# Santosh Batham v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-30
- **Case number:** Misc. Bench No. 13298 of 2021
- **Bench:** Ramesh Sinha, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-batham-v-state-of-u-p-ors-47238
- **Pages:** 11

## Headnote

Criminal Law - U.P. Gangsters and Anti
Social Activities (Prevention), 1986 -
Section 2 - 'indulge in anti-social activities' -
FIR can be maintained even for single incident
of anti-social act & a person, even for a single
incident, may be prosecuted under the
Gangster Act - under this Act, a person can be
accused of an offence only if he had chosen to
join a group which indulged in anti-social
activities, defined under the Act, with use of
force
for
obtaining
material
or
other
advantages to himself or to any person (Para
25)

Case of prosecution is that being in an
organized gang as member of the gang, the
petitioner is found indulged in offences of
serious nature to make economical, material
and unlawful gain - there is no rebuttal of this
report made by the petitioner in his affidavit by
pleading - F.I.R. discloses cognizable offence
against the petitioner - no ground exists for
quashing of the F.I.R. or staying the arrest of
the petitioner - writ petition dismissed.

Dismissed. ( E-4)

List of Cases cited :
620 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

7 All. Santosh Batham Vs. State of U.P. & Ors.
619
whether the case shall ultimately end in
submission of charge sheet and then
eventually in conviction or not. Only a
prima facie satisfaction of the court about
the existence of sufficient ingredients
constituting the offence is required in order
to see whether the F.I.R. requires to be
investigated or deserves quashing. The
ambit of investigation into the alleged
offence is an independent area of operation
and does not call for interference in the
same except in rarest of rare cases.

(24) Keeping in view the aforesaid
law and considering the submissions raised
by learned counsel for the petitioner, we are
of the considered view that the submissions
advanced by the learned Counsel for the
petitioner
call
for
determination
on
questions of fact which may be adequately
discerned
either
through
proper
investigation or which may be adjudicated
upon only by the trial court and even the
submissions made on points of law can also
be more appropriately gone into only by the
trial Court in case a charge sheet is
submitted in this case. The perusal of the
record makes out, prima facie, offences at
this stage and there appears to be sufficient
ground for investigation in the case.

(25) In view of the aforesaid,
considering the allegations made in the FIR
and material brought on record, it cannot be
said that no prima facie case is made out
against the petitioner, rather there appears
to be sufficient ground for investigation in
the matter. Accordingly, we do not find any
justification to quash the impugned F.I.R.

(26) The petition lacks substance and
is, accordingly, dismissed.
----------
(2021)07ILR A619
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Misc. Bench No. 13298 of 2021

Santosh Batham ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amit Chaudhary, Pradeep Tiwari, Sonu
Shukla

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Gangsters and Anti
Social Activities (Prevention), 1986 -
Section 2 - 'indulge in anti-social activities' -
FIR can be maintained even for single incident
of anti-social act & a person, even for a single
incident, may be prosecuted under the
Gangster Act - under this Act, a person can be
accused of an offence only if he had chosen to
join a group which indulged in anti-social
activities, defined under the Act, with use of
force
for
obtaining
material
or
other
advantages to himself or to any person (Para
25)

Case of prosecution is that being in an
organized gang as member of the gang, the
petitioner is found indulged in offences of
serious nature to make economical, material
and unlawful gain - there is no rebuttal of this
report made by the petitioner in his affidavit by
pleading - F.I.R. discloses cognizable offence
against the petitioner - no ground exists for
quashing of the F.I.R. or staying the arrest of
the petitioner - writ petition dismissed.

Dismissed. ( E-4)

List of Cases cited :
620 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Padma Mishra Vs St. of Uttarakhand & anr.
Cri. Appeal No.20/2010 dt 13.02.2020

2. R.P. Kapur Vs St. of Pun. 1960 CriLJ 1239

3. St. of Har. & ors. Vs Bhajan Lal & ors. AIR
1992 SC 81

4. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maha & ors. Cri. Appeal No. 330 of 2021

5. St. ofW.B. & ors. Vs Swapan Kumar Guha &
ors. AIR 1982 SC 949

6. Sudha Singh Vs The St. of U.P. & anr. AIR
2021 SC 2149

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The petitioner has filed this writ
petition
under
Article
226
of
the
Constitution of India, with a prayer to issue
writ of Certiorari or direction in the nature
of Certiorari to quash the first information
report
bearing
no.0165/2021,
under
Sections 2/3 of Uttar Pradesh Gangster and
Anti-Social Activities (Prevention) Act
which shall hereinafter be referred as
'Gangster Act' only for the purpose of
brevity and convenience.

2. The matter is to be heard before
this Court as fresh for hearing through
virtual mode. Learned counsel for the
petitioner Sri Amit Chaudhary, Advocate
and learned A.G.A. for and on behalf of the
State Ms. Nand Prabha Shukla, Advocate
appear through video conferencing. Heard
the learned counsels and perused the
record.

3. For the purpose of easy reference, the
relief sought in the petition is reproduced
hereunder from the prayer part of the petition.

"i) issue a writ of Certiorari or a
writ order or direction in the nature of
Certiorari to quash the impugned F.I.R.
No.0165/2021 Under Sections 2/3 Uttar
Pradesh
Gangster
and
Anti-social
Activities (Prevention) Act, 1986 Police
Station- Ganga Ghat District Unnao,
Annexure No.1 to this writ petition.

ii) issue a writ of Certiorari or a
writ order or direction in the nature of
Certiorari to quash the Gang Chart."

4. Consequent upon the aforesaid two
main reliefs, an ancillary relief is also
sought to issue the writ or direction in the
nature of Mandamus commanding the
opposite parties not to arrest the petitioner
in pursuance to impugned first information
report.

5. The petitioner-accused is arraigned
alongwith two other co-accused in F.I.R.
No.0165/2021 Under Sections 2/3 Uttar
Pradesh Gangster and Anti-social Activities
(Prevention) Act, 1986 Police Station-
Ganga Ghat District Unnao, hereinafter
referred as "Gangster Act".

6. The first information report and the
gang chart prepared therein is made
annexure no.1 to the petition which
discloses that the Police Station Ganga
Ghat, District Unnao has lodged the
impugned First Information Report under
Section 2/3 of Gangster Act against the
petitioner alongwith two others namely
'Birbal Gujrati' S/o Gangaram R/o 14/7,
Champapurva, Ganga Ghat, Unnao, Uttar
Pradesh who is assigned the role of gang
leader and 'Ram Surat Pandey' S/o Jagdish
Prasad, R/o 15/232, Shakti Nagar, Shukla
Ganj, Ganga Ghat, Unnao, Uttar Pradesh as
member of the gang.
7 All. Santosh Batham Vs. State of U.P. & Ors.
621

7. The perusal of gang chart shows
that Santosh Batham, the petitioner is
indulged in Case Crime No.97/2018, under
Sections 419, 420, 447 of Indian Penal
Code, 1860 and Section 3 of Damage To
Public Property Act, Police Station Ganga
Ghat, District Unnao.

8. It is also reported that in aforesaid
case, charge sheet has already been filed in
the trial court on 26.12.2018. In the
impugned first information report under
Gangster Act, it is reported that the gang
leader
Birbal
Gujarati
alongwith his
companions and members of gang do the
offences to earn for themselves physical
and financial gains and basic benefits,
grabbing the possession of the land and
threaten life and property to the affected
person or anyone else if they protest. The
manner of commission of their offence is
very henious.

9. It is further reported in the first
information report that for the reason of
committing heinous crime by them as
defined in Chapters XVI, XVII and XXII
of the Indian Penal Code, 1860 in District
Unnao, there is so much fear and terror in
the public mind that any person amongst
the public has no courage to testify against
them. In such a situation, it is not
appropriate to let them roam freely.

10. The said first information report
in the course of due approval in hierarchy
lastly reached to the District Magistrate,
opposite party no.3. In their sinonimos
opinion as to the report of SHO, they were
satisfied with the fact of accused persons'
indulgence in crime and their terror in the
public. To signify this satisfaction as well
to accord approval, District Magistrate also
signed the satisfaction recorded to the
effect, "I have thoroughly perused the gang
chart and resolved that the accused persons
shown in the gang chart are an organized
gang who are indulged in serious incidents
for their economic, material and undue
gains, therefore, action under Section 2/3 of
Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 are
necessary to be taken".

11. Like all other criminal cases
instituted
against
an
accused,
the
prosecution in the present case also is duty
bound to initiate investigate and collect the
evidence. The investigation culminates into
submission of charge sheet. Thereafter
charges are framed by the Court providing
the opportunity of hearing upon the
framing of charges and when the accused
are not discharged, the prosecution begins
with evidence before the Court competent
to try the offences against the accused
shown in the gang chart. The incriminating
facts in charges are to be testified by
prosecution evidence to prove them beyond
all reasonable doubt.

12. The defense has to cross-examine
the prosecution witnesses so as to test the
veracity of the witnesses, this is the only
course to assail the case of prosecution as
disproved or false, baseless and malafide.
Unless the veracity of the prosecution case
is tested in the trial, none can speculate,
imagine or make a hypotheses of the falsity
of the prosecution case. However, on the
basis of probability factor, it may be prima
facie seen whether the prosecution case is
sound or baseless.

13. Hon'ble the Apex Court in a
recent judgment of Padma Mishra Vs.
622 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Uttarakhand & Anr.1 in Criminal
Appeal No.20/2010 decided on 13.02.2020,
Hon'ble Ms. Indira Banerjee, J. speaking
for the Bench, dismissing the Criminal
Appeal preferred against order of the High
Court rejecting the prayer in Writ Petition
to quash the F.I.R. under Section 2/3 of
Gangster Act, held:-

"In proceedings under Article
226 of the Constitution of India, the High
Court does not adjudicate the correctness
of the allegations in an FIR. The Court
may only intervene in exceptional cases,
if the allegations made in the FIR ex facie
do not disclose any offence at all."

14. Before discussing any more in
the facts of the case, the legal position as
has been laid down by our High Court
and Hon'ble the Supreme Court from time
to time in various cases should be
referred.

15. In the case of R.P. Kapur Vs.
State of Punjab2, Hon'ble the Apex
Court summarized some category of
cases where inherent power can and
should
be
exercised
to
quash
the
proceeding, which are as follows:-

(i) where it manifestly appears
that there is a legal bar against the
institution
or
continuance
of
the
proceedings;

(ii) where the allegations in the
first information report or complaint taken
at their face value and accepted in their
entirety do not constitute the offence
alleged;

(iii)
where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.

16. Further in State of Haryana and
Ors. Vs. Bhajan Lal and Ors.3 in para
102 some guidelines were formulated
relating to the exercise of extra ordinary
power of the Court under Article 226 of the
Constitution of India from the inherent
power under Section 482 Cr.P.C., which are
as follows:-

"102. (1) Where the allegations
made in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the Act concerned (under
7 All. Santosh Batham Vs. State of U.P. & Ors.
623
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the Act
concerned, providing efficacious redress
for the grievance of the aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

17. In the light of the aforesaid
guidelines issued by the Hon'ble Supreme
Court, the grounds taken by the petitioner
for quashing of the first information report
impugned in this petition are to be seen,
which are briefed as under:-

i) No case is made out against the
petitioner for the offence under Section 2/3
of 'Gangster Act' because of only one single
criminal case no. 97/2018, under Sections
419, 420, 447 of Indian Penal Code, 1860
r/w Section 3 of Damage To Public
Property Act is shown in the gang chart.

ii)
District
Magistrate
in
approving gang chart did not apply his
mind as no reasons are recorded by him
and the lodging of F.I.R. under Gangster
Act is malafide.

iii) The petitioner has right to life
which include to live with honour and
dignity and fundamental right of the Article
21 of the Constitution of India cannot be
interfered
lightly.
The
petitioner
is
apprehending his arrest.

18. Sections 2(b) and 2(c) of the
Gangsters Act define as : "gang" and
Gangster.

"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
Signature
Not
Verified activities.

2(c)"gangster" means a member
or leader or organizer 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."

19. In judgment of Padma Mishra
Vs. State of Uttarakhand & Anr. (Supra),
Hon'ble the Supreme Court held as
follows:-

"The definition of gangster is
made in the Gangsters Act and includes any
person who is a member or leader or
organizer of a gang or abets or assists in the
activities of a gang, which includes
violence, threat, intimediation, coercion
with the object of disturbing public order or
of going any undue advantage for himself
or any other person."

20.

The
allegations
in
the
complaint/information are always treated as
the basis of prosecution. It is admitted fact
that petitioner is indulged in Case Crime
No. 97/2018, under Sections 419, 420, 447
of Indian Penal Code, 1860 and Section 3
of Damage To Public Property Act, Police
Station Ganga Ghat, District Unnao. On
perusal of the first information report, there
624 INDIAN LAW REPORTS ALLAHABAD SERIES
is clear mention of the aforesaid case and
some other cases against the other members
of the gang in addition to their indulgence
in activities of the like nature is also stated.
Their terror and fear in the mind of the
public of the locality is also stated by
reason of committing offence of land
grabbing, taking forcible possession of the
land. Their terror is so much that no person
from the public has courage to testify
against them. The Court without assessing
the genuineness and substantive proof
supporting the allegations is to consider
whether the allegations leveled are possible
and they if taken at their face value and
accepted in their entirety constituted the
cognizable offence.

21. Here in the present case, the
allegations in the first information report
seems probable as criminal cases of like
nature already registered against the
members of group and they are reported
indulged in criminal activities of like
nature. It is established law as laid down by
Hon'ble the Supreme Court and High
Courts that while examining the first
information report/complainant, quashing
of which is sought, the Court could not
embark upon the enquiry as to the legality
or genuineness or otherwise of the
allegations made in the FIR/Complaint.

22. The first ground raised for
quashing of the F.I.R. has already been
decided by our High Court in a Division
Bench in Criminal Writ Petition No.835 of
1998 decided on 24.03.1998 in the case of
Subhash; Gulab Singh; Anish Vs. State of
U.P. and Anr.4

23. Before the Devision Bench of this
Court, the issue was raised, "There could
not be prosecution under the Act for a
single incident as the Act spoke of Anti
Social Activities. The Devision Bench
referred another Full Bench case of Ashok
Kumar Dixit Vs. State of U.P.5 at para 22,
wherein the object and reason behind the
enactment of Gangster Act was quoted. The
same is as under:-

"gangsters
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 this
new menace. With a view to break the
gangs by punishing the gangsters and to
nip in the bud their conspiratorial designs
it was considered necessary to make
special provisions for the prevention of,
and for coping with gangsters and antisocial activities in the State"

24. The preamble of the Act was also
quoted as below:-

"an
Act
to
make
special
provisions for the prevention of, and for
coping with gangsters and anti-social
activities
and
for
matters
connected
therewith or incidental thereto".

25. While holding the constitutional
validity of the various provisions of the
Gangster Act, the Court was of the view
that under this Act, a person can be
accused of an offence only if he had
chosen to join a group which indulged in
anti-social activities, defined under the
Act, with use of force for obtaining
material or other advantages to himself or
to any person. The element of actuaries was
clearly present in the offence created under
the statute, as observed by the Full Bench.

26. The Full Bench further observed
in paragraph 60 of the judgment that under
the ordinary criminal law, it was some
7 All. Santosh Batham Vs. State of U.P. & Ors.
625
times difficult to bring to book the over
lords of crime and under world because
they seldom operated in person or in public
gaze.
They
indulged
in
clandestine
operations which threaten to tear apart the
very fabric of the society. In the immediate
next paragraph again a note of caution was
sounded by the Full Bench ob serving
"provisions of the Act cannot be used as a
weapon to wreck vengeance or harass or
intimidate innocent citizens or to settle
scores on political or other fronts. The
prosecution has to bear in mind that it has
to bring home the guilt.

27. On the basis of above discussions,
now it is established by law that a person
even for a single incident may be
prosecuted under the Gangster Act.

28. So far as the second ground raised
by the petitioner against first information
report as to the District Magistrate did not
apply it's mind before granting approval to
the gang chart is concerned, it seems not
correct. In the first information report and
the gang chart made annexure by the
petitioner himself, it is categorically stated
that the petitioner alongwith other coaccused are found indulged in various
offences of serious nature and thus there is
terror and fear in the mind of public. They
are found indulged in the crime in
organized manner in the incident of
grabbing land forcibly, evicting people
from their house. In substance, the first
information report contains the allegations
that the petitioner and the others are taking
recourse of public threats and coercion
including physical violence to gang the
voices of witness in cases against them.
The criminal case shown in the gang chart
against the present petitioner as well as his
companions, the group members and
leader of the gang is evident of this
opinion. It is also noteworthy that the gang
leader and other members of the group are
involved in other offences of like nature
shown in the gang chart.

29. It was observed in the Ashok
Kumar Dixit Vs. State of U.P. (Supra) that
a person was not liable to be punished
under the Act merely because he happened
to be a member of the group. The Court
was, rather, of the view that a person could
be accused of an offence only if he had
chosen to join a group which indulges in
anti-social activities, defined under the Act,
with use of force for obtaining material or
other advantages to himself or to any
person. The Court was of the view "the
element of actuaries is hence clearly
present in the offence created under the
statute. " Whereon any act or omission
covered by Sections 2 and 3 of the Act is
reported an offence is made out and as a
corollary it may be indicated without any
fear of contradiction that unless an
allegation is there concerning an act or
omission on the part of an accused, covered
by the definition of the term "gang" or
"gangster",
no
F.
I.
R.
should
be
maintainable. Whether the al legations are
true or false will be a matter for
investigation, but unless the allegations of
an offence under the Act are indicated, an
F. I. R. may not be justifiable whatever
large the number of past acts be alleged
against him.

30. In the present case, the first
information report and the gang chart, as
such, allegations, as indicated in the
decision of the Full Bench in Ashok Kumar
Dixit Vs. State of U.P. (Supra), the
626 INDIAN LAW REPORTS ALLAHABAD SERIES
apprehension is clearly recorded by the
police officers whereupon the District
Magistrate after perusal approved the gang
chart and first information report, therefore,
it can not be said that while approving, the
District Magistrate did not apply his mind.

31. In Neeharika Infrastructure Pvt.
Ltd. vs. State of Maharastra and Ors.6, it
is held by Hon'ble the Supreme Court in the
concluding para of the judgment that police
has the statutory right and duty in the
relevant provision of the Code of the
Criminal Procedure, contains in Chapter
XV of the Code to investigate into
cognizable offence.

32. Lodging of the first information
report,
precedes
the
investigation
as
provided under Section 154, 155, 156 and
157 of the Cr.P.C. The Station House
Officer of Police Station is under duty to
reduce into writing, the information given
by the informant/victim or as observed by
himself into the general diary. The
information is not necessary to be much in
detail
or
broad
description
like
encyclopedia rather precise and concise,
statements of facts only necessary to
disclose the commission of a cognizable
offence.

33. At this stage, we can not find out
any prima facie assessment of the falsity of
the allegations, therefore, in exercise of our
extra ordinary power under Article 226 of
the Constitution of India, we can not quash
the first information on this ground.

34. The argument of learned counsel
for the petitioner that the criminal case
shown in the gang chart against the name
of petitioner placed at serial no.3, is prima
facie not found established against the
petitioner nor there is any incriminating
evidence on the record of the said case
against the petitioner is of no avail to assail
the
instant
first
information
report
impugned in the petition.

35. In the aforesaid writ petition, the
first information report in Case Crime No.
97/2018, under Sections 419, 420, 447 of
Indian Penal Code, 1860 and Section 3 of
Damage To Public Property Act, Police
Station Ganga Ghat, District Unnao, the
aforesaid has not been quashed rather the
Hon'ble
Court
has
directed
the
Investigating Officer to conclude the
investigation in it's correct perspective and
complete the same expeditiously subject to
co-operation
in
investigation
by
the
petitioner, Santosh Batham, his arrest is
stayed by the Court.

36. As such mentioning of the Case
Crime No. 97/2018, under Sections 419,
420, 447 of Indian Penal Code, 1860 and
Section 3 of Damage To Public Property
Act, Police Station Ganga Ghat, District
Unnao in the gang chart, is not baseless,
that case is still waiting for decision after a
complete course of trial in accordance with
the procedure envisaged in the Cr.P.C.,
therefore, this can also not be a ground of
malafide on the basis whereof any material
injury is apprehended to the petitioner and,
therefore, this ground shall also not be
treated sufficient
to quash the first
information report.

37. So far as the allegations as of
malafide is concerned, is also baseless, in
every criminal case, prosecution stands on
it's own legs with supporting facts and
evidences. The petitioner has annexed,
annexure no.4, the order of the Co-ordinate
Bench of this Court passed on 27.02.2018
in a Writ Petition No.5694 (M/B) of 2018,
wherein
the
quashing
of
the
first
7 All. Santosh Batham Vs. State of U.P. & Ors.
627
information report in Case Crime No.
97/2018, under Sections 419, 420, 447 of
Indian Penal Code, 1860 and Section 3 of
Damage To Public Property Act, Police
Station Ganga Ghat, District Unnao was
sought, challenging the said F.I.R.

38. The issue of mala fide decided by
the Hon'ble Apex Court in State of
Haryana Vs. Ch. Bhajan Lal (supra) held
as under:-

"At this stage, when there are
only allegations and recriminations on no
evidence, this Court could not anticipate
the result of the investigation and rendered
a finding on the question of mala fides on
the
materials
at
present
available.
Therefore, we are unable to see any force in
the contentions that the complaint should
be thrown over board on the some
unsubstantiated
plea of
mala
fides."
(Emphasis added).

39. In Sheo Nandan Paswan Vs.
state of Bihar & Ors.7, the Hon'ble Apex
Court while dealing with the issue of mala
fides in criminal law observed as under:-

"It is well established proposition
of law that a criminal prosecution, if
otherwise, justifiable and based upon
adequate evidence does not become vitiated
on account of mala fides or political
vendetta of the first informant or the
complainant." (Emphasis added).

40. Similarly, in State of Bihar &
Anr. Vs. J.A.C. Saldanha & Anr.8, Hon'ble
the Apex Court has held as under:-

"It must, however, be pointed out
that if an information is lodged at the
police station and an offence is
registered, the mala fide of the informant
would be of secondary importance if the
investigation
produced
unimpeachable
evidence disclosing he offence." (Emphasis
added).

41. In Inder Mohan Goswami and
another Vs. State of Uttaranchal and
other9, it is held:-

27. The powers possessed by the
High Court under Section 482 of the Code
are very wide and the very plenitude of the
power requires great caution in its exercise.
The Court must be careful to see that its
decision in exercise of this power is based
on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. The
High Court
should
normally refrain from giving a prima facie
decision in a case where all the facts are
incomplete and hazy, more so, when the
evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
such magnitude that they cannot be seen in
their true perspective without sufficient
material. Of course, no hard-and-fast rule
can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceedings at any stage.

42. In view of the facts when tested in
the four corners of the guidelines as laid
down by Hon'ble the Supreme Court
referred hereinabove, the present petition
under Article 226 does not emanate us to
exercise the extra ordinary power under
Article 226 of the Constitution of India to
quash
the
instant
impugned
first
information report.
628 INDIAN LAW REPORTS ALLAHABAD SERIES

43.

In
case
of
Neeharika
Infrastructure Pvt. Ltd. vs. State of
Maharastra and Ors. (Supra), Hon'ble
the Supreme Court of India in concluding
part of it's judgment has laid down
guidelines for the Court's while exercising
power under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India.

44. Some of the relevant conclusion
relating to the case in our hands are being
quoted hereunder:-

"i) Police has the statutory right
and duty under the relevant provisions of
the Code of Criminal Procedure contained
in Chapter XIV of the Code to investigate
into a cognizable offence;

ii) Courts would not thwart any
investigation into the cognizable offences;

iii) It is only in cases where no
cognizable offence or offence of any kind is
disclosed in the first information report that
the Court will not permit an investigation
to go on;

iv) The power of quashing should
be exercised sparingly with circumspection,
as it has been observed, in the ''rarest of
rare cases (not to be confused with the
formation in the context of death penalty).

v)
While
examining
an
FIR/complaint, quashing of which is
sought, the court cannot embark upon an
enquiry as to the reliability or genuineness
or otherwise of the allegations made in the
FIR/complaint;

vi) Criminal proceedings ought
not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR
should be an exception rather than an
ordinary rule;

viii) Ordinarily, the courts are
barred from usurping the jurisdiction of the
police, since the two organs of the State
operate in two specific spheres of activities
and one ought not to tread over the other
sphere;

ix) The functions of the judiciary
and the police are complementary, not
overlapping;

x) .......

xi) .......

xii) The first information report is
not an encyclopaedia which must disclose
all facts and details relating to the offence
reported. Therefore, when the investigation
by the police is in progress, the court
should not go into the merits of the
allegations in the FIR. Police must be
permitted to complete the investigation. It
would be premature to pronounce the
conclusion based on hazy facts that the
complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may
file an appropriate report/summary before
the learned Magistrate which may be
considered by the learned Magistrate in
accordance with the known procedure;

xiii) ......

xiv) ......

xv) When a prayer for quashing
the FIR is made by the alleged accused and
the court when it exercises the power under
Section 482 Cr.P.C., only has to consider
whether the allegations in the FIR disclose
commission of a cognizable offence or not.
The court is not required to consider on
merits whether or not the merits of the
allegations make out a cognizable offence
and
the
court
has
to
permit
the
investigating agency/police to investigate
the allegations in the FIR;

xvi) .........

xvii) .......

xviii)......."
7 All. Ghanshyam Verma & Ors. Vs. State of U.P. & Ors.
629

45. Relying on the judgment of
Hon'ble the Apex Court State of West
Bengal & Ors. Vs. Swapan Kumar Guha &
Ors.10, and some other cases, the power of
quashing the criminal proceedings has to be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases and the Court cannot be justified
in embarking upon an enquiry as to the
reliability or genuineness or otherwise of
allegations made in the F.I.R. or complaint
and the extraordinary and inherent powers
of Court do not confer an arbitrary
jurisdiction on the Court to act according to
its whims or caprice. However, the Court,
under its inherent powers, can neither
intervene at an uncalled for stage nor it can
''soft-pedal the course of justice' at a crucial
stage of investigation/ proceedings.

46. The case of prosecution is that
being in an organized gang as member of
the gang, the petitioner is found indulged in
offences of serious nature to make
economical, material and unlawful gain,
there is no rebuttal of this report made by
the petitioner in his affidavit by pleading,
what he does for his livelihood and/or to
feed 'belly of his family'.

47. So far as the personal liberty of
the accused is concerned, it is not valid in
violation or in breach of fundamental right
of the other people living under the threat
and fear of his gang. Hon'ble the Supreme
Court further in the case of Sudha Singh
Vs. The State of Uttar Pradesh & Anr.11
held as follows:-

"12. There is no doubt that liberty
is important, even that of a person charged
with crime but it is important for the courts
to recognise the potential threat to the life
and liberty of victims/witnesses, if such
accused is released on bail."

48. After having examined the
submissions advanced by learned counsel
for the parties and perused the impugned
F.I.R., we are of the opinion that the
impugned
F.I.R.
discloses
cognizable
offence against the petitioner, hence no
ground exists for quashing of the F.I.R. or
staying the arrest of the petitioner.
49. The writ petition is, accordingly,
dismissed.

50. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

51.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)07ILR A629
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Misc. Single No. 13312 of 2021

Ghanshyam Verma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents