# Virendra Kasaudhan v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Criminal Misc. Writ Petition No. 2683 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kasaudhan-v-state-of-u-p-ors-50079
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 279, 504 & 307 - Quashing of
F.I.R - U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986 - Section
3(i)
-
U.P.Gangster
and
Anti-Social
Activities (Prevention) Rules, 2021 - Rule
5(2), 5(3) - On the basis of single case as
mentioned in gang chart, the provisions of
Gangster Act has been imposed against
petitioner, violation of above Rule framed
under Gangster Act - District Magistrate
has not recorded subjective satisfaction
before
imposition
of
provisions
of
Gangster
Act
-
St.
contended
that
chargesheet has already been submitted
in base FIR - Held, satisfaction has been
recorded as per Gangster Rules, 2021 and
Form-I of Gangster Act, which provides
the format of gang chart - Petition was
devoid of merit, dismissed. (Para 5, 6, 9)

Writ Petitions dismissed. (E-13)

List of Cases cited:

## Text

5 All. Virendra Kasaudhan Vs. State of U.P. & Ors.
1071

18. It is well settled law that before
passing the order of externment the District
Magistrate should be satisfied that the
person against whom the externment order
has been passed, is habitual to commit
crimes and there are several materials
before him to the effect that there was
terror in the public and no one has come
forward to give evidence against that
person.

19. From perusal of impugned order
passed by District Magistrate it is apparent
that only on the basis of two criminal cases,
the externment order for six months has
been passed by the District Magistrate. The
Commissioner has also failed to consider
the grounds taken by the petitioner in his
appeal and in a routine manner has
dismissed the appeal preferred by the
petitioner.

20. On an overall conspectus of the
aforesaid, this Court finds that since there
was no sufficient material before the
District Magistrate in holding that the
petitioner is Goondas and is habitual to
commit crimes, the impugned orders dated
19.1.2023 passed by the respondent no.2/
Commissioner, Basti Division, Basti and
dated 11.11.2022 passed by the respondent
no. 3/District Magistrate, Sant Kabir Nagar
are bad in law and deserve to be quashed
and the writ petition is liable to be allowed.

21. Accordingly, the writ petition is
allowed.

22. The impugned orders dated
19.1.2023 passed by the respondent no.2/
Commissioner, Basti Division, Basti and
dated 11.11.2022 passed by the respondent
no. 3/District Magistrate, District-Sant
Kabir Nagar are quashed.
----------
(2023) 5 ILRA 1071
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 2683 of 2023

Virendra Kasaudhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bipin Kumar Tripathi, Sri Shubham

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 279, 504 & 307 - Quashing of
F.I.R - U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986 - Section
3(i)
-
U.P.Gangster
and
Anti-Social
Activities (Prevention) Rules, 2021 - Rule
5(2), 5(3) - On the basis of single case as
mentioned in gang chart, the provisions of
Gangster Act has been imposed against
petitioner, violation of above Rule framed
under Gangster Act - District Magistrate
has not recorded subjective satisfaction
before
imposition
of
provisions
of
Gangster
Act
-
St.
contended
that
chargesheet has already been submitted
in base FIR - Held, satisfaction has been
recorded as per Gangster Rules, 2021 and
Form-I of Gangster Act, which provides
the format of gang chart - Petition was
devoid of merit, dismissed. (Para 5, 6, 9)

Writ Petitions dismissed. (E-13)

List of Cases cited:

1. Ram Rahees & anr. Vs St. of U.P. & ors.
reported in 2011 (1) JIC 440

2. Shraddha Gupta Vs The St. Of U.P.reported in
2022 SCC OnLine SC 514, (Para 37)
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Ambuj Parag Dubey & ors. Vs St. of U.P. &
ors. reported in 2022 (4) ACR 3878, (Para 32 to
37 and 41)

(Delivered by Hon'ble Vivek Kumar Birla,
J., & Hon'ble Surendra Singh-I, J.)

1. Counter affidavit filed on behalf of
the State, is taken on record.

2. Heard Sri Bipin Kumar Tripathi,
learned counsel for the petitioner and Sri
Ratan Singh, learned AGA for the State and
perused the records.

3. Present petition has been filed with
a prayer for quashing the F.I.R. dated
17.12.2022, registered as Case Crime No.
660 of 2022, under Section 3(i) U.P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 (hereinafter referred
to as the Gangster Act), Police Station
Chiluatal, District Gorakhpur with a further
prayer not to arrest the petitioner in
pursuance of the impugned F.I.R.

4. Submission of the learned counsel
for the petitioner is that in the gang chart
details of only one case have been
mentioned, however, simultaneously it is
mentioned that two cases are registered
against the petitioner. So far as the case
referred in the gang chart bearing Case
Crime no.7 of 2021 is concerned, it is
submitted by the learned counsel for the
petitioner that initially F.I.R. was lodged
only under Sections 279, 504, 307 IPC
against two unknown bike riders wherein
during investigation in C.D. No.11 dated
24.01.2021 Mukhbir disclosed the name of
the co-accused Manoj Chauhan and Monoj
Sahani, who are notorious criminals having
no concerned with the petitioner and in
correspondence
to
that
Mukhbir
information co-accused Manoj Sahani,
Manoj Chauhan, Sunil Chauhan and Vikas
Pathak were arrested on 31.01.2021 in C.D.
No.12 and they have made confession
before police and disclosed the name of the
petitioner. It is further submitted that except
aforesaid manner of complicity disclosed
by co-accused persons there is no other
material
evidence
collected
by
investigating officer against the petitioner
and as such the investigating officer with
addition of section 120B IPC chargesheeted the accused person. It is next
submitted that similarly in another case
bearing Case Crime no.255 of 2022, under
section 392 IPC, Police Station Cantt,
District Gorakhpur the petitioner was not
named in the FIR and during the course of
investigation those co-accused persons
arrested and disclosed the name of the
petitioner as one of the participants of the
alleged
incident
dated
04.04.2022.
However, the petitioner was granted bail by
the learned Sessions Judge, Gorakhpur vide
order dated 20.09.2022.

5. Arguing the case on merits,
submission of the learned counsel for the
petitioner is that only on the basis of single
case as mentioned in the gang chart the
provisions of Gangster Act has been
imposed against the petitioner and that
there is a clear violation of Rule 5 clause
(2) and (3) of the Rules framed under the
Gangster Act. By placing reliance upon a
Division Bench Judgment of this Court in
the case of Ram Rahees and Another vs.
State of U.P. and Others reported in 2011
(1) JIC 440 it is submitted that the District
Magistrate at no point of time has recorded
subjective satisfaction before imposition of
provisions of Gangster Act. It is further
submitted that on the basis of another first
information report, Gangster Act has been
imposed, copy whereof has been annexed
as Annexure-2 to the supplementary
5 All. Virendra Kasaudhan Vs. State of U.P. & Ors.
1073
affidavit. It is next submitted that the
petitioner is a businessman and has no
concerned with the offence as alleged.
Therefore, the impugned first information
report under the Gangster Act is nothing
but an abuse of process of law and is liable
to be quashed.

6. Per contra, learned AGA submits
that chargesheet has already been submitted
in the base first information report. By
drawing attention to the gang chart it is
submitted by the learned AGA that the
satisfaction has categorically been recorded
by the District Magistrate and endorsement
dated 17.12.2022 to that effect has been
made. It is next submitted that it has
already been decided by Hon'ble Apex
Court in the case of Shraddha Gupta vs
The State Of Uttar Pradesh reported in
2022 SCC OnLine SC 514 that even on
the basis of a single case Gangsters Act can
be imposed.

7. In the case of Ambuj Parag
Dubey and 2 Others vs. State of U.P.
and 2 Others reported in 2022 (4) ACR
3878, this court has considered the entire
scheme of the Gangster Act and held that
in a case, on the materials, the competent
authority is convinced and prima facie
satisfied that a case for prosecution is
made out he may approve the gang chart
bypassing discussion with the police
officials. But in a case where the
competent authority is not convinced or
in two mind, on the material placed by
the police authorities, the competent
authority may necessarily decide to call
for a discussion to prima facie satisfy
himself that prosecution is warranted.
The F.I.R. that follows the approval of the
gang chart cannot be faulted or quashed
merely for want of discussion. Relevant
paragraphs 32, 33, 34, 35,36,37 and 41 of
the said judgment are quoted as under:-

"32. Satisfaction of the competent
authority only means that the competent
authority must be in fact satisfy and not a
dishonest satisfaction, which will be no
satisfaction
at all.
The
satisfaction
contemplated by the Gangster Rule is
satisfaction in point of fact on the
materials placed before the competent
authority.
The
satisfaction
of
the
competent authority referred to under the
Rule is not with respect to the allegations
levelled against the gangster but the
satisfaction
is
confined
to
those
allegations that the accused can be
prosecuted under the Gangster Act.
Whatever may be the nature of charge
against the accused, the satisfaction of
the competent authority should be with
regard to that the materials placed before
him and the nature of the accused
indulging
in
community
antisocial
activities. It is expedient to sanction
prosecution under the Gangster Act.

33. The expression satisfied is much
narrower than ''application of mind'. The
competent authority is not to apply his
mind and satisfy himself as to whether the
material placed before him would be
sufficient for convicting the accused under
the Gangster Act. The satisfaction is
confined within a narrow domain based on
the materials placed before the competent
authority, the authorities forwarding the
gang chart is satisfied that the accused
should be prosecuted under the Gangster
Act. The expression satisfaction is not
satisfaction on evidence but a prima facie
satisfaction based on the representations of
the nodal authority and the district police
that the accused should be prosecuted
under the Gangster Act.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

34. Rule 17 mandates that the
competent authority is bound to exercise its
own independent mind while forwarding
the gang chart and should not be on a preprinted rubber seal gang chart. Rule 17
reads thus:

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

(2) A pre-printed rubber seal gangchart 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.

35. Rule 18 provides that gang chart
shall be sent only in the manner as given in
Form No. 1 of these rules.

36. Rule 17 and 18 would have to be
read together. Gang chart has to be sent in
the
prescribed
Form
No.
1.
The
endorsement to be made by each of the
authorities have also been specified in Rule
16. The rule itself prescribes and mandates
a printed Form. Rule 17 merely mandates
that
the
competent
authority
while
approving the gang chart should not be
swayed by the recommendation of the
police authorities mechanically but should
satisfy himself independently that the
grounds for prosecution is made out. The
satisfaction at that stage is subjective and
does not rest upon any evidence. The
competent authority has to satisfy that the
materials placed with the gang chart calls
for prosecution. The stage of collecting
evidence follows thereafter. The scope of
judicial review is miniscule, the accused
cannot
challenge
the
FIR
without
challenging the gang chart. The question as
to whether the antisocial activities of the
proposed accused is that of a gang or
gangster is a matter of investigation.

37. Rule 22 clarifies and specifies that
a single act/omission will also constitute an
offence under the Act and a first
information report must be registered on
the basis of a single case. Rule 22(1) reads
thus:
41. The submission of the learned counsel
for the petitioners that there was no
''discussion' by the competent authority
with the police officers before approving
the gang chart would not be fatal to the
prosecution
of
the
petitioners.
The
expression ''discussion' has to be followed
mandatorily by the competent authority in
every case does not follow from reading of
the Rule, though the rule employs the word
''shall'. The Gangster Rule no where
mandates the consequence of not following
''discussion' by the competent authority. In
our opinion the rule mandating discussion
is directory. It is left to the discretion of the
competent authority, having regard to the
material placed before him for approval of
the gang chart. In a case, on the materials,
the competent authority is convinced and
prima facie satisfied that a case for
prosecution is made out he may approve
the gang chart bypassing discussion with
the police officials. But in a case where the
competent authority is not convinced or in
two mind, on the material placed by the
police authorities, the competent authority
may necessarily decide to call for a
discussion to prima facie satisfy himself
that prosecution is warranted. The FIR that
follows the approval of the gang chart
cannot be faulted or quashed merely for
want of discussion."

8. It may also be noted that Uttar
Pradesh
Gangster
and
Anti-Social
Activities
(Prevention)
Rules,
2021
(hereinafter referred to as the Gangster
Rules, 2021), were framed in 2021, which
were not available at the time of decision in
Ram Rahees (supra). Needless to say that
Gangster Rules, 2021 have been considered
5 All. Piyush Prabhakar & Anr. Vs. State of U.P. & Ors.
1075
in great detail in Ambuj Parag Dubey
(supra)
and
the
manner
in
which
satisfaction is to be recorded has been laid
down. Hence Ram Rahess (supra) is
clearly distinguishable and is of no help to
the petitioner.

9. Therefore, in view of the judgment
of Ambuj Parag Dubey (supra) we find
that in the present case satisfaction has
been recorded as per the Gangster Rules,
2021 and Form-I of the Gangster Act,
which provides the format of the gang
chart. Rule 5(3)(d) of the Gangster Act also
provides that those cases shall not be
mentioned in the gang chart, on the basis
whereof action has already been taken once
under this Act. We, therefore, find that
satisfaction
recorded
by
the
District
Magistrate in the manner in which it has
been done in the present case is in
compliance of the Rules and it cannot be
said that satisfaction is not recorded.

10. In para 37 of Shraddha Gupta
(supra) it has been held by the Hon'ble
Apex Court that even on the basis of a
single case Gangster Act can be imposed,
which is quoted as under:-

"37. Now so far as the main
submission on behalf of the accused that
for a single offence/FIR/charge sheet with
respect to any of the anti- social activities,
such an accused cannot be prosecuted
under
the
Gangsters
Act,
1986
is
concerned, on a fair reading of the
definitions of ''Gang' and ''Gangster' under
the Gangsters Act, 1986, it can be seen that
a ''Gang' is a group of one or more persons
who commit/s the crimes mentioned in the
definition clause for the motive of earning
undue
advantage,
whether
pecuniary,
material or otherwise. Even a single crime
committed by a ''Gang' is sufficient to
implant Gangsters Act on such members of
the ''Gang'. The definition clause does not
engulf plurality of offence before the
Gangsters Act is invoked."

11. In view of the discussions made
herein above, we do not find force in the
argument of the learned counsel for the
petitioner.

12. The petition is devoid of merit and
is accordingly, dismissed.
----------
(2023) 5 ILRA 1075
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 9842 of 2020
with other connected cases

Piyush Prabhakar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ravi Prakash Srivastava, Sri Anurag Khanna
(Sr. Advocate)

Counsel for the Respondents:
G.A., Sri Gaurav Kakkar

Criminal Law - Indian Penal Code, 1860 -
Section 409 - Code of Criminal Procedure,
1973 - Sections154 & 482 - Constitution of
India, 1950 - Article 226 - Second FIR -
Maintainability - Petitioners are bank
officials while complainant is customer of
same bank - The impugned FIR was
subsequently lodged by informant on the
same allegations and arising from same
incident, but the only fact that was further
alleged is that saving bank account of
informant was released by Chief Judicial
Magistrate, but the bank withheld the