# Ankit Sharma @ Ankit Kumar v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-09
- **Case number:** Crl. Misc. Writ Petition No. 8164 of 2022
- **Bench:** Rajesh Singh Chauhan, Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-sharma-ankit-kumar-v-state-of-u-p-ors-47948
- **Pages:** 7

## Headnote

(A) Criminal Law - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2(b)(i) & 3 - Indian
Penal Code, 1860 - Sections 41, 411,
413, 419 & 420 - The U.P. Gangsters
and Anti-Social Activities (Prevention)
Rules, 2021 - Rule 5(C), Rule 10 & Rule
8 - Government Order - Only those
criminal cases shall be included in the
gang chart in which the police has
prepared the charge sheet and the
same has been filed before the court
concerned - In case of any misuse by
the authorities, the concerning incharge
of the police station as well as Senior
Superintendent
of
Police/
Superintendent of Police Incharge of
the concerned Districts shall be held
responsible. (Para -13)

Quashing of F.I.R. - no charge-sheet has been
filed - before making compliance of Rule 10 of
Rules of 2021, the gang-chart has been filed -
wrong impression given to Court that chargesheet has been filed - action under Rule-8(5)
- on discovering an adverse situation, the
Incharge of Police Station/Station House
Officer/Inspector shall be held liable for
negligence under departmental and criminal
proceedings. (Para -12)

HELD:-Impugned F.I.R. under Section 2(b)(i)
and 3 of Gangsters Act quashed. Chargesheet filed against the present petitioner,
giving liberty to the competent authority to
take a fresh decision and do the needful.
(Para -15, 16)

Writ Petition allowed. (E-7)

List of Cases cited:-

Master @ Ramzan & anr. Vs St. of U.P. & ors.,
Writ Petition No.22007 (M/B) of 2020

## Text

988 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Supreme Court is the law of
land. Notably, the petitioner is not having
any prior criminal history and keeping in a
view the fair stand of the State-respondent
that the proper co-operation of the
petitioner is very much required in this
serious issue, we think it proper to observe
that a proper recourse, as per law, should be
adopted by the investigating agency.

37. So far as submission of Dr. L.P. Misra
regarding
added
sections
during
investigation to subvert the procedure
established by the law is concerned, we are
of the opinion that since those sections are
said to have been added after collecting the
relevant
material/evidences
and
the
investigation is still in progress, therefore,
we cannot accept the aforesaid submission
of Dr. L.P. Misra. However, we legitimately
expect that the Investigating Officer shall
conduct and conclude the investigation
strictly in accordance with law and also in
the light of settled proposition of law of the
Apex Court from Joginder Kumar (supra),
Lalita Kumari (supra) till Satender
Kumar Antil vs. CBI and others, Special
Leave to Appeal (Criminal) No.5191 of
2021 as it is needless to say that all
concerned are duty bound to follow the
directions and guidelines of the Apex Court
issued from time to time in catena of cases.

38. Before parting with, we make it
clear that since we are not entertaining this
petition, in the light of the dictum of the
Apex
Court
in
re;
M/s
Neeharika
Infrastructure Pvt. Ltd. (supra), for the
reason that bare perusal of the allegations
of the FIR and the material/evidences
which are said to have been collected
during investigation, as recital to this effect
has been made in the counter affidavit of
the State, disclose, prima facie, commission
of cognizable offences subject to final
outcome of the investigation, therefore, our
aforesaid observations may not be taken
adversely against the present petitioner nor
it may be treated as protection to the
petitioner in any manner whatsoever. The
investigating agency or any competent
court below should not be influenced from
the aforesaid observations of this judgment.
The fair and impartial investigation is a
bare minimum expectation of this Court
and it is also expected from all concerned
that the settled proposition of law is
followed.

39. In view of what has been
considered above, we hereby dismiss this
writ petition.

40. However, it is always open for the
petitioner to take appropriate legal recourse
by filing his appropriate applications under
Section 438 Cr.P.C. or any other application
before the competent court of law and if
any appropriate application is filed before
the learned court below by the petitioner,
the same shall be considered and disposed
of with expedition, without giving any
unnecessary adjournment to any of the
parties.

41. No order as to cost.
----------
(2022) 11 ILRA 988
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Writ Petition No. 8164 of 2022

Ankit Sharma @ Ankit Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. Ankit Sharma @ Ankit Kumar Vs. State of U.P. & Ors.
989
Counsel for the Petitioner:
Adarsh Kumar Maurya, Ajay Kumar Shukla,
Kanhaiya Yadav, Nida Navi, Rajendra Kumar
Dwivedi, Ram Chandra Sharma

Counsel for the Respondents:
G.A.

(A) Criminal Law - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2(b)(i) & 3 - Indian
Penal Code, 1860 - Sections 41, 411,
413, 419 & 420 - The U.P. Gangsters
and Anti-Social Activities (Prevention)
Rules, 2021 - Rule 5(C), Rule 10 & Rule
8 - Government Order - Only those
criminal cases shall be included in the
gang chart in which the police has
prepared the charge sheet and the
same has been filed before the court
concerned - In case of any misuse by
the authorities, the concerning incharge
of the police station as well as Senior
Superintendent
of
Police/
Superintendent of Police Incharge of
the concerned Districts shall be held
responsible. (Para -13)

Quashing of F.I.R. - no charge-sheet has been
filed - before making compliance of Rule 10 of
Rules of 2021, the gang-chart has been filed -
wrong impression given to Court that chargesheet has been filed - action under Rule-8(5)
- on discovering an adverse situation, the
Incharge of Police Station/Station House
Officer/Inspector shall be held liable for
negligence under departmental and criminal
proceedings. (Para -12)

HELD:-Impugned F.I.R. under Section 2(b)(i)
and 3 of Gangsters Act quashed. Chargesheet filed against the present petitioner,
giving liberty to the competent authority to
take a fresh decision and do the needful.
(Para -15, 16)

Writ Petition allowed. (E-7)

List of Cases cited:-

Master @ Ramzan & anr. Vs St. of U.P. & ors.,
Writ Petition No.22007 (M/B) of 2020
(Delivered by Hon'ble Rajesh Singh
Chauhan, J. & Hon'ble Vivek Kumar
Singh, J.)

1. Heard Sri Rajendra Kumar
Dwivedi, learned counsel for the petitioner
and Sri Badrul Hasan, learned A.G.A. for
the State.

2. Learned counsel for the petitioner
has filed an application praying for
consideration of prayer of petitioner for
quashing of the F.I.R. bearing Case Crime
No.451 of 2022, under Section 2(b)(i) and
3 of U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 (for short
'Gangsters Act'), Police Station-Pasgawan,
District- Lakhimpur Kheri. The application
is supported with an affidavit and the same
is taken on record.

3. By means of the present writ
petition, petitioner has sought quashing of
the F.I.R. bearing Case Crime No.451 of
2022, under Section 2(b)(i) and 3 of
Gangsters Act, Police Station-Pasgawan,
District- Lakhimpur Kheri.

4. On 04.11.2022, this Court passed
the following order:-

"Heard Sri Rajendra Kumar Dwivedi,
learned counsel for the petitioner, who has
filed vakalatnama, the same is taken on
record and Sri Badruddin Hasan, learned
A.G.A. has appeared on behalf of State.

Sri Dwivedi, learned counsel for the
petitioner has preferred Rule 5(c) of The
Uttar Pradesh Gangster and Anti-Social
Activities (Prevention) Rules, 2021 to
submit that without filing the charge-sheet
in the particular case crime the gangster
act may not be imposed. In the present
case, without there being filed any chargesheet, the gangster act has been imposed
990 INDIAN LAW REPORTS ALLAHABAD SERIES
against the petitioner. He has also placed
reliance of the judgment and order dated
9.12.2020 passed by this Court, wherein
the
similar
controversy
has
been
considered and the said writ petition was
allowed on the basis of the same
submissions so raised by Sri Dwivedi in the
present case.

Learned A.G.A. has drawn attention of
this Court towards annexure no.2, which is
gang-chart, wherein it has been indicated
that the charge-sheet no.345/2022 dated
9.9.2022 has been filed before the learned
court below. He has also submitted that in
the first information report, the same fact
has been indicated. However, Sri Dwivedi
has again submitted that no such chargesheet has yet been filed before the learned
court below, may be the same has been
prepared.

Put up this case as fresh on 9.11.2022
to enable the learned A.G.A. to seek
specific instructions as to whether the
charge-sheet has been filed in Case Crime
No.123 of 2021, under Sections 41/411,
419, 420 I.P.C., P.S. Pargana Kheri.

When the case is listed next, the name
of Sri Rajendra Kumar Dwivedi and Ms.
Nida Nabi be shown as counsel for the
petitioner."

5. At the very outset, learned counsel for
the petitioner has drawn attention of this
Court towards annexure no.5 of the
affidavit filed today which is a certified
copy of the questionnaire dated 04.11.2022
issued by the learned court below wherein
it has been categorically mentioned that by
04.11.2022 no charge-sheet has been filed
in Case Crime No.123 of 2021, under
Section 41, 411, 413, 419, 420 I.P.C. Police
Station-Pasgawan,
District-Kheri.
Therefore, it is clear that till filing of the
gang-chart (annexure no.2 to the writ
petition), no charge-sheet was filed against
the petitioner in Case Crime No.123 of
2021. However, in the gang-chart, the
impression has been given as if the chargesheet has been filed on 21.08.2021.
Therefore, for seeking specific instructions,
the matter was fixed for today.

6.

Learned
A.G.A.
has
filed
instruction today and the same is taken on
record.

7. Learned A.G.A. on the basis of
instructions has stated that the charge-sheet
has been filed on 05.11.2022 before the
learned court below.

8. On being confronted the learned
A.G.A. about the aforesaid situation, he has
fairly stated that in the gang-chart it should
have been categorically indicated that
however, charge-sheet has been prepared
but the same has not been filed.

9. On being further confronted that
the date of charge-sheet has been indicated
as 21.08.2021, however, no such chargesheet has been filed on or before
04.11.2022, on that learned A.G.A. has
submitted that aforesaid documents is on
record, therefore, he has nothing to say.

10. Heard learned counsel for the
parties and perused the material available
on record.

11. For convenience, Rule 5(C), Rule
10 and Rule 8 of the U.P. Gangsters and
Anti-Social Activities (Prevention) Rules,
2021 (hereinafter referred to as 'Rules of
2021'), which have been indicated in the
affidavit, are being reproduced hereinbelow:-

"Rule-5(C)- The gang-chart shall not
mention those cases in which acquittal has
11 All. Ankit Sharma @ Ankit Kumar Vs. State of U.P. & Ors.
991
been granted by the Special Court or in
which the final report has been filed after
the investigation. However, the gang-chart
shall
not
be
approved
without
the
completion of investigation of the base
case.

Rule-10- Records of Base Cases.-(1)
Along with gang chart, the certified copy of
the charge sheet and recovery memo shall
be attached compulsorily.
(2) Where the accused is not named in the
First Information Report and document
discloses the way in which his name came
to light and if something has been
recovered, a certified copy of the recovery
memo shall be attached.

Rule 8- Stating unconfirmed or false
information is prohibited.-(1) The Incharge
of
Police
Station/Station
House
Officer/Inspector shall not mention the
cases as Part Trial or Partial Trial (PT)
without ascertaining the up-to-date status
of the cases in the gang-chart.

(2)
No
unconfirmed
or
false
information shall be entered in the gangchart.

(3) The latest status of the cases
against the gang, which are being shown in
the gang-chart, regarding their pendency
in the Special Court, the convictions or the
stage at which they are in the Court, must
be clearly mentioned

(4) The responsibility of recording the
correct and true information shall lie on
the concerned Incharge of Station/ Station
House Officer/Inspector

(5)
On
discovering
an
adverse
situation,
the
Incharge
of
Police
Station/Station
House
Officer/Inspector
shall be held liable for negligence under
departmental and criminal proceedings."

12. In light of aforesaid facts and
circumstances and also from the perusal of
the aforesaid provisions of law i.e. Rule
5(C), Rule-10 and Rule-8 of Rules of 2021,
it is clear that before making compliance of
Rule 10 of Rules of 2021, the gang-chart
has been filed. Even the wrong impression
has been given to the Court that the chargesheet has been filed in the Case Crime
No.123 of 2021. Therefore, in such
circumstances, required action under Rule8(5) would be warranted which clearly
mentions that on discovering an adverse
situation,
the
Incharge
of
Police
Station/Station
House
Officer/Inspector
shall be held liable for negligence under
departmental and criminal proceedings.

13. Not only above, in an identical
circumstances, this Court vide judgment
and order dated 09.12.2020 passed in Writ
Petition No.22007 (M/B) of 2020; 'Master
@ Ramzan and Anr. Vs. State of U.P. and
Ors' has allowed the writ petition quashing
the F.I.R. in question. For convenience, the
judgment and order dated 09.12.2020
passed in the aforesaid case in being
reproduced herein below:-

1. Heard Asim Kumar Singh, learned
counsel for the petitioners and Shri
Shachindra Pratap Singh, learned A.G.A.
for the respondent State.

2. The writ petition has been filed
challenging the impugned F.I.R. No.0430
of 2020 dated 13.10.2020, under Section
3(1) of the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 (for short
'Gangsters Act') registered at Police
Station Kotwali Dehat, District Gonda.

3. The petitioners have also prayed for
quashing of the Gang Chart prepared
under the U.P. Gangsters and Anti Social
Activities (Prevention) Act, Police Station
Kotwali
Dehat,
District
Gonda
and
commanding the opposite parties to drop
the proceedings under Section 3(1) of
Gangsters Act registered at Police Station
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Kotwali Dehat, District Gonda, with all
consequential reliefs.

4. Learned counsel for the petitioners
submits that the impugned F.I.R. has been
lodged in a most arbitrary and illegal
manner without proper application of
mind.

5. It is also submitted that in the gang
chart, three criminal cases have been
shown against petitioner no.2. In case
bearing Case Crime No.156/2019, he has
been granted bail whereas so far Case
Crime No.312 of 2019 and Case Crime
No.406 of 2020 are concerned, the police
has not yet filed any chargesheet in the
concerning court.

6. Similarly, in the gang chart, two
criminal cases have been shown against
petitioner no.1. In one case bearing Case
Crime No.156/2019, he has been granted
bail whereas in other case, chargesheet has
not been filed by the police as yet.

However, on the basis of the wrong
information furnished in the gang chart, the
impugned F.I.R. has been lodged against
the petitioners.

7. It is stated that as per the
Government Order dated 2.1.2004 as well
as Circular issued by the Director General
of Police dated 24.10.2003, only those
criminal cases in which chargesheets have
been filed, shall be taken into consideration
for the purpose of invoking Gangsters Act,
1986.

8. Learned A.G.A. was granted time to
seek instructions. Learned A.G.A. on the
basis of the instructions, has filed short
counter affidavit, which is taken on record.

9. In paragraphs 5,6 and 7 of the short
counter affidavit, it has been stated that the
police after completing investigation, had
filed the chargesheet in Case Crime No.156
of 2019 before lodging of impugned F.I.R.,
however in Case Crime No.312 of 2019, the
chargesheet has been prepared by the
police and has been submitted in the
concerning court on 4.12.2020. Similarly,
in Case Crime No.406 of 2020, the police
has prepared the chargesheet which has
been submitted before the court concerned
on 4.12.2020. The relevant paragraphs are
reproduced as under :-

"5. That it is relevant to mention here
that after completion of investigation in
Case Crime No.156 of 2019 registered at
Police - Kotwali Dehat, District Gonda
under Sections 323, 504, 307 and 302 IPC,
7 CLA Act, charge sheet dated 31.05.2019
was forwarded and received by the
concerned Court on 12.06.2019.

6. That in Case crime No.312 of 2019,
registered at Police Kotwali Dehat, District
Gonda, under Sections 504, 506 IPc,
chargesheet
dated
30.11.2020
was
forwarded and received by the concerned
court on 04.12.20202. Phototstat copy of
the receipt dated 04.12.2020 is being filed
herewith as Annexure No.SCA-1 to this
Short Counter Affidavit.

7. That in Case Crime No.406/2020,
registered at Police - Kotwali Dehat,
District Gonda, under Sections 352, 504
and
506
IPC,
charge
sheet
dated
29.09.2020 was forwarded and received by
the concerned Court on 04.12.2020.
Photostat copy of the receipt dated
04.12.20202 is being annexed as Annexure
No.SCA-2to this Short Counter Affidavit."

10. As such, it is evidently clear that in
Case Crime No.312 of 2019 as well as
Case
Crime
No.406
of
2020,
the
chargesheets against the petitioners have
been filed in the court after lodging of the
impugned F.I.R. under Section 3(1) of the
Gangsters Act, 1986.

11. It is to be noted that the
Government
Order
dated
2.1.2004
specifically
provides
that
only
those
criminal cases shall be included in the
gang chart in which the police has
11 All. Ankit Sharma @ Ankit Kumar Vs. State of U.P. & Ors.
993
prepared the chargesheet and the same has
been filed before the court concerned.

12. It has also been mentioned in the
said Government Order that in case of any
misuse by the authorities, the concerning
incharge of the police station as well as
Senior
Superintendent
of
Police/
Superintendent of Police Incharge of the
concerned
Districts
shall
be
held
responsible.

13. Paragraphs 5 and 10 of the
Government Order dated 2.1.2004 are
relevant. Paragraphs 5 and 10 of the
Government Order dated 2.1.2004 are
reproduced :-

"5. वकसी िी वगर ह के विरूद्ध कायणिाही
करने के विए, उसके विरूद्ध केिि उन्हीं
मामि ं क आपरावधक सूची में सस्म्मवित मानन्
चावहए, विन मामि ं में पुविस द्वारा वििेचना के
उपरान्त आर प पत्र प्रेवित वकया िा चुका है।
विन मामि ं में अस्न्तम ररप टण प्रेवित की िा
चुकी है या न्यायािय द्वारा विचारर् के उपरान्त
अवियुक्त क ि िमुक्त वकया िा चुका है, उसे
आपरावधक वििरर् में सस्म्मवित न वकया िाये।

10. यहााँ यह िी स्पष्ट वकया िाता है वक
यवि वकसी िनपि में इस अवधवनयम में विये गये
प्राविधान ं के सम्बन्ध में वकसी अधीनथि
अवधकारी द्वारा अपने कतणव्य पािन की उपेक्षा
करने अििा अपने अवधकार का िुरूपय ग का
क ई मामिा प्रकाश में आता है त सम्बस्न्धत
िाना प्रिारी एिं ि िी पाये गये अवधकारी के
अिािा िनपि के िररष्ठ पुविस अधीक्षक /
पुविस अधीक्षक प्रिारी िी उत्तरिायी माने
िायेंगे।"

14. It is also to be noted that vide
Circular
dated
24.10.2003,
Director
General of Police, U.P. has issued the
directions similar to the Government Order
dated 2.1.2004 as noted above.

Relevant paragraph 2 of Circular
dated 24.10.2003 is reproduced as under :-

"2. वकसी िी वगर ह के विरूद्ध कायणिाही
करने के विए उसके विरूद्ध केिि उन्हीं
मामि ं क आपरावधक सूची में सस्म्मवित
मानना चावहए विन मामि ं में पुविस द्वारा
वििेचना के उपरान्त आर प-पत्र प्रेवित वकया िा
चुका है, विन मामि ं में अस्न्तम ररप टण प्रेवित की
िा चुकी है या न्यायािय द्वारा विचारार् के
उपरान्त अवियुक्त क ि िमुक्त वकया िा चुका
है, उसे आपरावधक वििरर् में सस्म्मवित न
वकया िाये।"

15. In view of the above, we are of the
considered view that the gang chart dated
9.10.2020, copy of which is annexed as
Annexure No.2 to the writ petition was
prepared on the wrong information with
respect to the filing of the chargesheets in
the case crime numbers mentioned therein

16. The impugned F.I.R. on the basis
of the aforesaid gang chart as such was
lodged on the basis of the wrong
information furnished in the gang chart as
noted above.
17. As such the writ petition in the given
facts and circumstances is hereby allowed.
.

The impugned F.I.R. No.0430 of 2020
dated 13.10.2020, under Section 3(1) of the
U.P. Gangsters and Anti Social Activities
(Prevention) Act, 1986 registered at Police
Station Kotwali Dehat, District Gonda as
well as gang chart dated 9.10.2020, copy of
which are annexed as Annexure Nos.1 and
2 to the writ petition are hereby quashed.

18. However, since it is submitted by
learned A.G.A. that now chargesheets in
Case Crime No.312 of 2019 and Case
Crime No.406 of 2020 against petitioners
have already been prepared and filed
before the court concerned meaning
thereby that in all the criminal cases as
mentioned in the gang chart, chargesheets
against both the petitioners have been filed
as such we hereby give liberty to the
994 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority to take a fresh decision
in this regard and do the needful."

14. In the aforesaid judgment, the
relevant provisions of law has been
considered and reference of Government
Order dated 02.01.2004 has been given in
paragraphs 11 to 14 which would also
applicable in the present case.

15. Therefore, in view of what has
been considered above, we find that the
impugned F.I.R. No.451 of 20222, under
Section 2(b)(i) and 3 of Gangsters Act,
Police
Station-Pasgawan,
DistrictLakhimpur is liable to be quashed.
Accordingly, the aforesaid F.I.R. is hereby
quashed.

16. However, since it has been
submitted by learned A.G.A. that now the
charge-sheet has been filed in the case
crime number in question against the
present petitioner, as such, we hereby
giving liberty to the competent authority to
take a fresh decision in this regard and do
the needful.

17. Accordingly, the writ petition is
allowed.

18. No order as to cost.
----------
(2022) 11 ILRA 994
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2022

BEFORE

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

Crl. Misc. Writ Petition No. 10241 of 2019

Kailash Jaiswal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Ravindra Kumar Tripathi

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Uttar Pradesh
Control of Goondas Act, 1970 - Section 3,
The U.P. Control of Goondas Rules, 1970 -
Rule 4 - 'Goonda' - on one stray incident
only petitioner could not be deemed to be
habitual offender on the basis of that
single incident - one cannot be treated to
be a habitual offender unless and until
there is recurrence of offences. (Para -
16)

Malicious proceedings initiated against petitioner
- by-pass civil decree - harass petitioner - to
release property in dispute - vests with
petitioner lawfully - in favour of district
administration - proceedings initiated merely on
lodging of a single case - second respondent
(District Magistrate) - no respect for rule and
law - become law unto himself -declines to
comply directions of State Government, orders
passed by trial court, High Court, as well as, the
Supreme Court - Failing to obtain property in
dispute in legal proceedings
-
second
respondent resorted to invoke U.P. Goondas
Act - against petitioner - misusing forum of
criminal administration.(Para -3, 17)

HELD:-Conduct of second respondent not
justified. Second respondent exposed himself to
civil and criminal consequences. Impugned
notice issued by District Magistrate quashed.
Cost of Rs. 5 lacs imposed upon second
respondent (District Magistrate). Direction to
inquire and initiate disciplinary enquiry against
then. (Para - 17, 18)

Writ Petition allowed. (E-7)

List of Cases cited:-

1. Suresh Tewari Vs St. of U.P. & ors., 2018 (5)
ALJ 1

2. Ramji Pandey Vs St. of U.P. & ors., 1981 SCC
Online All 305