hence,
no
indulgence
is
required.(Para 1 to 14)
320 INDIAN LAW REPORTS ALLAHABAD SERIES
The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1 All. Anil Saha Vs. State of U.P. & Ors.
319
document of title or the order has not been
passed by the competent court, the same
may be expunged in the proceeding under
Section 33/39 of LR Act treating them to
be a clerical mistake. In the cited case the
original patta and the allotment resolution
was not produced in original. Similarly in
this case, the order dated 10.09.1969 has
not been produced by the petitioner.

25. In Sri Ram Vs. Gaon Sabha4
and Chandra Datt Vs. State of UP the
lower courts have also held that if for the
sake of argument it is presumed that the
order
would
have
been
passed
by
consolidation court the question arises as
to whether the consolidation court has
right to deal with the land of the Gram
Samaj? The answer is, No, because the
Gram Samaj land is not included under the
definition of ''holding' when the records
were under the revenue authorities, this
order was passed. The lower courts have
also referred some judicial precedents
such as Vikram Singh Junior High
School
Vs.
District
Magistrate,
Farrukhabad6, S.P.
Chengal Daria
Naidu Vs. Jaggannath in which it is held
that any judicial order obtained by playing
fraud is null and void. They do not confer
any right. Such fraudulant entry can be
removed at any time. Thus, this Court is of
the considered view that the notification
under Section 4(1) of CH Act was no bar
in exercising the jurisdiction by the
revenue authorities under Section 33/39 of
LR Act as the matter was not open for the
intervention of the consolidation courts.
The impugned orders do not suffer from
any manifest error. Therefore, issue no.3 is
decided against the petitioner.

26. On the basis of the aforesaid
discussion it is concluded that this petition
is meritless and deserves to be dismissed.
ORDER

27. This writ petition is dismissed
with costs.
----------
(2023) 1 ILRA 319
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Writ Petition No. 6693 of 2021

Anil Saha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant Rai, Ms. Vishakha Pande, Sri
Rakesh Pande (Sr. Adv.)

Counsel for the Respondents:
G.A.

A.
Criminal
Law
-
Constitution
of
India,1950 - Article 226 - U.P. Gangsters
and Anti-Social Activities (Prevention)
Act,1986 - Sections 2/3-Quashing of FIRCase under the Act 1986 may not be
registered on the basis of single criminal
antecedent,
rather
the
condition
precedent is that the ingredients for
registration of case under above the Act
ought to be fulfilled as per section 2(c),
2(b) of the Act-In the present case,
offence against petitioner is within above
category of offences and gang with its
gang leader and members have been
committing these offences for which this
registration of case crime number is
there-the case does not fall in all the
categories recognized by the Apex Court
which may justify their quashing-there
appears
to
be
sufficient
ground
for
investigation-Hence,
no
indulgence
is
required.(Para 1 to 14)
320 INDIAN LAW REPORTS ALLAHABAD SERIES
The writ petition is dismissed. (E-6)

List of Cases cited:

1. Sanjay Bhati & ors. Vs St. of UP & ors.
CMWP No. 489 of 2012

2. Somvir Vs St. of UP & ors. CMWP No. 4622 of
2019

3. R.Kalyani Vs Janak C. Mehta & ors. (2009) 1
SCC 516

4. Kamlesh Kumari & ors. Vs St. of U.P. & ors.
(2015) AIR SCW 3700

5. St. of Haryana & ors. Vs Bhajan Lal &
ors.(1992) Supp. 1 SCC 335

6. M/s Neeharika Infra Pvt. Ltd. Vs St. of
Mah.(2021) AIR SC 1918

7. Leelavati Devi @ Leelawati & anr. Vs the St.
of U.P., SLP (Cri.) No. 3262 of 2021

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J. & Hon'ble Subhash Vidyarthi, J.)

1. We have heard Shri Rakesh Pande,
learned Senior Advocate assisted by Shri
Prashant Rai and Ms. Vishakha Pande,
appearing for the petitioner and Shri
Manish
Goyal,
learned
Additional
Advocate General assisted by Shri S.A.
Murtaza, learned A.G.A. for all the
respondents.

2. This petition under Article 226 of
Constitution of India has been filed by Anil
Saha with a prayer for issuing writ, order or
direction in the nature of certiorari,
quashing the impugned First Information
Report dated 26.06.2021 registered as Case
Crime No.0558 of 2021 under Sections 2
and 3 (1) of the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 at Police Station Dadri, District
Gautam Budh Nagar. Further prayer has
been made not to arrest the petitioner in the
aforesaid case.

3. It appears that the petitioner is a
qualified architect and business man. He
has
constructed
several
residential
complexes in Gautam Budh Nagar and
New Delhi. A company was formed in the
name of 'Garvit Innovative Promoters
Limited' (in short, the Company), which
was duly registered under the Companies
Act,
1956.
The
petitioner
was
not
associated with the said company as
Director, Promoter, Signatory, Shareholder
or in any other capacity. The said company
decided to start a business of E-bikes/Taxi
Bikes under a "BIKEBOT" scheme in
August 2017 and under this Scheme,
anybody could invest Rs.62,100/- and in
lieu thereof, he would receive monthly
profit of Rs.4,590/- per month for a period
of 12 months and Rs.5,175/- per month for
reimbursement/repayment of the invested
amount. Thus, the company was required to
pay Rs.9,765/- per month against an
investment of Rs.62,100/-. The aforesaid
amount was to be paid monthly for a period
of 12 months. The investor was also
required to enter into written agreements
with the Company in this regard. More than
2,43,000 persons invested under the said
Scheme. Consequently, the company raised
a sum of Rs.2,500/- crores under the Bike
Bot Scheme. From the money so raised,
10,000/- Bikes, 129 Luxury Cars like
Fortuner, Mercedes, Jaquar etc. and 700
Cars of middle segment were purchased
and the same are stated to be running as
taxis in various cities. The Company
suffered some losses, as a result whereof,
rumours were spread that its entire business
had collapsed and the Company was not in
a position to refund the money to the
investors, according to the agreement
entered into between them. Subsequently,
1 All. Anil Saha Vs. State of U.P. & Ors.
321
on account of rumours and certain fake and
malicious newspaper reports, more than 70
FIRs were lodged in District Gautam Budh
Nagar by the investors of the Scheme. On
the basis of the FIRs, the property of the
Company has been seized as also the Bank
Accounts of the Company and its Directors.
It also appears that one FIR was registered
as Case Crime No.510 of 2019 at P.S.
Dadri, District Gautam Budh Nagar under
Sections 420, 409, 201, 467, 468, 471 and
120B IPC on 19.5.2019. The petitioner was
not named in the said FIR but he was
arrested in the case on 01.3.2021 on the
allegation that certain amount had been
transferred to the account of the petitioner
by the said Company. The petitioner
approached this Court and preferred
Criminal Misc. Bail Application No.19568
of 2021 (Anil Saha vs. State of UP) in
which learned A.G.A. was directed to file
response in the matter. In the meanwhile,
impugned FIR has been lodged.

4. In this backdrop, learned Senior
Counsel for the petitioner argued that the
petitioner is not named in the FIR dated
19.5.2019 registered as Case Crime No.510
of 2019. The petitioner is neither a
Director,
Promoter,
Signatory
or
Shareholder
of
the
company
nor
a
beneficiary of the 'Bike Bot Scheme' in any
way
floated
by
the
said
Company.
However, the Investigating Officer had
given an application under Section 167
Cr.P.C. for remand on 01.3.2021, wherein,
it was indicated that the petitioner, who is
Director of Saha Infratech Private Ltd., was
an accused in view of the fact that the
company and its sister concern company
Primex
Broadcast
Private
Ltd.
had
transferred a sum of Rs.21,67,00,177/- to
Saha Infratech. The name of the petitioner
has been included as an accused only on
the basis of surmises and conjectures. In
the year 2018, the representatives of the
said Company approached the petitioner for
taking over Saha Infratech and in this
regard, a Memorandum of Understanding
(for short, MOU) dated 19.9.2018 was
signed
between
two
companies.
For
acquisition of equity shares, the said
Company paid advances to the tune of
R.19,16,00,000/- to Ms/ Abet Build Tech
Pvt. Ltd. The said Company suffered losses
and eventually, the MOU dated 29.1.2019
was signed between them, whereby the
company expressed inability to complete
the transaction of acquisition of shares and
thus, agreed to utilize the advances paid to
M/s Saha Infratech Pvt. Ltd. towards
booking of flats in the group housing
projects. The advance money deposited
with Saha Infratech had been utilized for
construction of its ongoing project.

5. Learned Senior Advocate further
submits that in the impugned FIR the
allegations of fraud and cheating have been
levelled against Sanjay Bhati and other
named accused. There is no allegation of
violence, threat or show of violence or
intimidation or coercion or otherwise
against the petitioner either singly or
collectively as a constituted member of a
gang and as such, no offence is made out
against the petitioner under Section 2 read
with Section 3 (1) of the Act. The concept
of violence, threat or show of violence or
intimidation or coercion is the necessary
ingredients under Section 2 (b) of the Act
and no offence is made out against the
petitioner on the basis of sole allegation
relied upon for treating the petitioner as
Gang or Gangster. In all the FIRs, the
allegations of fraud and cheating have been
levelled against Sanjay Bhati, who is
Managing Director of the said Company.
There is no material on record to indicate
that the petitioner could be treated as
322 INDIAN LAW REPORTS ALLAHABAD SERIES
member of the gang. In the impugned FIR,
allegations have been levelled that the
accused as an organized members of the
gang was committing forgery under a
criminal conspiracy and duped innocent
investors and money and as such, it was not
in the public interest that he would remain
free. The charge sheet has been submitted
in most of the cases relating to Bike Bot
Scheme. Hence, protection has been
claimed.

6. Per contra, Shri Manish Goyal,
learned Additional Advocate General has
vehemently opposed the writ petition
with this contention that huge amount
invested by the investors in the Scheme
in question was parked by the Directors
of said company & its sister companies in
the account of Saha Infratech Pvt. Ltd. &
its sister companies only to defraud the
investors. If there was MOU between said
company and Saha Infratech Pvt. Ltd. for
sale of entire share-holding, the value of
shares must have been cleared in the
agreement itself. It was further submitted
that aforesaid MOU dated 19.9.2018 was
not meant for acquisition of entire shareholding. Due to this reason, agreement
could
not
materialize
and
further
agreement was entered into between the
parties
on
28.1.2019,
changing
the
purpose of payment. It was further
contended that since the amount of Rs.21
Crores said to have paid to Saha Infratech
Pvt. Ltd., the company was only for the
purpose of parking the aforesaid amount
and thus, aforesaid MOUs were prepared
only for the purpose to show the paper
work. The intention of the parties was
only to park the investors' amount in the
garb of acquiring of the share-holding of
Saha Infratech & its Sister Companies. In
similar matter, a coordinate Bench of this
Court has already dismissed the writ
petition1 on 16.7.2021 with following
observations:-

"In our considered opinion, only two
points arise for our consideration. One,
whether the criminal prosecution lodged
against
the
petitioners
under
the
provisions of the Indian Penal Code and
the U.P. Gangster & Anti-social Activities
(Prevention) Act, 1986 are barred in view
of Section 5 of the Indian Panel Code.

The second and ancillary question
which arises is the forum for trial of the
petitioners, in case, it is held that the
allegation against them are liable to be
looked into under the provisions of the
Companies Act, 2013 in view of Sections
36 and 337 thereof.

The first argument is not tenable as
Section 5 I.P.C., read in conjunction with
the provisions of the General Clauses Act,
provides that a person cannot be punished
twice for the same offence. Section 5, per
se, does not provide as to which Act, a
general Act or a Special Act is to be used
for prosecuting an offender. In any case,
admittedly,
petitioners
are
not
being
prosecuted under the Companies Act, 2013.
The choice in this regard is that of the
prosecutor and not that of the person being
prosecuted. It is also settled vide Emperor
Vs. Jiwa Lal, AIR 1932 All 69 that where
an offence falls strictly within the purview
of a special Act, it is appropriate to
prosecute the offender under the Special
Act. The petitioners are being prosecuted
under the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 which is
undisputedly a special Act. Therefore, in
view of the above facts and circumstances,
petitioners are not entitled to any relief on
the basis of the argument raised.

Insofar as the second question is
concerned, it no doubt appears that both the
Gangsters Act and the Companies Act 2013
1 All. Anil Saha Vs. State of U.P. & Ors.
323
provide
for
trial
by
special
courts
constituted there under. A conflict, if any,
can arise only in the case of simultaneous
prosecution and trial both under the
Gangsters Act and the Companies Act,
2013. Such is not the position in the case at
hand and therefore the second question
does not require consideration in the instant
case as it does not arise in the facts and
circumstances of the instant case.

Apart from the above, there are
specific allegations against the petitioners,
who are Directors of a Company, that they
in connivance with his other co-accused,
while running a company in the name of
GIPL have duped innocent people of crores
of rupees and have misappropriated the
same after assuring them of good returns in
the form of interest on the amount invested
as also return of the principal invested
amount.

Besides,
perusal
of
the
record
reflects that the investigation is still on
and is being conducted to establish the
complete
nexus
between
all
those
involved. The aspect of money laundering
and the petitioner's specific involvement
in the same is also being investigated.
The accused persons/petitioners are not
only the beneficiaries of the alleged
fraudulent earnings, but are also the
brains behind the business.

In our view, quashing the subject
FIR at this stage is unwarranted, keeping
in view the allegations and the alleged
fraud committed.

The writ petition is accordingly,
dismissed."

7. Shri Manish Goyal further
submitted that the petitioner was arrested
in Case Crime No.510 of 2019 on
01.3.2021. Consequently, he moved Bail
Application2 and the same has been
rejected by learned Single Judge of this
Court
07.10.2021
with
following
observations:-

"In this matter, as is evident from the
record, although applicant is not named
in the F.I.R. nor he is the Director, shareholder, signatory of G.I.P.L. & its Sister
Companies, but keeping in view this fact
that MOU entered into between the
parties did not materialize, huge amount
of investors invested in the Scheme has
been
diverted
in
the
account
of
applicant's company and same has not
been returned to G.I.P.L. on noncompletion of the agreement entered into
between the parties nor the flats shown in
the affidavit have been handed over to the
G.I.P.L. & its Sister Companies, thus,
keeping in view the entire facts and
circumstances of the case; the large
amount of money invested by the
investors, who are mainly the retired
persons having life long savings and
invested hard earned money, in the
Scheme as well as the transactions made
in the account of the applicant's Company
were nothing but sham transactions as
also the fact that numerous F.I.R.s have
been lodged against the applicant by the
investors, the Court is of the view that the
applicant cannot be allowed on bail in the
aforesaid crime number / F.I.R. simply on
the basis of order passed in respect of coaccused referred here-in-above.

Bail application of the accusedapplicant Anil Saha is hereby rejected."

8. It is further submitted that there is no
provision that case under the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986, may not be
registered on the basis of single criminal
antecedent. Rather, the condition precedent
is that the ingredient for registration of case
under above Act ought to be fulfilled as per
324 INDIAN LAW REPORTS ALLAHABAD SERIES
definition of "gangster" given in Section 2
(c) and "gang" given under Section 2 (b) of
Act. The offence for which this Act is in
effect are given in Section 2 (b) (I):-
"offences punishable under Chapter XVI or
Chapter XVII or Chapter XVIII of the
Indian Penal Code (Act No. 45 of 1860), or
....(i.e. ii to xv)". Hence, as has been
propounded by Division Bench of this
Court in Writ Petition3, the point of single
offence as a basis for registering a case
under Act No. 7 of 1986 is of no effect,
rather, the condition of offences given
under Section 2 (b) (i) to (xv) of Act, being
committed by gang or member of gang
amounting to gangster i.e. defined in subsection (c) of Section 2 of the Act. Hence,
in the present case, offence against
petitioner is within above category of
offences and gang with its gang leader and
members have been committing these
offences for which this registration of case
crime
number
is
there.
Hence,
no
indulgence is required.

9. As has been propounded by Division
Bench in the case of Somvir as well as in
many judgments by this Court that even a
single case, if fulfils the category of offences
given under Section 2(b) (i) to (xv) of Act and
is being committed by gang defined under
Section 2 (b) or gangster defined under
Section 2 (c) of the Act may be basis for
registration of case crime number for offence
punishable under Section 2/3 of Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986.

10. So far as legal position regarding
quashing of F.I.R. is concerned, in the case of
R. Kalyani v. Janak C. Mehta and Others4,
Hon'ble Apex Court has held as under:

"(1) The High Court ordinarily would
not exercise its inherent jurisdiction to
quash a criminal proceeding and, in
particular, a First Information Report unless
the allegations contained therein, even if
given face value and taken to be correct in
their entirety, disclosed no cognizable
offence.

(2) For the said purpose, the Court,
save and except in very exceptional
circumstances, would not look to any
document relied upon by the defence.

(3) Such a power should be exercised
very sparingly. If the allegations made in
the FIR disclose commission of an offence,
the court shall not go beyond the same and
pass an order in favour of the accused to
hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil
dispute, the same by itself may not be a
ground
to
hold
that
the
criminal
proceedings should not be allowed to
continue."

11. The said decision has also been
followed by the Apex Court in the case of
Kamlesh Kumari and Ors. v. State of
U.P. and Ors.5

"The law regarding sufficiency of
grounds which may justify quashing of
F.I.R. in a given case is well settled. The
court has to eschew itself from embarking
upon a roving enquiry into the last details
of the case. It is also not advisable to
adjudge whether the case shall ultimately
end in submission of charge sheet and then
eventually in conviction or not. Only a
prima facie satisfaction of the court about
the existence of sufficient ingredients
constituting the offence is required in order
to see whether the F.I.R. requires to be
investigated or deserves quashing. The
ambit of investigation into the alleged
offence is an independent area of operation
and does not call for interference in the
same except in rarest of rare cases."
1 All. Rajpal Singh Vs. State of U.P. & Ors.
325

12. Hon'ble Apex Court in State of
Haryana and others vs. Bhajan Lal and
others6; M/s Neeharika Infrastructure
Pvt. Ltd. Vs. State of Maharashtra7, as
well as in Leelavati Devi @ Leelawati &
another vs. the State of Uttar Pradesh8
has further reiterated above principle.

13. The statements raised by learned
counsel for the petitioner called for
determination of question of fact, which
may be adequately discerned either through
proper
investigation
or
it
may
be
adjudicated upon only by the trial court and
even the statements made on points of law
can also be more properly gone into by the
trial Court in case charge-sheet is submitted
in this case. The perusal of record makes
out prima facie offence at this stage and
there appears to be sufficient ground for
investigation in the case. This Court does
not find any justification to quash the
impugned FIR or proceeding against the
accused-petitioner arising out of above case
crime number as the case does not fall in all
the categories recognized by the Apex
Court, which may justify their quashing.
Moreover,
in
the
similar
matter,
a
coordinate Bench of this Court has already
dismissed Criminal Misc. Writ Petition
No.489 of 2021 on 16.7.2021.

14. Accordingly, the writ petition is
dismissed.
----------
(2023) 1 ILRA 325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2022

BEFORE

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

Criminal Misc. Writ Petition No. 10571 of 2022
along with Crl. Misc. Writ Petitions No. 11425 of
2021 & 11148 of 2021

Rajpal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Bahpai

Counsel for the Respondents:
G.A., Sri Gaurav Pundir

A. Criminal Law - Constitution of India,
1950 - Article 226 - Indian Penal Code,
1860-Sections 420 & 406-Securitization
and Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002-Section 13(2), 13(4), 14 & 17-Debt
Recovery Tribunal Act,1993-Section 19Quashing of FIR-Default in repayment of
loan-Assets seized by Bank in proceedings
under the Act, 2002 was stolen due to
negligence of officials of bank-complaint
filed by the complainant is an intimidatory
tactic and afterthought-the officials of the
financial institution/bank are
provided
immunity from prosecution u/s 32 of
SARFAESI Act-the issue relates to the
exercise of remedy relating to a secured
assests as defined in the Act, cannot be in
dispute-SARFAESI Act is a complete Code
in itself which provides the procedure to be
followed
by
the
secured creditor
by
invoking section 13 of the Act-Hence,
criminal
proceedings
would
not
be
sustainable in the present matter-direction
issued-FIR quashed.(Para 1 to 60)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Priyanka Srivastava & anr. Vs St. of U.P &
ors..

2. K. Virupaksha & anr. Vs St. of Karn. & anr.

3. St. of Har. & ors. Vs Bhajan Lal & ors..

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