# Nisar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 6 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Application u/s 482 No. 12266 of 2023
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nisar-v-state-of-u-p-anr-opp-parties-50327
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Indian Penal Code,
1860 - Sections 34, , 120-B, 212, 302 &
171)(e) - UP Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
-
Sections 2, 3 & 14(1), : - Application U/s 482
- challenging the proceedings, as well as the
charge-sheet & cognizance order - FIR -
lodged against applicant & 10 other accused
persons under Gangsters Act - accused
persons are involved in various criminal
activities - gang chart - investigation - chargesheet was filed against Applicant & 5 other
accused persons - It is argued that, in a case
of
'Mohd.
Ruksar'
filed
by
co-accused
challenging the said proceedings, chargesheet & cognizance order, this Court granted
an interim protection - further, Co-ordinate
Benches of this Court have quashed the
proceedings with regards to the said accused
persons in cases in which they were involved
in a solitary case - and the proceedings which
have been initiated on the basis of a solitary
case are not maintainable - the order of Coordinate Bench in the case relied upon by the
applicant for praying of an interim order on
the said ground does not consider - held, the
judgment & orders relied upon are an interim
order which is not binding on this Court - and
an accused can be proceeded against under
the Gangsters Act even based on a Solitary
case - accordingly, present Application is
dismissed.
(Para - 7, 10)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

## Text

6 All. Nisar Vs. State of U.P. & Anr.
567
mentioned in the order dated 04.04.2022
and the same could not be disputed by
learned counsel for the opposite party.
Thus, the present case falls under the
Category (7) of Paragraph-108 as spelt by
the Supreme Court in Bhajan Lal (supra).

21. In view of the above, proceedings
of Session Case No. 538 of 2022 (Complaint
No. 50/2022)12, under Section 354 IPC and
Section 7/8 Protection of Children from
Sexual Offences Act, 201213, Police Station
Tarkulawa, District Deoria, as well as
summoning order dated 01.11.2022 passed
by the Additional Sessions Judge/ Special
Judge, POCSO, Court No. 1, Deoria passed
in the aforesaid case, pending in the Court of
Special Judge (POCSO Act), Court No. 1,
Deoria, are quashed.

22. The application stands allowed.
----------
(2023) 6 ILRA 567
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application u/s 482 No. 12266 of 2023

Nisar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ram Pravesh Yadav, Sri Shashank Kumar

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Indian Penal Code,
1860 - Sections 34, , 120-B, 212, 302 &
171)(e) - UP Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
-
Sections 2, 3 & 14(1), : - Application U/s 482
- challenging the proceedings, as well as the
charge-sheet & cognizance order - FIR -
lodged against applicant & 10 other accused
persons under Gangsters Act - accused
persons are involved in various criminal
activities - gang chart - investigation - chargesheet was filed against Applicant & 5 other
accused persons - It is argued that, in a case
of
'Mohd.
Ruksar'
filed
by
co-accused
challenging the said proceedings, chargesheet & cognizance order, this Court granted
an interim protection - further, Co-ordinate
Benches of this Court have quashed the
proceedings with regards to the said accused
persons in cases in which they were involved
in a solitary case - and the proceedings which
have been initiated on the basis of a solitary
case are not maintainable - the order of Coordinate Bench in the case relied upon by the
applicant for praying of an interim order on
the said ground does not consider - held, the
judgment & orders relied upon are an interim
order which is not binding on this Court - and
an accused can be proceeded against under
the Gangsters Act even based on a Solitary
case - accordingly, present Application is
dismissed.
(Para - 7, 10)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

1. Mohd. Ruksar Vs St. of U.P. & anr., Application
U/S 482 No. 43408 of 2022

2. Nisar Ahmad Vs St. of U.P., Criminal Misc. Bail
Application No. 37600 of 2017, order dated
12.10.2017

3. Ritesh Kumar @ Ricky Vs St. of U.P. & anr.,
Criminal Misc. Writ Petition No. 3938 of 2021,
decided on 05.08.2021

4. Shraddha Gupta Vs The St. of U.P. & ors.:
2022 SCC OnLine SC 514

5. Salim Vs St. of U.P. in Application U/S 482 No.
11646 of 2007 decided on 13.08.2019

6. Tej Singh & ors. Vs St. of U.P. & anr. in
Criminal Misc. Application U/S 482 No. 3239 of
2005 decided on 24.04.2019
568 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Samit Gopal, J.)

1. List revised.

2. Heard Sri Shashank Kumar,
learned counsel for the applicant, Sri Ankit
Srivastava, learned counsel for the State
and perused the record.

3. This application under Section 482
Cr.P.C. has been filed by the applicant-
Nisar with the prayer to quash the
proceedings as well as charge-sheet dated
07.06.2021 & cognizance order dated
03.09.2021 in Session Trial No. 52 of 2021
arising out of Case Crime No. 352 of 2020,
under Section 2/3 of the U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986, Police Station Mauima, District
Prayagraj pending in the Court of Special
Judge, Gangsters Act, Allahabad with a
further prayer that proceeding of the
aforesaid case be stayed against the
applicant during the pendency of the
present application.

4. The facts in the present case are that a
first information report was lodged against
the applicant and 10 other persons for
offences u/s 2/3 of the U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 with the allegation that the accused
persons have formed a gang and are
involved in various criminal activities
against the public. A gang chart dated
16.02.2020 was prepared by the Sponsoring
Officer which finally got approval of the
District Magistrate on 29.05.2020. The
name of the applicant finds place at serial
no.4 in the said gang chart. As per the gang
chart, the applicant and the other accused
persons are shown to be involved in Case
Crime No. 138 of 2017, u/s 302, 120-B,
212, 34 I.P.C. and a charge-sheet no. A-70
dated
21.06.2017,
A-70
(B)
dated
22.03.2019 have been submitted against the
accused persons. The matter went for
investigation after which a charge-sheet
was submitted against the applicant and
other accused persons being a total of 05
accused persons u/s 2/3 of the U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act. It was mentioned in the
charge-sheet that the investigation in so far
as the other 06 accused persons is pending
and further proceedings u/s 14 (1) of the
Gangsters Act is also pending. The trial
court vide order dated 03.09.2021 took
cognizance upon the charge-sheet and
summoned the accused persons.

5. Learned counsel for the applicant
argued that the applicant has been falsely
implicated in the present case. It is argued
that the proceedings under the Gangsters
Act have been taken up against the
applicant on the basis of a solitary case. It
is argued that in the said case which has
been shown against the applicant, the
applicant has been granted bail vide order
dated 12.10.20217 passed by this Court in
Criminal Misc. Bail Application No. 37600
of 2017 (Nisar Ahmad vs. State of U.P.). It
is argued that the implication of the
applicant which has been shown against
him on the basis of which the first
information report of the present case has
been lodged is a false case and the
applicant is not named in the first
information report after which his name has
come into light in the said case in the
statement of Pappu Fakir an eye-witness
who was the driver of the deceased. It is
argued that the applicant is not a member
of any gang. Learned counsel has further
argued that co-accused Mohd. Ruksar
challenged the proceedings, charge-sheet
and order taking cognizance before this
Court in Application U/S 482 No. 43408 of
2022 (Mohd. Ruksar vs. State of U.P. and
6 All. Nisar Vs. State of U.P. & Anr.
569
another) in which vide order dated
23.03.2023, he has been granted interim
protection. It is argued that as such the
applicant is also entitled to protection in the
matter. Learned counsel has relied upon the
judgements of this Court in the case of Tej
Singh and others vs. State of U.P. and
another in Criminal Misc. Application U/S
482 No. 3239 of 2005 decided on
24.04.2019 and Salim vs. State of U.P. in
Application U/S 482 No. 11646 of 2007
decided on 13.08.2019 and has argued that
the co-ordinate Benches of this Court have
quashed the proceedings with regards to the
said accused persons in cases in which they
were involved in a solitary case. It is
argued that as such the proceedings of the
present case be also quashed.

6. Per contra, learned counsel for the
State opposed the prayer for quashing.
7. After hearing the learned counsels for
the parties and perusing the records, it is
evident that the applicant is an accused
named in the first information report along
with other persons and further in the
charge-sheet
which
has
come
after
investigation with regards to him and some
other accused persons on which cognizance
has been taken and they have been
summoned
by
the
trial
court.
The
investigation with regards to some other
accused persons is pending. In so far as the
argument of learned counsel for the
applicant that the applicant has been falsely
implicated in the case referred to in the first
information report and gang chart on the
basis of which the present case has been
lodged is concerned, the same cannot be
looked into by this Court. Further with
regards
to
the
argument
that
the
proceedings have been initiated on the
basis of a solitary case and as such are not
maintainable also does not hold good. A
Division Bench of this Court in the case of
Ritesh Kumar @ Ricky vs. State of U.P.
and another, Criminal Misc. Writ Petition
No. 3938 of 2021, decided on 05.08.2021
which was connected with some other
petitions took up the matter on the question
which was framed therein in paragraph 4 of
the said judgement. The same reads as
under:-

"4. The present bunch of writ petitions
along with other writ petitions are
connected
together
on
the
following
question:

"Whether a first information report
under the provisions of the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention)
Act,
1986
[hereinafter
referred to as the ''Gangsters Act'] can be
lodged and is maintainable on the basis of
involvement of the petitioner(s) / accused in
a single previous case".

8. The question as framed was
answered in paragraph 29 of the said
judgement
that
lodging
of
a
first
information report on the basis of a single
case is valid and permissible. It was further
held that the court cannot adjudicate the
correctness of the allegations in the first
information report or cases on the basis of
which the first information reports have
been lodged. Paragraph 29 of the said
judgement reads as under:-

"29. After having heard the learned
counsels for the parties and perusing the
records, it is apparent that barring
Criminal Misc. Writ Petition No. 4149 of
2021, all the above writ petitions were
argued on the common point for which the
question as framed, is answered that as per
the settled principles of law, the lodging of
a first information report on the basis of a
single case, is valid and permissible. In a
petition
under
Article
226
of
the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, this Court cannot
adjudicate
the
correctness
of
the
allegations
in
the
impugned
first
information reports or the cases on the
basis
of
which
the
impugned
first
information reports have been lodged. The
writ petitions are thus dismissed."

9. The Apex Court in the case of
Shraddha Gupta vs. The State of U.P. and
others:2022 SCC OnLine SC 514, wherein
an order refusing interference in a petition
u/s 482 Cr.P.C. for quashing of the
proceedings under the Gangsters Act was
taken up and it was posed for consideration
as to whether a person against whom a
single first information report / chargesheet is filed can be prosecuted under the
Gangsters Act, it was held that such an
accused can be prosecuted under the
Gangsters Act, 1986. Paragraph 6, 7, 8, 9
and 10 of the said judgement reads as
under:-

6. The short question which is posed
for the consideration of this Court is,
whether, a person against whom a single
FIR/charge sheet is filed for any of the
anti-social activities mentioned in section
2(b) of the Gangsters Act, 1986 can be
prosecuted under the Gangsters Act. In
other words, whether a single crime
committed by a 'Gangster' is sufficient to
apply the Gangsters Act on such members
of a 'Gang'.

7. While considering the aforesaid
issues/questions, the relevant provisions of
the Gangsters Act, 1986 are required to be
referred to. The object and purpose of
enactment of the Gangsters Act, 1986 is to
make special provisions for the prevention
of, for coping with, gangsters and antisocial activities and for matters connected
therewith or incidental thereto. Section
2(b) defines 'Gang' and Section 2(c) defines
'Gangster'.

Sections 2(b) and 2(c) read as under:

"2(b) "Gang" means a group of
persons, who acting either singly or
collectively, by violence, or threat or show
of violence, or intimidation, or coercion or
otherwise with the object of disturbing
public order or of gaining any undue
temporal, pecuniary, material or other
advantage for himself or any other person,
indulge in anti-social activities (Act no. 2
of 1974), namely-

(i) offences punishable under Chapter
XVI, or Chapter XVII, or Chapter XXII of
the Indian Penal Code (Act no. 45 of 1860),
or

(ii) distilling or manufacturing or
storing or transporting or importing or
exporting or selling or distributing any
liquor, or intoxicating or dangerous drugs,
or other intoxicants or narcotics or
cultivating any plant, in contravention of
any of the provisions of the U.P. Excise
Act, 1910 (U.P. Act no. 4 of 1910) or the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 or any other law for
the time being in force, or

(iii) occupying or talking possession of
immovable property otherwise than in
accordance with law, or setting-up false
claims for title or possession of immovable
property whether in himself or any other
person, or (Act no. 61 of 1985)

(iv) preventing or attempting to
prevent any public servant or any witness
from discharging his lawful duties, or

(v) offences punishable under the
Suppression of Immoral Traffic in Women
and Girls Art, 1956, or

(vi) offences punishable under section
3 of the Public Gambling Act, 1867 (Act
no. 104 of 1956), or

(vii) preventing any person from
offering bids in auction lawfully conducted,
6 All. Nisar Vs. State of U.P. & Anr.
571
or tender, lawfully invited, by or on behalf
of any Government department, local body
or public or private undertaking for any
lease or right or supply of goods or work to
be done, or

(viii) preventing or disturbing the
smooth running by any person of his lawful
business profession, trade or employment
or any other lawful activity connected
therewith, or

(ix) offences punishable under section
171-E of the Indian Penal Code, or in
preventing or obstructing any public
election being lawfully held, by physically
preventing the voter from exercising his
electoral rights, or

(x) inciting others to resort to violence
to disturb communal harmony, or

(xi) creating panic, alarm or terror in
public, or

(xii)
terrorising
or
assaulting
employees or owners or occupiers of public
or private undertakings or factories and
causing mischief in respect of their
properties, or

(xiii) inducing or attempting to induce
any person to go to foreign countries on
false representation that any employment,
trade or profession shall be provided to
him in such foreign country, or

(xiv) kidnapping or abducting any
person with intent to extort ransom, or

(xv) diverting or otherwise preventing
any aircraft or public transport vehicle
from following its scheduled course;

(c) "gangster" means a member or
leader or organiser of a gang and includes
any person who abets or assists in the
activities of a gang enumerated in clause
(b), whether before or after the commission
of such activities or harbours any person
who has indulged in such activities."

7.1 Section 3 of the Gangsters Act,
1986 provides for punishment, which reads
as under:

"3. (1) A gangster shall be punished
with imprisonment of either description for
a term which shall not be less than two
years and which may extend to ten years
and also with fine which shall not be less
than five thousand rupees:

Provided that a gangster who commits
an offence against the person of a public
servant of the person of a member of the
family of a public servant shall be punished
Kith imprisonment of either description for
a term which shall not be less than three
years and also with fine which shall not be
less than five thousand rupees,

(2) Whoever being a public servant
renders any illegal help or support in any
manner to a gangster, whether before or
after the Commission of any offence by the
gangster (whether by himself or through
others) or abstains from taking lawful
measures or intentionally avoids to carry
out the directions of any court or of his
superior officers, in this respect, shall be
punished with imprisonment of either
description for a term which may extend to
ten years but shall not be less than three
years and also with fine."

7.2 Section 5 of the Gangsters Act
provides for constitution of Special Courts
for the speedy trial of the offences under
the Act. Section 6 provides that a Special
Court may, if it considers it expedient or
desirable so to do, hold its sitting for any of
its proceedings at any place, other than the
ordinary place of its sitting or seat. Section
8 of the Act provides that when trying any
offence punishable under the Gangsters
Act, a Special Court may also try any other
offence with which the accused may, under
any other law for the time being in force,
be charged at the same trial. Under Section
9 of the Gangsters Act, the State
Government shall appoint a person to be
the Public Prosecutor for every Special
Court. Section 10 provides that a Special
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Court may take cognizance of any offence
triable by it, without the accused being
committed to it for trial upon receiving a
complaint of facts which constitute such
offence or upon a police report of such
facts. Section 12 provides that the trial
under the Gangsters Act of any offence by
Special Court shall have precedence over
the trial of any other case against the
accused in any other court (not being a
Special Court) and shall be concluded in
preference to the trial of such other case
and accordingly the trial of such other case
shall remain in abeyance. Section 13 of the
Gangsters Act provides that where, after
taking cognizance of any offence, a Special
Court is opinion that the offence is not
triable by it, it shall, notwithstanding that it
has no jurisdiction to try such an offence,
transfer the case for trial of such offence to
any other court having jurisdiction under
the Code and the court to which the case is
transferred may proceed with the trial of
the offence as if it has taken cognizance of
the offence.

8. From the aforesaid, it can be seen
that all provisions are to ensure that the
offences under the Gangsters Act should be
given preference and should be tried
expeditiously and that too, by the Special
Courts, to achieve the object and purpose
of the enactment of the Gangsters Act.

9. Now so far as the main submission
on behalf of the accused that for a single
offence/FIR/charge sheet with respect to
any of the antisocial activities, such an
accused cannot be prosecuted under the
Gangsters Act, 1986 is concerned, on a fair
reading of the definitions of 'Gang' and
'Gangster' under the Gangsters Act, 1986,
it can be seen that a 'Gang' is a group of
one or more persons who commit/s the
crimes mentioned in the definition clause
for the motive of earning undue advantage,
whether pecuniary, material or otherwise.
Even a single crime committed by a 'Gang'
is sufficient to implant Gangsters Act on
such members of the 'Gang'. The definition
clause does not engulf plurality of offence
before the Gangsters Act is invoked.

A
group
of
persons
may
act
collectively or anyone of the members of
the group may also act singly, with the
object of disturbing public order indulging
in anti-social activities mentioned in
Section 2(b) of the Gangsters Act, who can
be termed as 'Gangster'. A member of a
'Gang' acting either singly or collectively
may be termed as a member of the 'Gang'
and comes within the definition of 'Gang',
provided he/she is found to have indulged
in
any
of
the
anti-social
activities
mentioned in Section 2(b) of the Gangsters
Act.
10. On a fair reading of the definitions of
'Gang' contained in Section 2(b) and
'Gangster' contained in Section 2(c) of the
Gangsters Act, a 'Gangster' means a
member or leader or organiser of a gang
including any person who abets or assists
in the activities of a gang enumerated in
clause (b) of Section 2, who either acting
singly or collectively commits and indulges
in
any
of
the
anti-social
activities
mentioned in Section 2(b) can be said to
have committed the offence under the
Gangsters Act and can be prosecuted and
punished for the offence under the
Gangsters Act. There is no specific
provision under the Gangsters Act, 1986
like the specific provisions under the
Maharashtra Control of Organized Crime
Act, 1999 and the Gujarat Control of
Terrorism and Organized Crime Act, 2015
that while prosecuting an accused under
the Gangsters Act, there shall be more than
one offence or the FIR/charge sheet. As per
the settled position of law, the provisions of
the statute are to be read and considered as
it is. Therefore, considering the provisions
6 All. Mujeem Vs. State of U.P. & Anr.
573
under the Gangsters Act, 1986 as they are,
even in case of a single offence/FIR/charge
sheet, if it is found that the accused is a
member of a 'Gang' and has indulged in
any of the anti-social activities mentioned
in Section 2(b) of the Gangsters Act, such as,
by violence, or threat or show of violence, or
intimidation, or coercion or otherwise with
the object of disturbing public order or of
gaining any undue temporal, pecuniary,
material or other advantage for himself or any
other person and he/she can be termed as
'Gangster' within the definition of Section 2(c)
of the Act, he/she can be prosecuted for the
offences under the Gangsters Act. Therefore, so
far as the Gangsters Act, 1986 is concerned,
there can be prosecution against a person even
in case of a single offence/FIR/charge sheet for
any of the anti-social activities mentioned in
Section 2(b) of the Act provided such an antisocial activity is by violence, or threat or show
of violence, or intimidation, or coercion or
otherwise with the object of disturbing public
order or of gaining any undue temporal,
pecuniary, material or other advantage for
himself or any other person.

10. In view of the law on the subject and
facts of the matter, it is clear that an accused can
be proceeded against under the Gangsters Act
even on the basis of a solitary case. The merits of
the case on the basis of which the case under the
Gangsters Act has been lodged cannot be seen.
The order of the co-ordinate Bench in the case of
Mohd. Ruksar which is being relied upon by
learned counsel for the applicant for praying of an
interim order on the said ground does not consider
the judgements passed by the Division Bench of
this Court and also the judgement of the Apex
Court. More so, it is an interim order which is not
binding on this Court.

11. The present petition is devoid of
any merits, the same is accordingly,
dismissed.

12. Office is directed to place a copy
of this order in Criminal Misc. Application
U/S 482 No. 43408 of 2022 (Mohd. Ruksar
vs. State of U.P. and another) within three
weeks from today.
----------
(2023) 6 ILRA 573
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application u/s 482 No. 17220 of 2023

Mujeem ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Prabhakar Chandel

Counsel for the Opp. Parties:
G.A., Sri Devendra Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Indian Penal Code,
1860 - Section - 307: - Application U/s 482 -
for quashing the entire proceedings of Session
Trial U/s 307 IPC - on the ground that, parties
have compromised the matter and also moved a
compromise application before the trial court -
there are no chances of conviction since the
complainant-opposite party has compromised
and would not testify in support of the
prosecution, in case trial is held - court finds
that, evidence shows that the weapon used was
a fire-arm and it brooks little doubt that a
person who opens fire at another does so with
the intention to kill, - certainly does not do so
with the intention to lover or play a jest - held,
the compromised would be an abdication of the
St.'s function to prosecute offences against the
society, cannot be permitted - and the principle
laid down in 'Narinder Singh' case does not
approve of such a composition - hence,
Application is dismissed.(Para - 6, 7)

Application u/s 482 Dismissed. (E-11)