# Varnit Kumar v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-26
- **Case number:** Criminal Misc. Writ Petition No. 4990 of 2009
- **Bench:** Amar Saran, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/varnit-kumar-v-state-of-u-p-and-others-41653
- **Pages:** 3

## Headnote

Constitution of India Art. 226-Quashing
F.I.R.-offence under Section 2/3 U.P.
Gangesters & Anti Social Activities Act,
1986-petitioner
involve
in
theft
of
Motorcycle gang-argument that use of
force must be there-while in theft of
Motorcycle-nothing like that-No ground
for quashing FIR made out-hence arrest
can not be stayed on interim mesurepetition dismissed.
2 All] Varnit Kumar V. State of U.P. and others
539
Held: Para 8

For these reasons, we find no good ground
to interfere with the investigation or to
quash the F.I.R. in this writ petition. The
petition is accordingly dismissed.
Case law discussed:
2006 (54) ACC, 1015, 1987 (24) ACC 164,
1999 (38) ACC 315

## Text

538 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the petitioner would not be sent for
evaluation.

25. No notice or opportunity of
hearing was given to the petitioner before
taking the above decisions which vitally
affect the petitioner's academic career.

26. In my opinion, before taking the
above decisions, the Academic Counsel
(Respondent no. 2) was bound to give
notice to the petitioner, and after
affording
reasonable
opportunity
of
hearing to the petitioner, any decision in
the matter should have been taken. The
Academic Council has evidently taken the
above decisions in total disregard of the
principles of natural justice.

27. In the circumstances, the
decision
of
the
Academic
Council
(respondent no. 2) taken in its meeting
held on 9.12.2006 in regard to the
petitioner under Agenda -Item No. 3
under the heading "Other points raised
with the permission of the Chairman"
whereby the petitioner's M.Com. Degree
as well as his registration for Ph.D. have
been cancelled, cannot be sustained, and
the same is liable to be quashed, and the
matter is liable to be remanded to the
Academic Council for deciding the same
afresh after getting reasonable opportunity
of being heard to the petitioner.

28. In view of the above, the Writ
Petition deserves to be allowed, and the
same is, accordingly, allowed. The
decision of the Academic Council taken
in
its
meeting
held
on
9.12.2006
(Annexure No. 6 to the Writ Petition)
regarding Agenda-Item No. 3 under the
heading " Other points raised with the
permission of the Chairman" whereby the
petitioner's M. Com. Degree and his
registration
for
Ph.D.,
have
been
cancelled, is quashed, and the matter is
remanded to the Academic Council
(Respondent no. 2) for deciding the same
afresh in accordance with law after
affording reasonable opportunity of being
heard to the petitioner.

29. It is made clear that this Court
has not considered the case of the
petitioner on merits, as the same is to be
considered by the Academic Council.

30. On the facts and circumstances
of the case, there will be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2009

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Writ Petition No. 4990 of
2009

Varnit Kumar

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Sri Manoj Misra

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

Constitution of India Art. 226-Quashing
F.I.R.-offence under Section 2/3 U.P.
Gangesters & Anti Social Activities Act,
1986-petitioner
involve
in
theft
of
Motorcycle gang-argument that use of
force must be there-while in theft of
Motorcycle-nothing like that-No ground
for quashing FIR made out-hence arrest
can not be stayed on interim mesurepetition dismissed.
2 All] Varnit Kumar V. State of U.P. and others
539
Held: Para 8

For these reasons, we find no good ground
to interfere with the investigation or to
quash the F.I.R. in this writ petition. The
petition is accordingly dismissed.
Case law discussed:
2006 (54) ACC, 1015, 1987 (24) ACC 164,
1999 (38) ACC 315

(Delivered by Hon'ble Amar Saran, J.)

1. This petition has been filed for
quashing an F.I.R. dated 31.01.2009 under
sections 2/3 of the U.P. Gangsters & Anti
Social Activities (Prevention) Act, 1986
(hereinafter referred to as the Act), Police
Station Sadar Bazar, district Saharanpur in
Case Crime No. 99 of 2009.

2. The allegations in the F.I.R. were
basically that the petitioner belonged to a
gang of motorcycle thieves and some
F.I.Rs. were lodged against him.

3. It was argued by the learned
counsel for the petitioner that three F.I.Rs.
were lodged on the same day and that the
petitioner could not be considered a
member of the gang on that basis.
Specifically our attention was drawn to the
definition of gang under section 2 (b) of the
Act, which reads as follows:-

2 (b) "Gang means a group of persons,
who acting either singly or collectively, by
violence, or threat or show of violence, or
intimidation, or coercion, or otherwise with
the object of disturbing public order or of
gaining any undue temporal, pecuniary,
material or other advantage for himself or
any other person, indulge in anti-social
activities, namely:

4. It was argued that the indispensable
requirement for considering a person to be a
member of the gang would be that he
should have either singly or collectively
have used violence, or threat or show of
violence, or intimidation, or coercion, and
thus the use of force was essential for
constituting a gang, and a member of the
said gang could only then be shown to be a
gangster. However, we find that apart from
the aforesaid requirements as to use or show
of violence, the definition of gang also has a
supplementary clause of "or otherwise", for
the objective of disturbing public order or of
gaining undue temporal, pecuniary, material
or other advantage, when the accused
engages
in
anti-social
activities,
as
delineated under sections 2 (b)(i) to (xiv).

5. It was, then argued by petitioner's
counsel that the expression "or otherwise"
should be ejusdem generic with the other
terms which require the use of force or
violence mentioned in the earlier part of the
definition of a "gang" under section 2 (b).

6. We are not in agreement with this
submission. The offences and other antisocial activities which are described in
section 2 (b) (i) to (xv) include offences
under Chapter XVII of the Indian Penal
Code, which include the offence of theft
under section 378. Now theft involves
dishonestly taking any movable property
out of the possession of any other without
his consent. Theft is usually a stealthy act,
which is committed without the knowledge
of the victim of the theft. Again Chapter
XVII of the Indian Penal Code also includes
offences under section 403 and the related
sections,
dealing
with
criminal
misappropriation of property. Under these
offences the moveable property of another
person is dishonestly misappropriated or
converted to by the accused for his own use.
Likewise under section 405 and allied
sections dealing with the crime of criminal
breach of trust, dishonest misappropriation
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of property entrusted to any person for his
own use are covered. The provisions do not
require the existence of force, violence.
Similarly section 410 I.P.C. and related
sections concern stolen property, Section
420 IPC and related sections deal with
offences of cheating, which only involve
deception,
fraudulent
or
dishonest
inducement to a person to part with his
property or to consent to something which
he would not have otherwise done, were he
not so deceived. No element of force or
violence is involved under these provisions
also. Other anti-social activities which could
be committed by a gang under section 2 (b)
(ii) are distilling or manufacturing or storing
or transporting or importing or exporting or
selling of distributing any liquor, or
intoxicating or dangerous drugs etc., in
contravention of the provisions of U.P.
Excise Act, 1910 or Narcotic Drugs and
Psychotropic Substances Act. These crimes
may be accompanied by violence in some
conditions, but use of violence is not a precondition for constituting these crimes.
Again although occupying or taking
possession of the immovable property of
another in violation of law is usually a
crime of violence, but not necessarily so,
when someone seeks in obtaining the title or
possession to the property of another by
forgery or fraud. Again offences under
section 3 of the U.P. Public Gambling Act
may again not necessarily involve the use of
force. Inducing a person to go to a foreign
country on a false representation with the
promise that he would be provided with
employment, trade or a profession in the
foreign country under section 2 (b) (xiii) of
Gangsters Act again does not involve the
use of violence or show of violence, but it
may be the result of a fraud and deception
practiced on the victim. Therefore, the
contention of the learned counsel for the
petitioner that expression word "otherwise"
must be read ejusdem generic with the other
instances of violence mentioned in the
earlier part of the sub-section is not correct
and the Gangsters Act seeks to prevent and
punish activities which may result in undue
temporal, pecuniary, material or other
advantage to the gangster or any other
person and which may or may not
necessarily involve the use of violence.

7. Another criticism of the contention
raised by the petitioner is that in the
decision of Kishan Pal @ K.P. versus State
of U.P. and another, 2006 (54) ACC, 1015
relying on the Full Bench decision in Ashok
Kumar Dixit vs. State of U.P. and another,
1987 (24) ACC 164, it has been observed
that it is not possible to quash the
investigation in the proceeding under the
Gangsters Act pending before the Special
Judges in writ petitions, and the writ Courts
cannot scrutinize individual cases of
investigation for granting relief in direct
conflict with the Full Bench decision in
Ashok Kumar Dixit. Relying on the decision
of Shamsul Islam v. State of U.P., 1999 (38)
ACC 315, it is further pointed out that if the
original relief of quashing of the first
information report cannot be granted in the
writ petition, the additional relief of stay of
arrest of the accused can also not be
granted.

8. For these reasons, we find no good
ground to interfere with the investigation or
to quash the F.I.R. in this writ petition. The
petition is accordingly dismissed.

9. However, it is directed that in case,
the petitioner surrenders before the Special
Judge concerned within three weeks, his
prayer for bail may be considered and
disposed of expeditiously in accordance
with the provisions of the Gangsters Act.
---------