# Salim v. State of U.P

- **Citation:** (2019) 4 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-13
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 11646 of 2007
- **Bench:** Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salim-v-state-of-u-p-44919
- **Pages:** 7

## Headnote

A. Criminal Law - U.P. Gangster & AntiSocial Activities (Prevention) Act, 1986 -
Sections 2/3 - Cr.P.C - Section 403 &
Section 482 - Implication on the basis of
a single case -The trial of the said case
commenced and after the trial the
applicant
was
acquitted
-
The
proceedings under the Gangsters Act are
not independent proceedings. There is
only
one
case
shown
against
the
applicant in the gang chart in which the
applicant
was
acquitted
by
the
competent
Court
and
therefore
his
implication and trial under Section 2/3 of
the Gangsters Act was not justified. (Para
14,15 & 16)

Application u/s 482 Cr.P.C allowed. (E-3)
List of cases cited: -

## Text

4 All. Salim Vs. State of U.P.
133
cannot be said that no prima facie
evidence
or
sufficient
ground
for
proceeding is there. At the time of passing
summoning order, Magistrate is only to
see prima facie evidence and sufficient
ground for proceeding.

18. Application under Section 482
Cr.P.C. is accordingly dismissed.
----------
(2019)12 ILR A133

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE
THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
11646 of 2007

Salim ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Anil Mullick

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - U.P. Gangster & AntiSocial Activities (Prevention) Act, 1986 -
Sections 2/3 - Cr.P.C - Section 403 &
Section 482 - Implication on the basis of
a single case -The trial of the said case
commenced and after the trial the
applicant
was
acquitted
-
The
proceedings under the Gangsters Act are
not independent proceedings. There is
only
one
case
shown
against
the
applicant in the gang chart in which the
applicant
was
acquitted
by
the
competent
Court
and
therefore
his
implication and trial under Section 2/3 of
the Gangsters Act was not justified. (Para
14,15 & 16)

Application u/s 482 Cr.P.C allowed. (E-3)
List of cases cited: -

1. Pritam Singh & anr. Vs. St. of Punj., AIR,
1956 Supreme Court 415

2. N.R. Ghosh Vs. the St. of W.B, AIR 1960
Supreme Court (SC) 239

3. Manipur Admin., Manipur Vs. Thokchon
Veere Singh, AIR 1965 (SC) 87

4. Lalta & ors. Vs. St. of U.P., AIR 1970 (SC)
1381

5. Municipal Corp. of Delhi vs. Shiv Singh 1971
(1) SCC 422

6. Bhagat Ram Vs. St. of Raj. (1972) 2 SCC
466

7. Masood Khan Vs. St. of U.P. (1974) 3 SCC
469

8. V.K. Agrawal, Assist. Collector of Customs
Vs. Vasant Raj Bhagwan Ji Bhatia & ors,
(1988) 3 SCC 467

9. Kolla Vira Raghav Rao vs. Gorantla
Vlalalalalal Rao, (2011) 2 SCC 703

(Delivered by Hon'ble Vivek Kumar
Singh, J.)

1. Heard Sri Anil Mullick learned
counsel for the applicant and Sri Abhinav
Prasad, learned A.G.A. on behalf of the
state.

2. This 482 Cr.P.C. application has
been preferred for quashing the charge
sheet No.117 dated 13.9.2001, under
Section 2/3 The U.P. Gangster & Anti
Social
Activities
(Prevention)
Act,
1986,Police Station Kotwali, District
Meerut, pending in the Court of learned
Special Judge Gangster Act, Meerut.

3. The facts of the case are that a
first information report was lodged
134 INDIAN LAW REPORTS ALLAHABAD SERIES
against the applicant as case crime
No.166 of 2000, under Sections 2/3 of the
U.P. Gangster & Anti Social Activities
(Prevention) Act, 1986, Police Station
Kotwali, District Meerut and only on the
basis of a single case i.e. case crime
no.166 of 2000, under Section 384/506
I.P.C. read with Section 7 Criminal Law
Amendment Act, Police Station Kotwali,
District Meerut, after investigation the
Investigating
Officer
has
submitted
charge
sheet
against
four
persons
including the applicant. The trial of the
said case commenced and after the trial
the applicant was acquitted by the
judgment and order dated 27.4.2001
passed in Criminal Case No.871 of 2000.

4. During the pendency of the
aforesaid trial a first information report
was lodged against the accused, including
the applicant on 13.8.2000 under Section
2/3 of the U.P. Gangster Anti-Social
Activities
(Prevention)
Act
1986
(hereinafter referred to as "Gangster Act")
only. The sole basis of lodging of the first
information report against the applicant
was the implication in case crime no.166
of 2000, under Section 384/506 I.P.C.
read with Section 7 Criminal Law
Amendment Act, Police Station Kotwali,
District Meerut, he was acquitted on
27.4.2001. Before acquittal chargesheet
dated 15.12.2007 was filed against the
applicant.

5. Counter affidavit has been filed
on behalf of the state stating that the
applicant is an accused in the eye of law
who has involved himself in anti-social
activities. During investigation of the case
evidence also came to light that the
applicant formed a gang which is
involved in extortion of money from
innocent people and therefore he was
implicated in the case under Gangster
Act. Even after acquittal in case crime
no.166 of 2000, under Section 384/506
I.P.C. read with Section 7 Criminal Law
Amendment Act, Police Station Kotwali,
District Meerut, he cannot be discharged
from the proceedings under the Gangster
Act and he does not deserve any relief
from this court.

6. Learned counsel for the applicant
submits that the very basis of initiation of
F.I.R. under Gangster Act was the
statements recorded under Section 161
Cr.P.C. of case crime no.166 of 2000,
under Section 384/506 I.P.C. read with
Section 7 Criminal Law Amendment Act,
Police Station Kotwali, District Meerut.
Learned counsel submitted that said basis
for initiation of F.I.R. under Gangster Act
has been disbelieved by the trial Court as
the applicant has been acquitted in the
aforesaid crime, which acquittal order has
not been challenged as yet. It is further
contended that once very basis of
initiation of Gangster's Act proceedings
diminished, the entire trial procedure and
rigmarole of proceedings of criminal trial
under that Act will be nothing but only
wastage of time of Court. The learned
counsel for the applicant has relied upon
the judgment of the Apex Court in the
case of Pritam Singh and another vs.
State of Punjab, AIR, 1956 Supreme
Court 415 in support of his contention
that once the revisionist was acquitted by
the competent court for the case crime
no.166 of 2000, under Section 384/506
I.P.C. read with Section 7 Criminal Law
Amendment Act, his trial under the
provisions of Gangster Act would not be
justified since the basis of implication in
the case under the Gangsters Act was the
case registered against the applicant in
case crime no.166 of 2000, under Section
4 All. Salim Vs. State of U.P.
135
384/506 I.P.C. read with Section 7
Criminal Law Amendment Act. His
contention is that his trial under the
Gangster's
Act
would
require
trial
regarding the same offence which was not
found to have been proved by the trial
court in the earlier case. He has relied
upon the following observations of the
Apex Court in the above mentioned case:-

"The effect of a verdict of
acquittal pronounced by a competent
Court on a lawful charge and after a
lawful trial is not completely stated by
saying that the person acquitted cannot be
tried again for the same offence. To that it
must be added that the verdict is binding
and
conclusive
in
all
subsequent
proceedings between the parties to the
adjudication.

The maxim 'res judicata pro
veritate accipitur' is no less applicable to
criminal than to civil proceedings. Here,
the appellant having been acquitted at the
first trial on the charge of having
ammunition
in
his
possession,
the
prosecution was bound to accept the
correctness of that verdict and was
precluded from taking any steps to
challenge it at the second trial".

7. In support of his contention
learned
counsel
has
further
placed
reliance on the judgment of the Apex
Court in the case of N.R. Ghosh vs. the
State of West Bengal, AIR 1960 Supreme
Court (SC) 239 and has relied upon in
paragraph 22 of the same reads as under:-

"The principle stated in the
section is that when a person has once
been tried by a court of competent
jurisdiction for an offence and convicted
or acquitted of it, he shall not while the
conviction or acquittal remains in force,
be tried again for the same offence. In
order, therefore, that the appellant may
have the benefit of the section he must
have been tried by a court of competent
jurisdiction. Furthermore, such acquittal
must be in force."

8. Reference to the Apex Court
judgment in the case of Manipur
Administration, Manipur vs. Thokchon
Veere Singh, AIR 1965 (SC) 87 has also
been made wherein paragraph 6 are as
follows:-

Before referring to the decision
of this Court in Pritam Singh v. State of
Punjab(1) it would be convenient to refer
to and put aside one point for clearing the
ground. Section 403, Criminal Procedure
Code embodies in statutory form the
accepted English rule of autre fois acquit.
This section is as follows:-

"403 (1) A person who has been
once tried by a Court of competent
jurisdiction for an offence and convicted
or acquitted of such offence shall, while
such conviction or acquittal remains in
force, not be liable to be tried again for
the same offence, nor on the same facts
for any offence for which a different
charge from the one made against him
might have been made under s. 236, or for
which he might have been convicted
under section 237. (2) A person acquitted
or convicted of any offence may be
afterwards tried for any distinct offence
for which a separate charge might have
been made against him on the former trial
under section 235, sub-section (1). (3) A
person
convicted
of
any
offence
constituted
by
any
act
causing
consequences which, together with such
act, constituted a different offence from
that of which he was convicted may be
afterwards tried for such last mentioned
136 INDIAN LAW REPORTS ALLAHABAD SERIES
offence, if the consequences had not
happened, or were not known to the Court
to have happened, at the time when he
was convicted.

(4) A person acquitted or
convicted of any offence constituted by
any acts may, notwithstanding such
acquittal or conviction, be subsequently
charged with, and tried for, any other
offence constituted by the same acts which
he may have committed if the Court by
which he was first tried was not
competent to try the offence with which he
is subsequently charged.

(1) A.T.R. 1956 S.C. 415.

(5) Nothing in this section shall
affect the provisions of section 26 of the
General Clauses Act, 1897, or section 188
of this Code.

Explanation-The dismissal of a
complaint, the stopping of proceedings
under section 249, the discharge of the
accused or any entry made upon a charge
under section 273, is not an acquittal for
the purposes of this section." Section 26
of the General Clauses Act which is
referred to in s. 403 enacts:

"26. Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be
liable to be prosecuted and punished
under either or any of those enactments,
but shall not be liable to be punished
twice for the same offence."

We
might
also,
in
this
connection, refer to Art. 20(2) of the
Constitution since it makes provision for a
bar against a second prosecution in an
analogous case. That provision reads:

"20(2). No person shall be
prosecuted and punished for the same
offence more than once." As has been
pointed out by this Court in State of
Bombay v. S. L. Apte(1), both in the case
of Art. 20(2) of the Constitution as well as
s. 26 of the General Clauses Act to
operate as a bar the second prosecution
and
the
consequential
punishment
thereunder, must be for "same offence"
i.e., an offence whose ingredients are the
same. It has been pointed out in the same
decision that the V Amendment of the
American Constitution which provides
that no person shall be subject, for the
same offence, to be twice put in jeopardy
of life or limb, proceeds on the same
principle.

9. Reliace on Apex Court judgment
in the case of Lalta and others vs. State
of U.P., AIR 1970 (SC) 1381 has been
made, wherein case of Pritam Singh's
(supra) and Manipur Administration's
case (supra) have been accepted as
binding
authorities
on
the
issue.
Reference to Municipal Corporation of
Delhi vs. Shiv Singh 1971 (1) SCC 422
has been made where Section 26 of the
general clauses Act 1897 were considered
regarding the question of double jeopardy
in relation to prosecution of an accused
for single offence under two enactments
and it was held that Section 26 of the
general clauses Act prevents accused
from double penalty. This judgment has
been relied by the counsel to advance the
proposition that the prosecution of the
revisionist under the general provisions of
Indian Penal Code and then under the
provisions of Special Act i.e., Gangster
Act on the basis of implication in the case
under Section I.P.C., wherein he has been
acquitted should not be permitted.

10. Counsel for the applicant has
referred to the judgment, Bhagat Ram vs.
State of Rajasthan (1972) 2 SCC 466,
wherein the Apex Court held that even if
an order of acquittal is passed by Division
Bench of the Court, it is not open for the
4 All. Salim Vs. State of U.P.
137
third Judge of the same Court in a
subsequent stage of the same proceedings
to convict the person unless the judgment
of the Division Bench is set aside by the
Supreme Court. In view of the principle
embodied in Section 403 I.P.C.

11. The counsel has relied upon the
judgment, Masood Khan vs. State of U.P.
(1974) 3 SCC 469, wherein the issue
decided was that for getting the benefit of
the principle of issue of estoppel both the
proceedings
should
be
criminal
proceedings and where one proceeding is
civil and the other is criminal, the benefit
of this principle will not be extended to
the accused. Reference to V.K. Agrawal,
Assistant Collector of Customs vs.
Vasant Raj Bhagwan Ji Bhatia and
others, (1988) 3 SCC 467 has also been
made.

12. Learned counsel for the
applicant has argued that in the present
case the prosecution of the applicant is
being made under the Gangsters Act.
After acquittal under the provisions of
I.P.C. If two constructions are possible
one leading to anamoly, absurdity and
unconstitutionality should be avoided.

13. Learned counsel for the
applicant has relied upon the judgment in
the case of Kolla Vira Raghav Rao vs.
Gorantla Vlalalalalal Rao, (2011) 2 SCC
703. In this case the Apex Court
disapproved the prosecution
of the
accused under Section 420 I.P.C. After he
was convicted under Section 138 N.I. Act,
holding that the subsequent prosecution is
barred by article 20(2) and Section 300(1)
Cr.P.C. once the facts are the same.

14. After considering the authorities
cited by the counsel for the applicant it is
clear that the applicant was implicated in
the Gangsters Act only on account of
involvement in the case crime no.166 of
2000, under Section 384/506 I.P.C. read
with Section 7 Criminal Law Amendment
Act. The proceedings under the Gangsters
Act are not independent proceedings. The
implication of the applicant in the offence
under the Gangsters Act was only because
of the one case registered against him as
case crime no.166 of 2000, under Section
384/506 I.P.C. read with Section 7
Criminal Law Amendment Act, as clear
from the gang chart annexed with the
affidavit in support of this 482 Cr.P.C.
application. The definition of gang is
given in Section 2(b) which is as follows:-

Section 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 antisocial 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
138 INDIAN LAW REPORTS ALLAHABAD SERIES
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 vehicle from
following its scheduled course.

15. A perusal of the aforesaid
sections shows that the applicant was
implicated in an offence under chapter 16,
I.P.C. and therefore he was implicated in
the case under the Gangsters Act. There is
only one case shown against the applicant
in the gang chart in which the applicant
was acquitted by the competent Court and
therefore his implication and trial under
Section 2/3 of the Gangsters Act was not
justified.

16. From the law of the Apex Court
as discussed above it is crystal clear that
the trial of the applicant for an offence
under Section 2/3 of the Gangsters Act is
not justified. In view of the fact that only
one case is registered against him and he
has been acquitted in that case.

17.

In
view
of
the
above
consideration of the facts of the case and
law cited the charge sheet No.117 dated
13.9.2001, under Section 2/3 of The U.P.
Gangster
&
Anti
Social
Activities
(Prevention) Act, 1986, Police Station
Kotwali, District Meerut, pending in the
Court of learned Special Judge Gangster
Act,
Meerut,
is
hereby
quashed.
4 All. M/S Ganesh Anhydride Ltd. & Ors. Vs. Addl. Chief Judicial Magistrate & Anr.
139
18. This application under Section 482
Cr.P.C. henceforth is allowed.
----------

(2019)12 ILR A139

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2019
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
14529 of 2004

M/S Ganesh Anhydride Ltd & Ors.
 ...Applicants
Versus
Addl. Chief Judicial Magistrate & Anr.
 ...Opposite Parties

Counsel for the Applicants:
Sri Vijai Prakash

Counsel for the Opposite Parties:
A.G.A., Sri Vipin Saxena

A.
Criminal
Law
-
Negotiable
Instruments Act, 1981- Sections 138,
141 & 142 read with Indian Penal Code,
1860 - Section 420 - The mere fact that
cheque is for a higher amount, will not
dilute the liability of drawer to the
extent
of
amount
which
was
for
discharge of "due debt" or "liability"
stood dishonoured. It cannot be said that
non encashment of cheque to the extent
it was for discharge of due debt and
liability would not come within the
purview of Section 138 of Act, 1981.

Application u/s 482 Cr.P.C rejected. (E-2)

List of cases cited: -

1. Indus Airways Pvt. Ltd. & ors vs. Magnum
Aviation Pvt. Ltd. and anr, 2014(12) SCC 539

2. Sampelly Satyanarayana Rao vs. Indian
Renewable Energy Development Agency Ltd.,
2016(10) SCC 458
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This application under Section
482 Cr.P.C. has been filed by M/s Ganesh
Anhydride Ltd. and nine others with a
prayer to quash Complaint Case No. 805
of 2004 pending in the Court of
Additional Chief Judicial Magistrate,
Ghaziabad under Sections 138, 141, 142
of Negotiable Instruments Act, 1981
(hereinafter referred to as "Act, 1981")
read with Section 420 IPC and also to set
aside summoning order dated 21.03.2002
as also bailable warrant dated 14.12.2004.

2. Facts in brief giving rise to
present application are that M/s Morgan
Securities
and
Credit
Pvt.
Ltd.
(hereinafter
referred
to
as
"Complainant") has its registered office at
53, Friends Colony, East, New Delhi. It is
a Company incorporated under the
provisions of Companies Act, 1956
(hereinafter referred to as "Act, 1956").
Similarly,
applicant-M/s
Ganesh
Anhydride Ltd. (hereinafter referred to as
"Accused-1")
is
also
a
Company
registered and incorporated under the
provisions of Act, 1956 and Accused-2 to
10 are Managing Director, Directors and
other persons, incharge, and responsible
for conduct of business of Accused-1.
Accused-3, Ramesh Pilani, approached
Complainant for financial assistance to
meet working capital requirement of
Accused-1 by way of Inter Corporate
Deposit (hereinafter referred to as
"Facility for an aggregate amount of Rs.
100 lacs, in one or more trenches, with a
promise that Accused-1 stood guarantor
and repay the money/ amount taken from
Complainant
as
per
the
agreement
executed
between
parties.
Deed
of
Corporate Guarantee was executed on
07.03.2000
between
Accused-1
and