# Pradeep Kumar Mishra v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Application U/S 482 No. 2897 of 2020
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-mishra-v-state-of-u-p-anr-48766
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 -Section 173(2), 482 -
U.P. Gangsters & Anti-Social Activities
(Prevention) Act, 1986 -Section 2, 3(1) -
Indian Panel Code, 1860 -Section 120(b),
302, 34, 504, 506:- Application - Validity
of Charge sheet, summoning order and for
quashing the proceeding of Session Trial
under Gangsters Act - Gang chart has
been
prepared
&
approved
by
the
Competent Authorities on very same day
in a hasty manner and without application
of mind - showing only two cases out of
which one is not related with accused and
in anr. case charge sheet was not
forwarded by the police to the court
concern as on date - in view of settled law
i.e. Gangsters Act cannot be used as
weapon to wreak vengeance to harass the
accused - Petition allowed - impugned
proceedings of session trial as well as
Charge sheet & summoning orders are
quashed with direction to the competent
Authority
to
proceed
against
the
petitioner as per law. (Para - 5, 8, 9)

Application (U/s 482) is allowed. (E-11)

List of Cases cited: -
6 All. Pradeep Kumar Mishra Vs. State of U.P. & Anr.
361

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES
inference of the suspected involvement of
the present accused-applicant in conspiracy
with any of the officers, officials and
employees, found prima facie guilty in
committing the irregularities and illegalities
in the process of recruitment process under
the contract. It seems that the present
accused-applicant unnecessarily brought
into the next of implication without logical
and legal reasons and basis.

37. Thus, the facts mentioned in the
complaint and in both the charge sheets
submitted by the Investigating Officer of
the S.I.T. are not disclosing the commission
of any cognizable offence under the
relevant sections of the I.P.C. with which
the present accused-applicant is arraigned
and, therefore, the cause of action clearly
arose for him to challenge the continuance
of criminal proceeding in the impugned
order of cognizance dated 9.9.2021.

38. In view of the above facts and
discussions the impugned summoning order
dated 9.9.2021 passed by the learned Special
Court,
Anti-corruption,
C.B.I.
Central,
Lucknow is set aside to the extent of the
applicant "Bhavesh Jain" and all the orders
passed in furtherance whereof and the entire
subsequent proceedings in Sessions Case No.
752 of 2021 (C.B.I. Vs. Mohd. Azam Khan,
etc.) under Sections 201, 204, 420, 467, 468,
471, 120-B I.P.C. and Section 66 of the I.T
Act, 2000 against the accused applicant
arising out of F.I.R. lodged on 25.4.2018
bearing No.2 of 2018 registered at Police
Station- S.I.T. Sadar, Lucknow pending in
the court of learned Special Court, AntiCorruption, C.B.I. (Central), Lucknow to the
extent of present accused applicant "Bhavesh
Jain" are quashed.

39. Accordingly, the application
under Section 482 Cr.P.C. is allowed.
----------
(2022)06ILR A360
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 No. 2897 of 2020

Pradeep Kumar Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ramakar Shukla

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 -Section 173(2), 482 -
U.P. Gangsters & Anti-Social Activities
(Prevention) Act, 1986 -Section 2, 3(1) -
Indian Panel Code, 1860 -Section 120(b),
302, 34, 504, 506:- Application - Validity
of Charge sheet, summoning order and for
quashing the proceeding of Session Trial
under Gangsters Act - Gang chart has
been
prepared
&
approved
by
the
Competent Authorities on very same day
in a hasty manner and without application
of mind - showing only two cases out of
which one is not related with accused and
in anr. case charge sheet was not
forwarded by the police to the court
concern as on date - in view of settled law
i.e. Gangsters Act cannot be used as
weapon to wreak vengeance to harass the
accused - Petition allowed - impugned
proceedings of session trial as well as
Charge sheet & summoning orders are
quashed with direction to the competent
Authority
to
proceed
against
the
petitioner as per law. (Para - 5, 8, 9)

Application (U/s 482) is allowed. (E-11)

List of Cases cited: -
6 All. Pradeep Kumar Mishra Vs. State of U.P. & Anr.
361
1. Ram Raheesh & anr. Vs St. of U.P. & ors.
(2011 vol. 73 ACC 559)

2. Matchumari China Venkatareddy & ors. Vs St.
of A.P. (1994 Crl.LJ 257)

3. Master Alias Ramzan Vs St. of UP (AIR online
2020 All 2766)

4. Ashok Kumar Dixit Versus St. of U.P., AIR
1987 All. 235

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition has been filed under
Section 482 CrPC for quashing proceeding
of Sessions Trial No.6 of 2018 State versus
Sonu alias Santosh and others vide case
crime No.279 of 2017 under section 3(1) of
U.P. Gangster & Anti Social Activities
(Prevention) Act, 1986, P.S. Kotwali
Nagar, district Sultanpur as regards the
petitioner as well as the charge sheet dated
25.5.2018 and summoning order dated
28.5.2018.

2. Heard learned counsel for the
petitioner and learned A.G.A. for the
State.

3. Learned counsel for the petitioner
is permitted to delete respondent No.2
from the array of parties, during course of
the day.

4. Facts of the case are that a first
information report was registered against
the petitioner. As per the first information
report, while the complainant was on
patrolling duty on 27.5.2017, during
patrolling, he came to know that Sonu
Singh alias Santosh Singh resident of
district Jaunpur is a desperate criminal
and is having an organised gang. He is a
gang leader and he along with Ajeet
Yadav, Deepak Mishra, Sandeep Mishra,
Praeep Mishra, Raghunayak Dubey, Anil
Pandey alias Santu and Ezajullah are
active members of gang.

It has also been alleged that the
gang has created a terror in districts
Sultanpur, Jaunpur, Ghazipur and other
districts and to earn economic and
physical benefits, they are habitual for
committing
offences
given
under
Chapters XVI, XVII and XXII of the
Indian Penal Code. It is further alleged
that the gang leader Sonu Singh alias
Santosh Singh and Ajeet Yadav used to
commit contract killing and on 8.2.2017
with active support of other members of
the gang, they have committed murder of
prestigious businessman Bharat Bhushan
Mishra. To curve the increasing anti
social activities of the gang, gang chart
has been approved by the District
Magistrate, Sultanpur on 26.5.2017.

5. Learned counsel for the petitioner
submits that merely on the basis of two
cases, i.e. Case Crime No.63 of 2017
under sections 302, 34, 120-B I.P.C., P.S.
Kotwali Nagar, district Sultanpur and
Case Crime No.153 of 2017 under
sections 504, 506 I.P.C., P.S. Kotwali
Nagar, district Sultanpur, U.P. Gangster
& Anti Social Activities (Prevention)
Act, 1986 has been imposed against the
petitioner.

It is next submitted that in case
Crime No.63 of 2017 (supra), the petitioner
has been granted bail vide order dated
25.5.2017 and before the petitioner could
be released from jail in compliance of the
order, in order to nullify the bail order
granted in favour of the petitioner, with
ulterior motive, the police of police station
Kotwali Nagar, district Sultanpur has
falsely
prepared
the
gang
chart
on
362 INDIAN LAW REPORTS ALLAHABAD SERIES
26.5.2017 which is one day after the bail
order was passed, in a mechanical manner
in utter haste and without examining the
material on record by the authorities.

It is submitted that preparing of
the gang chart in a mechanical manner and
in haste and the manner in which it has
been approved is evident from the fact that
the Station Officer of police station
Kotwali, district Sultapur has forwarded the
gang chart on 26.5.2017. The Circle Officer
received the gang chart on the same day
and he also signed it on 26.5.2017 which
was forwarded to the Addl. Superintendent
of Police, Superintendent of Police and
District Magistrate, Sultanpur. All the
authorities have signed the gang chart on
the same day, including the District
Magistrate, Sultanpur who approved it on
the very same day, i.e. on 26.5.2017. It is
submitted that the entire exercise has been
done in haste and without application of
mind.

In this context, learned counsel
has relied on Ram Raheesh and another
versus State of U.P. and others (2011)73
ACC 559 in which this court has
deprecated the practice of recommending
and forwarding the gang chart and
approving it on the same day and held that
before granting approval to the gang chart,
subjective satisfaction of the District
Magistrate is required. Relevant paragraph
12 is extracted below :

"12.
Having
considered
the
submissions made by the learned Counsel for
the parties, we, prima facie are of the view
that the gang chart has been approved in a
mechanical
manner
by
the
District
Magistrate and the said decision to lodge the
FIR on that basis has been taken in haste.
The haste with which, without examining the
material on record by the authorities
concerned, Gang chart has been approved is
evident from the fact that on 15.10.2010
Inspector, Kotwali prepared the Gang chart
and submitted to the Circle Officer, Hardoi
City for approval. On the same day, he
referred the matter to the Additional
Superintendent of Police, Hardoi, who in
turn, on the same day referred the matter to
the Superintendent of Police, Hardoi. The
Superintendent of Police, Hardoi made a
note dated 15.10.2010 "recommended" and
forwarded the gang chart to the District
Magistrate, who in his turn, approved the
gang chart on the same day i.e. 15.10. 2010.
Thus it cannot be said that the District
Magistrate at any point of time recorded
subjective satisfaction before imposition of
the Gangsters Act."

It is next submitted that in the gang
chart, there are two cases imposed against the
petitioner. In Case Crime No.153 of 2017
under sections 504, 506 I.P.C., the petitioner
has no concern, at all. The case has wrongly
been shown against the petitioner which
again shows total non-application of mind of
the district authorities. The fact that the
petitioner has no concern with case crime
No.153 of 2017 has been admitted by the
State in para 12 of the counter affidavit.

As regards other case, i.e. case
crime No.63 of 2017 (supra), charge sheet
has been prepared on 25.5.2017 and
according to 'Z' register, (register which
records forwarding of the charge sheet to
the concerned Judicial Magistrate), the
same was forwarded to the Magistrate on
23.6.2017 and the cognizance was taken by
the Magistrate on the same day, i.e. on
23.6.2017.

It
is
further
submitted
that
according to para 12 of the circular dated
6 All. Pradeep Kumar Mishra Vs. State of U.P. & Anr.
363
18.9.2012, issued by the Director General
of Police, U.P. No.42 of 2012, only those
cases should be shown in gang chart in
which charge sheet has been filed.

In the case in hand, the gang chart
was prepared on 26.5.2017 and at the time
of preparation of gang chart, it is admitted
case that no charge sheet was submitted
before the court and was lying before the
police authorities. It is submitted that out of
two cases shown in the gang chart, as
referred to above, the petitioner has no
concern as regards Case Crime No.153 of
2017 (supra) and in other case, i.e. in Case
Crime No.63 of 2017, charge-sheet was yet
to be forwarded to the court below at the
time of preparation of gang chart.

In support of his contention,
learned counsel has relied on Matchumari
China Venkatareddy and others versus
State of A.P. 1994 Crl. L.J. 257 in which it
has been held that unless the court takes the
charge sheet on record for examination for
taking cognizance or not, it cannot be said
that a police report (charge sheet) is filed as
contemplated under section 173(2) CrPC.

In support of his argument,
learned counsel has further relied on
Master Alias Ramzan versus State of
U.P. AIR Online 2020 All 2766 (relevant
para 11), in which it has been held that only
those cases shall be included in the gang
chart in which the police has prepared
charge sheet and the same has been filed
before the court concerned.

It is submitted that in the present
case, at the time of preparation of the gang
chart on 26.5.2017, charge sheet in case
crime No.63 of 2017 (supra) was still lying
with the police authorities. It is submitted
that the entire exercise of preparation of the
gang chart and lodging of the first
information report is malicious which is
evident from the fact that as per the first
information report lodged on 27.5.2017
with the allegation that when the then
Inspector
Incharge
of
police
Station
Kotwali Nagar, district Sultanpur Mr.
Chandrashekhar Singh was on patrolling
duty, then he came to know about the gang
of the petitioner and the fact that the
petitioner is a gang leader, whereas one day
prior to it, entire exercise of preparation of
the gang charge was completed by the
police authorities.

It is also submitted that although
the gang chart was prepared and charge
sheet has been filed in haste against the
petitioner. It is submitted that in the entire
investigation, the investigating officer did
not show that while allegedly committing
the offence, the petitioner gained any
advantage like temporal, pecuniary or other
advantage. No such material of any sort has
been collected by the investigating officer.
Counter affidavit filed by the State is also
silent in this regard. .

Learned counsel has further relied
on Ashok Kumar Dixit versus State of
U.P. AIR 1987 All. 235 (relevant para 75),
in which this Court has observed that the
provision of the Gangsters Act cannot be
used as a weapon to wreak vengeance to
harass the accused.

6. Section 2 of the Gangsters Act
defines the gang as under :

"2. ..............

(a) ...................

(b) "Gang" means a group of
persons, who acting either singly or
364 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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 (Act No. 61 of 1985),
or any other law for the time being in force,
or

(iii)
occupying
or
taking
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

(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 Act, 1956 (Act No. 104 of 1956),
or

(vi) offences punishable under
Section 3 of the Public Gambling Act, 1867
(Act No. 3 of 1867), or

(vii) preventing any person from
offering bids in auction lawfully conducted,
or tender, lawfully invited, by or on behalf
of any Government department, local body
or public or private undertaking, for any
lease or rights 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
(Act No. 45 of 1860), 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
6 All. Pradeep Kumar Mishra Vs. State of U.P. & Anr.
365
vehicle from following its scheduled
course;

[(xvi) offences punishable under
the Regulation of Money Lending Act,
1976;

(xvii) illegally transporting and/or
smuggling of cattle and indulging in acts in
contravention of the provisions in the
Prevention of Cow Slaughter Act, 1955 and
the Prevention of Cruelty to Animals Act,
1960;

(xviii)
human
trafficking
for
purposes of commercial exploitation, bonded
labour, child labour, sexual exploitation,
organ removing and trafficking, beggary and
the like activities.

(xix) offences punishable under the
Unlawful Activities (Prevention) Act, 1966:

(xx) printing, transporting and
circulating of fake Indian currency notes;

(xxi) involving in production, sale
and distribution of spurious drugs;

(xxii) involving in manufacture,
sale and transportation of arms and
ammunition in contravention of Sections 5, 7
and 12 of the Arms Act, 1959;

(xxiii)
felling
or
killing
for
economic gains, smuggling of products in
contravention of the Indian Forest Act, 1927
and Wildlife Protection Act, 1972;

(xxiv) offences punishable under
the Entertainment and Betting Tax Act, 1979;

(xvv) indulging in crimes that
impact security of State, public order and
even tempo of life.]

(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;

(d) "public servant" means a
public servant as defined in Section 21 of
the Indian Penal Code (Act No. 45 of
1860), or any other law for the time being
in force, and includes any person who
lawfully assists the police or other
authorities of the State, in investigation or
prosecution or punishment of an offence
punishable under this Act, whether by
giving information or evidence relating to
such offence or offender or in any other
manner;

(e) "member of the family of a
public servant" means his parents or
spouse and brother, sister, son, daughter,
grandson, granddaughter or the spouses of
any of them, and includes a person
dependent on or residing with the public
servant and a pen on in whose welfare the
public servant is interested;

(f) words and phrases used but
not defined in this Act and defined in the
Code of Criminal Procedure, 1973, or the
Indian Penal Code shall have the meanings
respectively assigned to them in such
Codes."

7. A perusal of the definition shows
that if an offence punishable under Chapter
XVI or Chapter XVII or Chapter XXII of
the Indian Penal Code is committed, in
order
to
gain
any
undue
temporal,
pecuniary, material or other advantage ,
then on account of such activity by use of
366 INDIAN LAW REPORTS ALLAHABAD SERIES
violence, or threat or show of violence, or
intimidation, or coercion or otherwise with
the object of disturbing public order, such a
person is held to be indulged in anti-social
activities. To bring the accused in the
definition of Gangster, the very motive of
such accused for committing the offence is
relevant. The material collected by the
investigating officer must reveal that there
was
a
motive
of
making
wrongful
economic gain while committing the crime.

In the present case, this court has
noted that although the accused are facing
the charge of committing murder, however,
there is no material to show that they have
committed the crime in order to derive any
wrongful economic gain.

8. It is admitted case of the State that
the accused petitioner has no concern with
case crime No.153 of 2017 (supra), as
admitted in para 12 of the counter affidavit.
It is also admitted case of the State that
when the gang chart was prepared, charge
sheet was not forwarded by the police
authorities, rather it was forwarded to the
court concerned on 25.6.2017. In this
context, learned counsel has produced an
information
sought
under
Right
to
Information Act which is taken on record
and it also shows that the charge sheet has
been filed in the court on 23.6.2017 for the
first time. Therefore, in view of the law laid
down by this court in the case of Master
Alias Ramzan (supra), the said charge
sheet which was yet to be filed in the court
could not have been considered for the
purpose of preparation of the gang chart.

9.

Considering
the
argument
advanced by the petitioner's counsel as well
as learned A.G.A. for the State as also
going through the entire material on record
and the case laws referred to herein above,
I am of the view that the petition is liable to
be and is hereby allowed.

The impugned proceedings of
Sessions Trial No.6 of 2018 State versus
Sonu alias Santosh and others vide case
crime No.279 of 2017 under section 3(1) of
U.P. Gangster & Anti Social Activities
(Prevention) Act, 1986, P.S. Kotwali
Nagar, district Sultanpur as regards the
petitioner as well as the charge sheet dated
25.5.2018 and summoning order dated
28.5.2018 are quashed. However, it shall be
open for the competent authority to proceed
against the petitioner as per law.
----------
(2022)06ILR A366
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.06.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Application U/S 482 No. 3457 of 2022

Ashwani Kumar (Mishra) ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Tung Nath Tiwari, Sri Ramesh Kumar
Dwivedi, Sri Sunil Srivastava

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 -Section 231, 311, 313,
482:-
Application
for
permitting
the
present accused to cross examine the PW3 whose examination-in-chief had already
been recorded twenty one year back &
also cross-examined in detailed on behalf
of other co-accused which was further
adopted by the counsel for the present
applicant & other co-accused - proceeding