# Rajeev Agarwal v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Application U/S 482 No. 38502 of 2018
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-agarwal-v-state-of-u-p-anr-50902
- **Pages:** 16

## Headnote

Criminal Law - The U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986 - Sections 2/3 - in Special Case No.
113 of 2018, arising from FIR No. 125 of 2018,
along with the charge-sheet dated 03.09.2018
and cognizance order dated 26.09.2018. The
court found the FIR, based on a single case
(Case Crime No. 1063 of 2015 under Sections
420, 467, 468, 471, 120-B IPC), lacked evidence
of violence or public order disturbance, essential
for invoking the Gangster Act. (Paras 2, 8-9, 14,
28)
Non-Compliance with Procedural Safeguards
The court held that the gang-chart was
approved mechanically without adherence to
Rules 5, 6, 13, 15, 16, and 17 of the U.P.
Gangster and Anti-Social Activities (Prevention)
Rules, 2021, violating procedural safeguards.
The lack of independent application of mind by
the
District
Magistrate
and
approving
authorities, and absence of recorded reasons,
rendered the FIR and proceedings mala fide and
arbitrary,
breaching
Article
21
of
the
Constitution. (Paras 16-17, 23-24, 26)
Civil Dispute Mischaracterized as Criminal The
allegations stemmed from a civil dispute over
property, with no evidence linking the applicants
to the sale deeds or anti-social activities. The
court noted that the primary party (Neeraj Jain)
involved
in
the
civil
litigation
was
not
prosecuted, indicating arbitrary selection of the
applicants. The absence of criminal history and
property ownership further undermined the
Gangster
Act's
applicability,
making
the
proceedings an abuse of process. (Paras 4-5, 9,
27)
Constitutional Protection and Judicial Scrutiny
The court emphasized the St.'s duty to protect
personal liberty under Article 21 and cautioned
against misuse of the Gangster Act to harass
innocent citizens. Citing Shraddha Gupta Vs St.
of U.P. (2022) and Gulam Mustafa Vs St. of
Karnataka (2023), it held that civil disputes
given a criminal color, without evidence of
gangsterism, warrant quashing under Section
482 Cr.P.to prevent abuse of court processes.
(Paras 21-22, 24-25, 27)

List of Cases cited:

## Text

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176 INDIAN LAW REPORTS ALLAHABAD SERIES
and is hereby allowed. The impugned
proceedings pending against applicant as
well as charge-sheet dated 17.4.2019 filed
against the applicant are hereby quashed.
----------
(2024) 1 ILRA 176
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482 No. 38502 of 2018
With
Application U/S 482 No. 3399 of 2019

Rajeev Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Swetashwa Agarwal, Sri Ashish Kumar
Singh

Counsel for the Opposite Parties:
G.A., Sri Rakesh Dubey

Criminal Law - The U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986 - Sections 2/3 - in Special Case No.
113 of 2018, arising from FIR No. 125 of 2018,
along with the charge-sheet dated 03.09.2018
and cognizance order dated 26.09.2018. The
court found the FIR, based on a single case
(Case Crime No. 1063 of 2015 under Sections
420, 467, 468, 471, 120-B IPC), lacked evidence
of violence or public order disturbance, essential
for invoking the Gangster Act. (Paras 2, 8-9, 14,
28)
Non-Compliance with Procedural Safeguards
The court held that the gang-chart was
approved mechanically without adherence to
Rules 5, 6, 13, 15, 16, and 17 of the U.P.
Gangster and Anti-Social Activities (Prevention)
Rules, 2021, violating procedural safeguards.
The lack of independent application of mind by
the
District
Magistrate
and
approving
authorities, and absence of recorded reasons,
rendered the FIR and proceedings mala fide and
arbitrary,
breaching
Article
21
of
the
Constitution. (Paras 16-17, 23-24, 26)
Civil Dispute Mischaracterized as Criminal The
allegations stemmed from a civil dispute over
property, with no evidence linking the applicants
to the sale deeds or anti-social activities. The
court noted that the primary party (Neeraj Jain)
involved
in
the
civil
litigation
was
not
prosecuted, indicating arbitrary selection of the
applicants. The absence of criminal history and
property ownership further undermined the
Gangster
Act's
applicability,
making
the
proceedings an abuse of process. (Paras 4-5, 9,
27)
Constitutional Protection and Judicial Scrutiny
The court emphasized the St.'s duty to protect
personal liberty under Article 21 and cautioned
against misuse of the Gangster Act to harass
innocent citizens. Citing Shraddha Gupta Vs St.
of U.P. (2022) and Gulam Mustafa Vs St. of
Karnataka (2023), it held that civil disputes
given a criminal color, without evidence of
gangsterism, warrant quashing under Section
482 Cr.P.to prevent abuse of court processes.
(Paras 21-22, 24-25, 27)

List of Cases cited:

1. Ashok Kumar Dixit Vs St. of U.P., AIR 1987 All
235 (Paras 12, 21)

2. Vimal Shukla Vs St. of U.P., 2019 (1) ARC 299
(Para 21)

3. Shubhankar Gupta Vs St. of U.P., (2019) 1
A.Cr.R. 2 (Para 21)

4. Shraddha Gupta Vs St. of U.P., (2022) 17
SCR 622 (Para 21)

5. Gulam Mustafa Vs St. of Karn., (2023) 5 SCR
354 (Para 22)

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Shri Swetashwa Agarwal,
learned counsel for the applicants and
learned A.G.A. for the State in both the
connected
applications
as
both
the
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
177
applications arise out of same FIR,
chargesheet and cognizance order.

2. The instant Applications 482
Cr.P.C. have been filed on behalf of the
applicants with a request to quash the entire
proceedings of Special Case No.113 of
2018 (State Vs. Ranjan Mittal and another)
arising out of case crime/FIR No.125 of
2018, under Sections 2/3 of U.P. Gangster
and Anti-Social Activities (Prevention) Act,
1986,
Police
Station-Kotwali
Nagar,
District-Muzaffar Nagar, which is pending
in the court of Special Judge, Gangster
Act/5th Additional District and Sessions
Judge,
Muzaffar
Nagar
along
with
impugned charge-sheet dated 03.09.20218
as
well
as
cognizance
order
dated
26.09.0218.

3. The facts of the case in brief are as
follows:

The
impugned
FIR
dated
30.01.2018 bearing No.125 of 2018 under
Section 2/3 of U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986 has
been lodged against the applicants on the
basis of a single criminal case, which was
registered in the year 2015 as case crime
No.1063 of 2015, under Sections 420, 467,
468, 471, 120-B IPC, Police StationKotwali Nagar, District-Muzaffar Nagar. It
is further alleged in the FIR that applicants
exercise terror in society and they indulge
in heinous offences for their personal,
pecuniary and material advantage and their
moving freely is not in public interest. They
are involved in committing the offences
relating to Chapter XVII & XVIII IPC.

4. It is submitted by the learned
counsel for the applicants that single base
case i.e. case crime No.1063 of 2015, under
Sections 420, 467, 468, 471, 120-B IPC,
Police Station-Kotwali Nagar DistrictMuzaffar Nagar was lodged against seven
accused persons including the applicants,
wherein the allegations of a civil dispute
relating to evacuee and non evacuee
properties against all seven accused persons
including the applicants have been levelled.
It has further been alleged that properties in
question mostly belong to Government,
which is evident from the records obtained
from the Tehsildar and with the intention to
damage and destroy the same, two deeds
dated 26.02.2003 and 01.05.2003 were
executed and forged documents were also
prepared by the accused persons including
the present applicants.

5. It is further submitted that
applicants are neither vendees nor vendors
of the alleged property, on the basis of
which, instant FIR has been lodged against
them, which is evident from the sale deed
dated 11.10.2001 executed by Jamshed Ali
Khan and others in favour Neeraj Jain, as
such, on the basis of the allegations made
in the impugned FIR dated 30.01.2018 no
offences under Sections 420, 467, 468, 471,
120-B IPC are made out against the
applicants.

6. Learned counsel for the applicants
submitted
that
in
the
present
case
applicants have been falsely implicated on
the basis of arbitrary selection and other co
accused persons have been left over. In the
instant case, approval has also been
appended by the District Magistrate,
Muzaffar Nagar and S.S.P, Muzaffar Nagar
in an arbitrary and mechanical way without
any material available on record. Impugned
FIR has been lodged on the basis of vague
assumption and presumption against the
applicant
without
there
being
any
incriminating
material
or
evidence
available on record. It is further submitted
178 INDIAN LAW REPORTS ALLAHABAD SERIES
that in base case i.e. case crime No.1063 of
2015, on the basis of which, impugned FIR
has been lodged, arrest of the applicant
Ranjan
Mittal
was
stayed
till
the
submission of police report under Section
173(2) Cr.P.C. by a Division Bench of this
Court vide order dated 24.07.2015 in
Criminal Misc. Writ Petition No.17767 of
2015. However, upon submission of
charge-sheet,
the
entire
criminal
proceedings along with charge-sheet in
question was challenged before this Court
by way of filing Application U/S 482
Cr.P.C. No.7731 of 2018, wherein, a coordinate Bench of this Court has granted
the interim protection in favour of the
applicant Ranjan Mittal and stayed the
further proceedings of the case vide order
dated
09.03.2018.
Vide
order
dated
12.02.2018 Division Bench of this court
stayed arrest of the applicant Ranjan Mittal
in Criminal Misc. Writ Petition No.3343 of
2018 in FIR No.125 of 2018, under Section
2/3 of U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986. Upon
submission
of
Charge
Sheet,
further
proceedings of Special Case No.113 of
2018 State Vs Ranjan Mittal and another in
Application U/S 482 Cr.P.C. No.38502 of
2018 of 2018, was stayed by the court.
Likewise in the case of the Applicant
Rajeev Agarwal similar orders were passed
by this court. Even no cogent evidence was
found against the applicants by the
concerned Investigating Officer, which is
evident from the 'Parchas' submitted by
him. The Gang-chart of the case reads as
follows:-

GANG-CHART
Sr.
No
Name
of
Accused
Age Case No.1063/15
u/s
420/467/468/471/
120-B
Case no. 14/17
Dated
16.12.17
Cur
rent
Situ
atio
n

P.S.-Kotwali,
Muzaffarnagar

P

J L
1.
Rajjan
Mittal s/o
Manmohan
Mittal
r/o
H.N.
84
Bhopa
Road,
Muzaffarn
agar
50
✓
✓
-
-
2.
Rajiv
Agarwal
s/o Vinod
Agarwal
r/o
H.N.
646/22.
Jawahar
Colony PS
Nai Mandi
Muzaffarn
agar
52

✓
✓
-
-

7. It is submitted that I.O. has
submitted
chargesheet
against
the
applicants under the aforesaid sections. It is
apparent that without proper forwarding/
recommending/approval of the gang-chart
from the authorities concerned, the chargesheet under the aforesaid section was
submitted.

8. It is submitted by the learned
counsel appearing for the applicants, that
even if all allegations in the impugned FIR
and charge-sheet are taken as true, no case
under Sections 2/3 of the Act of 1986 is
made out against the applicants. In order to
support the aforesaid submission, learned
counsel has referred to the provisions of the
gangster Act of 1986. He submits that there
are two essential ingredients to constitute a
gang. The
two
essential
ingredients,
according to learned counsel for the
applicants, are 'violence' or 'disturbance of
public order' indulged in by a group of
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
179
persons, acting either singly or collectively,
for the purpose of pecuniary gain etc.

9. It is the learned counsel for the
applicants' submission that none of the
offences charged against the applicant,
either involves violence or the disturbance
of public order. Therefore, even if there be
allegations about pecuniary gain, the
consequences under the Act of 1986 would
not be attracted. He next submits that there
is one base case registered against the
applicants, on the footing of which the
present prosecution has been launched
under Section 2/3 of the Act of 1986. But,
in the crime, the applicants were not
involved in any manner in committing the
offence as has been alleged in the
impugned
FIR
(base
case)
as
the
applicants were neither vendees nor
vendors of the alleged property. Therefore,
in the submission of the learned counsel,
the base case is not available to provide
foundation to the prosecution to pursue the
present case under the Act of 1986. It is
further
submitted
that
the
reports
submitted by the Tehsildar as well as
Investigating Officer also does not show
that applicants are having too much
property except their parental house. Apart
from this case, applicants do not have any
criminal history. It is in the last submitted
by the learned counsel for the applicants
that there is violation of Rule Nos. 5, 6,
13, 15,16 and 17 of The Uttar Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Rules, 2021, vitiating the
gang-chart. He has emphasized that nonadherence to these rules has vitiated the
basis of registration of the crime and a
fortiori
the
police
report
and
the
prosecution.
He
has
emphatically
submitted that violation of the aforesaid
rule is not mere omission but it shows that
the proceedings before registering FIR has
been carried out mechanically without
giving heed to the provisions of law and
rules,
which
are
of
fundamental
importance as any false and malacious
prosecution entails serious consequences
resulting into the deprivation of life and
personal liberty of the accused person,
which cannot be deprived except for the
procedure established by law as is
enshrined in the Article 21 of the
Constitution of India. The forwarding,
recommending and approving authorities
have not paid any heed or attention to
relevant law and rules, while exercising
their
authority
with
regard
to
the
preparation and approval of the gangchart. The whole exercise on their part has
been carried out without application of
mind.

10. On the other hand, in response to
the notice issued to respondents, counter
affidavits were filed which are duly sworn
by Anil Kapparwan, presently posted as
Inspector
(In-charge),
Police
StationKairana, District-Shamli and by Chandan
singh, presently posted as sub-Inspector,
Police station, Kotwali Nagar, DistrictMuzaffar
Nagar,
in
which
all
the
allegations and averments made in the
affidavits
filed
in
support
of
the
applications under section 482 cr.p.c. have
been totally denied and it is asserted in
paragraph no.4 that accused are hardened
criminals and are gang leader and member.
They together used to commit crimes for
pecuniary and temporal gains.

11. In response to the counter
affidavits filed by the opposite parties,
rejoinder affidavits were filed in which, the
allegations and averments made in the
counter affidavits were denied and in
paragraph no.6, it is mentioned that
applicants have no concern with the base
180 INDIAN LAW REPORTS ALLAHABAD SERIES
case as they were neither vendees nor
vendors of the alleged property.

12. Upon hearing learned Counsel for
the parties, this Court is of opinion that in
order to consider the submissions of
learned counsel for the applicants as well as
learned counsel for the State, it is
imperative
to
refer
to
the
relevant
provisions of the Act of 1986, which reads
as follows:

As the Act being a special
statute- The Act is a special statute which
has been enacted for the prevention of and
for coping with gangsterism and antisocial activities. The Object and reasons
as
well
as
preamble
are
quoted
hereinbelow:-

Objects and reasons of the Act:-

Gangsterism
and
anti-social
activities influenced the State Legislature in
making introduction of such Act. The
objects and reasons of the Act are that
gangsterism and anti-social activities were
on the increase in the state posing threat to
lives and properties of the citizens. The
existing measures were not found effective
enough to cope with new menace. With a
view to break the gangs by punishing the
gangsters and to nip their conspirational
designs, it was considered necessary to
make special provision for the prevention of
and for coping with gangsters and antisocial activities in the State. [Ashok Kumar
Dixit v. State of U.P., 1987 (34) ACC 164:
1987 ACFR 230 AIR 1987 (All) 235 (All
HC, FB)].

Preamble of Act.-The Act seeks to
punish declared criminals who have
deliberately chosen the life of crime. The
activities of these professional perpetrators
of organised crimes, violence and orgy has
a far more baneful effect on the health and
morals of the society and its people. If the
activities of such recidivist are subjected to
same punishment as that other ordinary
criminals, the confidence of public in the
efficacy
and
efficiency
of
State
Administration is bound to shake. [Ashok
Kumar Dixit v. State of U.P., 1987 (34)
ACC 164: 1987 ACTR 230: AIR 1987 (All)
235 (All HC, FB)].

13. It is important to refer to the
relevant provisions of the Act of 1986,
which reads as follows:-

"2. Definitions.--In this Act,--

(a) x x x

(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
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
181
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,
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;

(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;

(xxv) 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
182 INDIAN LAW REPORTS ALLAHABAD SERIES
any person who has indulged in such
activities;

14. A perusal of the aforesaid
provisions
shows
that
violence
or
disturbance of public order alone are not
the sine qua non of a gang as defined under
the Act of 1986. It postulates a group of
persons, who either acting singly or
collectively, employ violence, or threat or
show of violence, or intimidation, or
coercion, ''or otherwise' with the object of
(i) disturbing public order; (ii) or of gaining
any undue temporal, pecuniary, material; or
other advantage for himself or any other
person, indulge in anti-social activities,
enumerated in clauses (i) to (xxii) of subSection (b) of Section 2 of the Act of 1986.

15. It is a well settled cannon of
statutory interpretation that a statute should
be read and understood according to its
plain grammatical meaning, unless that
construction leads to an absurd result, or
defeats the object and the very purpose of
it.

16. Learned counsel for the applicants
has also drawn attention towards the
mandatory compliance with the provisions
of Rule 5, 6, 13, 15, 16 and 17 of the Rules
of 2021 framed under the Act of 1986.
These Rules have been made by the State
Government in exercise of powers under
Section 23 of the Act of 1986 to carry out
its purposes. Rule Nos.5, 6, 13, 15, 16 and
17 are extracted below:

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

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

(3) The following provisions shall
be complied with in respect of gang-charts-
-

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

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

(c). The gang-chart shall not
mention those cases in which acquittal has
been granted by the Special Court or in
which the final report has been filed after
the investigation. However, the gang-chart
shall
not
be
approved
without
the
completion of investigation of the base
case.

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

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

Along with the above, a certified
copy of the gang register kept at the police
station shall also be attached with the
gang-chart. In addition to the above, the
information of crime and gang members
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
183
mentioned in the gang-chart will also be
updated on Interoperable Criminal Justice
System (ICJS) portal and Crime and
Criminal
Tracking
Network
System
(CCTNS).

6. Relevant provision of the Act
to be specifically mentioned.-(1) while
preparing the gang-chart, it shall be clearly
mentioned if the alleged act of the gang
falls within the purview of clause (b) of
section 2 of the Act along with the relevant
provision.

(2) If the Investigating Officer
makes an endorsement to the effect that the
accused is causing panic, alarm or terror
in public, then evidence shall be collected
in this regard.

To initiate proceedings under this
Act, the concerned In-charge of Police
Station/Station
House
Officer/Inspector
shall prepare a gang chart mentioning the
details of criminal activities of the gang.

13.
Specific
statement
of
offences committed for economic, material
and temporal or similar other benefits.-
While writing the abstract below the gangchart and particulars separately with the
gang-chart,
the
particulars
of
those
offences shall be specifically mentioned:

(I) which have been committed
for pecuniary, materialistic and temporal
or similar benefits; or

(ii) which disturb the public
order; or

(iii) which are a ground for
detention under the National Security Act,
1980 (Act No.65 of 1980).

15.
Arbitrary
selection
of
gang/member of gang prohibited.-(1)
There should not be a situation of arbitrary
selection against any gang under this Act.

(2) If action is not to be taken
against any mEmber of a gang who has
committed a criminal act in association
with the said gang, then in such a case
clear and reasonable grounds for not
mentioning his name in the gang-chart
shall be recorded with reasons and
evidences.

(3) The final decision as to
whether to include or not to include the
name of member of a gang in the gang and
gang-chart shall be at the discretion of the
commissioner
of
Police/District
Magistrate.

16. Forwarding of Gang-Chart.-
-

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

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

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

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

(3)
Resolution
of
the
Commissioner
of
Police/District
Magistrate:- When the gang-chart is sent
to the Commissioner of Police/District
Magistrate along with all the Forms, all the
facts will also be thoroughly perused by the
Commissioner of Police/District Magistrate
and when he is satisfied that the basis of
action exists in the case, then he will
approve the gang-chart stating therein that:
"I duly perused the gang-chart and
attached Forms in the light of the evidence
attached with the gang-chart satisfactory
grounds exist for taking action under the
Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986. The
gang-chart is approved accordingly."

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

17. Use of independent mind.--

(1) The Competent Authority
shall be bound to exercise its own
independent mind while forwarding the
gang-chart.

(2) A pre-printed rubber seal
gang-chart should not be signed by the
Competent Authority; otherwise the same
shall tantamount to the fact that the
Competent Authority has not exercised its
free mind."

17. Thus from perusal of the Rules,
all that is required by Rules is that the
Authorities recommending registration of a
case under the Act of 1986 should come to
the
conclusion
with
an
independent
application of mind that a case under the
Act of 1986 ought to be registered.
Likewise, the Authorities approving the
gang-chart should also come to the
conclusion on an independent application
of mind that a case under the Act of 1986
ought to be registered against the accused
on the basis of the activities of the gang.
However there is no prescription for the
employment of particular words to serve as
index of due application of mind.

18. It is pertinent to note here that the
above noted rules of 2021 are in the form
of procedural safeguards in relation to
offences under the Gangsters Act. Even
before these Rules of 2021, certain
safequards were already, in place, in one
way and the another in the form of G.Os.
and Notifications/Communications issued
by
the
Government/Executive
Authority/Police Authority. These were all
ad hoc Procedural Safequards to be
observed and complied with by the
concerned authorities while dealing with
gangster cases, just to make a stop gap
arrangement and an effort to plug the void,
in place of formal Rules as contemplated
by Section 23 of the Act.

डीजी पररपत्र संख्या-27/2003

oh0ds0ch0 uk;j

vkbZ0ih0,l0

iqfyl egkfuns'kd

mRrj izns'k]

1] frydekxZ] y[kuÅA

fnukad&vDVwcj] 24] 2003

fiz; egksn;]

m0iz0 esa vijk/kh] vijkf/k;ksa] vjktd
rRoksa] lewg cukdj vijk/k djus okys yksxksa]
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
185
lekt fojks/kh fdz;k dykiksa esa layXu O;fDr;ksa ij
fu;U=.k j[kus rFkk mudh xfrfof/k;ksa ij vadq'k
cuk;s j[kus ds mn~ns'; ls izns'k esa m0iz0 xq.Mk
fu;U=.k vf/kfu;e 1970 ,oa m0iz0 fxjksg cUn
,oa lekt fojks/kh fØ;k dyki 1⁄4fuokj.k1⁄2
vf/kfu;e 1986 dk izko/kku gSA

bu vf/kfu;eksa dk mi;ksx dsoy ik=
O;fDr;ksa ds fo:) gh gks ,oa bldk nq:i;ksx u
gks] blfy, bl fo"k; ij le; le; ij foLr`r
funsZ'k tkjh fd;s x;s gS] fdUrq0 ek0 mPp
U;k;ky; rFkk bl eq[;ky; ds laKku esa dqN
,sls izdj.k vk;s gSa] ftlls ;g izrhr gksrk gS fd
bu vf/kfu;eksa dk nq:i;ksx jksdus ds fy, 'kklu
}kjk tks fn'kk&funsZ'k tkjh fd;s x;s gS mudk
mfpr

ek0 mPp U;k;ky; us fjV ;kfpdk
la[;k 6249@2003 vejukFk nqcs cuke m0iz0
jkT; ,oa vU; esa m0iz0 lekt fojks/kh
fØ;k&dyki vkSj fxjksg cUn vf/kfu;e ds
nq:i;ksx ij vizlUurk O;Dr fd;k gS rFkk ;g
funsZ'k fn;k gS fd mijksDr dk nq:i;ksx djus
okys vf/kdkfj;ksa ij Hkkjh vFkZn.M yxk;k tk
ldrk gS A

vr% mijksDr nksuksa vf/kfu;eksa ds
fdz;kUo;u ds lEcU/k esa fuEufyf[kr fn'kk&funsZ'k
tkjh fd;s tk jgs gS A vki v{kj'k% vuqikyu
lqfuf'pr djsa] vkidks ;g Hkh lpsr fd;k tkrk gS
fd ;fn Hkfo"; esa dksbZ ,slk izdj.k laKku esa vkrk
gS ftlls ;g izrhr gks fd bu funsZ'kksa dk mYya?ku
fd;k x;k gS ;k izdj.k ds fo'ys"k.k ls ,slk Li"V
gks fd vkidh ;k vkids fdlh v/khuLFk }kjk
tkucw>dj] ykijokgh ;k =qfViw.kZ vkpj.k ds
dkj.k fdlh funsZ'k O;fDr ds fo:) mijksDr
vf/kfu;eksa ds vUrxZr dk;Zokgh dh x;h gS rks
nks"kh v/khuLFk iqfyl dfeZ;ksa ds vfrfjDr vkids
fo:) dBksj n.MkRed dk;Zokgh dh tk;sxh A

m0iz0 lekt fojks/kh fØ;k dyki ,oa
fxjksg cUn vf/kfu;e 1986 ds vUrxZr dk;Zokgh&

1& m0iz0 fxjksg cUn vf/kfu;e ,oa
lekt fojks/kh fØ;k dyki 1⁄4fuokj.k1⁄2 vf/kfu;e
1986 ds vUrxZr dk;Zokgh djus ds fy,
m0iz0''kklu
ds
'kklukns'k
la[;k&
3216@8&9&1986 fnukad 23 twu] 1986]
'kklukns'k la[;k 3352@ N&iq0&9&1997 fnukad
10 vDVwcj] 1997 }kjk foLr`r fn'kk funsZ'k tkjh
fd;s x;s gS A fdlh Hkh vijkf/kd izo`fRr ds
O;fDr ds fo:) dk;Zokgh djus ls iwoZ ;g
lqfuf'pr djsa fd lEcfU/kr O;fDr bl vf/kfu;e
ds vUrxZr dk;Zokgh fd;s tkus ds fy, ik= gS A

2& fdlh Hkh fxjksg ds fo:)
dk;Zokgh djus ds fy, mlds fo:) dsoy mUgha
ekeyksa dks vkijkf/kd lwph esa lfEefyr ekuuk
pkfg, ftu ekeyksa esa iqfyl } kjk foospuk ds
mijkUr vkjksi&i= izsf"kr dh tk pqdh gS ;k
U;k;ky; }kjk fopkj.k ds mijkUr vfHk;qDr dks
nks"keqDr fd;k tk pqdk gS] mls vkijkf/kd fooj.k
esa lfEefyr u fd;k tk;A

3& ftu ekeyksa ds vk/kkj ij m0iz0
lekt fojks/kh fØ;k dyki ,oa fxjksg cUn
vf/kfu;e ds vUrxZr dk;Zokgh dh x;h gS mlh
vk/kkj ij iqu% dk;Zokgh u dh tk;s vFkkZr fdlh
fxjksg ds fo:) m0iz0 lekt fojks/kh fØ;k dyki
,oa fxjksg cUn vf/kfu;e ds vUrxZr dk;Zokgh
djus ds ckn dksbZ u;k vijkf/kd d`R; izdk'k esa
vkus ij gh m0iz0 lekt fojks/kh fØ;k dyki ds
vUrxZr dk;Zokgh dh tk;s A

4& fdlh fxjksg ds fo:) dk;Zokgh
izkjEHk djus ds fy, Fkkuk/;{k }kjk fxjksg ds
vkijkf/kd fooj.k dk mYys[k djrs gq, pkVZ
rS;kj fd;k tk;sxk rFkk pkVZ ds vfrfjDr fxjksg
ds fdz;k dykiksa dk fooj.k nsrs gq, rFkk fxjksg
ds fdu&fdu O;fDr;ksa ds fo:) dk;Zokgh fd;k
tkuk izLrkfor gS] mldk Li"V mYys[k djrs gq,
izfrosnu izLrqr fd;k tk;sxk tks {ks=kf/kdkjh rFkk
vij iqfyl v/kh{kd dh Li"V laLrqfr ds ckn
ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd dks izLrqr
fd;k tk;sxk A

5& ofj"B iqfyl v/kh{kd@iqfyl
v/kh{kd izHkkjh vius Lrj ij fxjksg ds lnL;ksa ds
vkijkf/kd fooj.k rFkk muds fØ;k dykiksa dk
Hkyh Hkakfr ijh{k.k ds mijkUr ftykf/kdkjh ds
lkFk fopkj&foe'kZ djds lwph dks vfUre :i
iznku djsaxsA

6& izfrosnu rFkk xSax pkVZ ij ofj"B
iqfyl v/kh{kd@iqfyl v/kh{kd ,oa ftykf/kdkjh
ds vuqeksnu ds mijkUr vfxze dk;Zokgh dh
tk;sxh A

7& bl vf/kfu;e ds vUrxZr iathd`r
vfHk;ksxksa dh foospuk vfuok;Zr% Fkkuk izHkkjh }kjk
dh tkuh pkfg, A
186 INDIAN LAW REPORTS ALLAHABAD SERIES

8& bl vf/kfu;e ds vUrxZr iathd`r
vfHk;ksxksa dh foospuk ds ckn vkjksi&i= Hkstus ls
iwoZ ftykf/kdkjh ls lgefr izkIr dj yh tk;sxhA

9& foospuk dh vof/k esa ek0 mPpre
U;k;ky; ds vkj0 ljyk cuke Vh0,l0 osy ,oa
vU; esa ikfjr fu.kZ; fnukad 13 vizSy] 2002 dk
Hkh vuqikyu fd;k tk;sA

19. Here, it is pertinent to mention
here that above letters were issued by the
D.G. Police and thereafter G.O. Dated
02.01.2004, pursuant to the direction given
by this Court while deciding Writ Petition
No. 6249/2003 Inre: Amar Nath Dubey
Vs. State of U.P.

20. Noticing the above letter, and the
direction contained in the order of Division
Bench of this Court, Principal Secretary
(Homes)
issued
yet
another
set
of
procedure/instruction mentioning therein
the manner in which gang chart in relation
to offences under the Gangsters Act has to
be prepared. These were all ad hoc
practices adopted by higher bureaucracy
just to make a stop gap arrangement and an
effort to plug the void, in place of formal
Rules as contemplated by Section 23 of the
Act. Clause 2 of these instructions would
indicate the details of information that has
to be contained therein. The said instruction
issued by Principal Secretary Homes, in the
shape of Government Order is extracted
herein below: -

"la[;k
137
iz0la0@6&iq0&11&2003&581⁄4fjV1⁄2@2003

izs"kd]

vfuy dqekj]

izeq[k lfpo]

m0iz0 'kkluA

lsok esa]

leLr ftykf/kdkjh]

tuinh; ofj"B iqfyl v/kh{kd@iqfyl
v/kh{kd]

mRrj izns'kA

x`g 1⁄4iqfyl1⁄2 vuqHkkx&11 y[kum fnukad 2
tuojh 2004

egksn;]

ek0 mPp U;k;ky;] bykgkckn ds }kjk
fjV ;kfpdk la[;k 6249@2003 vejukFk nqcs cuke
m0iz0 jkT; ,oa vU; esa m0iz0 fxjksgcUn o
lektfcjks/kh fØ;k dyki fuokj.k vf/kfu;e ds
nq:i;ksx ij fpUrk O;Dr dh gSA ek0 mPp U;k;ky;
us m0iz0 fxjksgcUn fuokj.k vf/kfu;e m0iz0 xq.Mk
vf/kfu;e ,oa ,u0Mh0ih0,l0 vf/kfu;e ds lE;d
mi;ksx gsrq vko';d fn'kk funsZ'k tkjh djus ,oa
nq:i;ksx jksdus gsrq ;Fkksfpr dne mBkus ds fy, dMs
funsZ'k fn;s gS A

bu vf/kfu;eksa ds lE;d lnqi;ksx djus
,oa buds nq:i;ksx ds jksdFkke gsrq le; le; ij
foLr`r funsZ'k iwoZ esa tkjh fd;s x;s gSA ijUrq ,slk
izrhr gksrk gS fd bu vf/kfu;eksa dk nq:i;ksx jksdus
ds fy, 'kklu@iqfyl egkfuns'kd] m0iz0 }kjk tks
fn'kk funsZ'k tkjh fd;s x;s gS] mudk dMkbZ ls
vuqikyu ugha fd;k tk jgk gSA vki lger gksxsa fd
funksZ"k o fujijk/k O;fDr;ksa ds fo:) bu vf/kfu;eksa
ds vUrxZr fn;s x;s vf/kdkjksa dk nq:i;ksx dqN
vf/kdkfj;ksa }kjk fd;s tkus ds dkj.k 'kklu ,oa iqfyl
foHkkx dh Nfo ij izfrdwy izHkko iMrk gSA

vr% bl lEcU/k esa iqu% fuEufyf[kr fn'kk
funsZ'k fn;s tk jgs gS] ftudk dM+kbZ ls vuqikyu
lqfuf'pr fd;k tk;s&

1& leLr Fkkuk izHkkjh] {ks=kf/kdkjh] vij
iqfyl v/kh{kd ofj"B iqfyl v/kh{kd@iqfyl
v/kh{kd] izHkkjh tuin ,oa ftykf/kdkjh bl
vf/kfu;e esa fn;s x;s izkfo/kkuksa dk v/;;u djds
bldks Hkyh Hkafr le> ysaA bl gsrq ;g tku ysuk
jgsxk fd tuin Lrj ij ,d dk;Z'kkyk vk;ksftr
djk yh tk;s ftlesa lHkh vf/kdkfj;ksa ds vykok
tuin ds ftyk 'kkldh; vf/koDrk& QkStnkjh ,oa
T;s"B vfHk;kstu vf/kdkjh izHkkjh Hkh vo'; mifLFkr
jgsA ;fn fdlh vf/kdkjh dh fdlh Lrj ij bu
vf/kfu;eksa ds fdlh izkfo/kku ds ckjs esa fdlh izdkj
dh dksbZ 'kadk gks rks bl dk;Z'kkyk esa mudk
fujkdj.k djk fy;k tk;sA

2& bu vf/kfu;eksa ds lE;d iz;ksx djus]
n:i;ksx jksdus ds lEcU/k esa bl vkns'k ds ek/;e ls
fuEuor fn'kk funsZ'k vkidks fn;s tk jgs gSA d`i;k
budk dMkbZ ls vuqikyu lqfuf'pr djk;s &

m0iz0 fxjksgcUn ,oa lekt fojks/kh fØ;k
dyki 1⁄4fuokj.k1⁄2 vf/kfu;e ds lE;d mi;ksx
djus@nq:i;ksx jksdus ds lEcU/k esa fn'kk funsZ'k&

1& bl vf/kfu;e ds vUrxZr dk;Zokgh
dsoy mUgha vijkf/k;ksa ds fo:) dh tk;s] ftudh
1 All. Rajeev Agarwal Vs. State of U.P. & Anr.
187
vkijkf/kd xfrfof/k bl vf/kfu;e esa fn;s x;s
izkfo/kku dh ifjf/k ds vUrxZr vkrh gS A

2& fdlh fxjksg ds fo:) dk;Zokgh
izkjEHk djus ds fy, Fkkuk izHkkjh }kjk fxjksg ds
vkijkf/kd fooj.k dk mYys[k djrs gq, pkVZ rS;kj
fd;k tk;sxk rFkk pkVZ ds vfrfjDr fxjksg ds fØ;k
dykiksa dk fooj.k nsrs gq, rFkk fxjksg ds fdu fdu
O;fDr;ksa ds fo:) dk;Zokgh fd;k tkuk izLrkfor gS]
mldk Li"V mYys[k djrs gq, vk[;k izLrqr dh
tk;sxh] tks {ks=kf/kdkjh rFkk vij iqfyl v/kh{kd dh
Li"V laLrqfr ds ckn ofj"B iqfyl v/kh{kd@iqfyl
v/kh{kd izHkkjh dks izLrqr dh tk;sA

3& ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd
izHkkjh vius Lrj ij fxjksg ds lnL;ksa ds vijkf/kd
fooj.k rFkk muds fØ;k dykiksa dk Hkyh Hkakfr
ijh{k.kr ds mijkUr ftykf/kdkjh ds lkFk fopkj foe'kZ
djds bl lwph dks vfUre :i iznku djsaxsA

4& mDr vk[;k rFkk xSax pkVZ ij ofj"B
iqfyl
v/kh{kd@iqfyl
v/kh{kd
izHkkjh
,oa
ftykf/kdkjh ds vuqeksnu ds mijkUr vfxze dk;Zokgh
dh tk;sxhA

5& fdlh Hkh fxjksg ds fo:) dk;Zokgh
djus ds fy, mlds fo:) dsoy mUgha ekeyksa dks
vijkf/kd lwph esa lfEefyr ekuuk pkfg,] ftu ekeyksa
esa iqfyl }kjk foospuk ds mijkUr vkjksi i= izsf"kr
fd;k tk pqdk gSA ftu ekeyksa esa vfUre fjiksVZ izsf"kr
dh tk pqdh gS ;k U;k;ky; }kjk fopkj.k ds mijkUr
vfHk;qDr dks nks"keqDr fd;k tk pqdk gS mls
vkijkf/kd fooj.k esa lfEefyr u fd;k tk;sA

6& ftu ekeyksa ds vk/kkj ij m0iz0
lekt fojks/kh fdz;k dyki ,oa fxjksgcUn vf/kfu;e ds
vUrxZr dk;Zokgh dh x;h gS] mlh vk/kkj ij iqu%
dk;Zokgh u dh tk;sA vFkkZr fdlh fxjksg ds fo:)
m0iz0 lekt fojks/kh fØ;k dyki ,oa fxjksgcUn
vf/kfu;e ds vUrxZr dk;Zokgh djus ds ckn dksbZ u;k
vkijkf/kd d`R; tks bl vf/kfu;e ds izkfo/kkuksa dh
ifjf/k esa gks] izdk'k esa vkus ij gh m0iz0 lekt
fojks/kh fØ;k dyki ds vUrxZr dk;Zokgh dh tk;s A

7& bl vf/kfu;e ds vUrxZr iathd`r
vfHk;ksxksa dh foospuk vfuok;Zr% nwljs Fkkus ds izHkkjh
}kjk dh tkuh pkfg, A

8& bl vf/kfu;e ds vUrxZr iathd`r
vfHk;ksxksa dh foospuk ds ckn ofj"B iqfyl
v/kh{kd@iqfyl v/kh{kd izHkkjh ls vuqeksnu izkIr
djus ds mijkUr gh vkjksi i= U;k;ky; izsf"kr fd;k
tk;A

9& xjksgcUn vf/kfu;e ds vUrxZr
eqdnek iathd`r djus ds mijkUr foospuk ds i'pkr
U;k;ky; vkjksi i= izsf"kr djus gsrq vuqeksnu nsus ds
iwoZ ofj"B iqfyl v/kh{kd@iqfyl v/kh{kd izHkkjh dks
Hkyh Hkafr larq"V gks ysuk pkfg, fd okLro esa ekeyk
fxjksgxUn vf/kfu;e dh ifjf/k esa vkrk gS vFkok ughaA

10& ;gka ;g Hkh Li"V fd;k tkrk gS fd
;fn fdlh tuin esa bl vf/kfu;e esa fn;s x;s
izkfo/kkuksa ds lEcU/k esa fdlh v/khuLFk vf/kdkjh }kjk
vius drZO; ikyu dh mis{kk djus vFkok vius
vf/kdkj dk nq:i;ksx dk dksbZ ekeyk izdk'k esa vkrk
gS rks lEcfU/kr Fkkuk izHkkjh ,oa nks"kh ik;s x;s
vf/kdkjh ds vykok tuin ds ofj"B iqfyl
v/kh{kd@iqfyl v/kh{kd izHkkjh Hkh mRrjnk;h ekus
tk;saxsA

XXX XXXX XXX XXX XXXX XX
XXX

lkekU; funsZ'k&

1& bu fn'kk&funsZ'kksa ds vuqikyu
lqfuf'pr djkus dh ftEesnkjh tuin ds ofj"B iqfyl
v/kh{kd@iqfyl v/kh{kd izHkkjh dh gSA

2& ;fn fdlh tuin esa bu vf/kfu;eksa
ds nq:i;ksx fd;s tkus dk dksbZ ekeyk izdk'k esa vk;s]
rks fdlh Hkh Lrj ij nks"kh vf/kdkfj;ksa@deZpkfj;ksa dks
cpkus dk iz;kl u fd;k tk;s] ojUk nks"k fu/kkZj.k
djrs gq, rRijrk ls nks"kh ds fo:) dk;Zokgh dh
tk;sA

3& bu vf/kfu;eksa ds vUrxZr fn;s x;s
izkfo/kkuksa dk nq:i;ksx fd;s tkus dk ;fn dksbZ ekeyk
izFke n`"V;k lgh ik;k tk;s rks lEcfU/kr Fkkus ds
izHkkjh ,oa vU; nks"kh v/khuLFk iqfyl dfeZ;ksa dks Fkkus
ls gVk fn;k tk;s ,oa rRijrk ls tkap djkdj muds
fo:) n.MkRed dk;Zokgh dh tk;sA