It is most significant to note that Allahabad High Court has in a most learned, laudable, landmark, logical and latest judgment titled Abdul Lateef @ Mustak Khan vs State of UP and 2 Others in Criminal Misc. Writ Petition No.: 9930 of 2024 with 10379 of 2024 with 10852 of 2024 with 10916 of 2024 and with 10968 of 2024 and cited in Neutral Citation No. – 2024:AHC:119716-DB that was reserved on 15.7.2024 and then finally pronounced on 26.7.2024 has directed the Uttar Pradesh State Government to send its police officials, district magistrates and nodal officers under the UP Gangsters and Anti Social Activities (Prevention) Act for training so that they learn to act in accordance with the law. We need to note that the Division Bench of Hon’ble Mr Justice Siddhartha Varma and Hon’ble Mr Justice Arun Kumar Singh Deswal flagged the rampant violation that was mushrooming of the procedure in preparation of the gang chart under the UP Gangsters and Anti Social Activities (Prevention) Rules, 2021. It must be also noted that the notable judgment was passed on a batch of five writ petitions that were challenging the preparation of gang charts against the accused by the authorities. The Division Bench made it absolutely clear that such laws must be tested on the old saying that “99 accused may be acquitted, but one innocent person should not be punished.”
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Arun Kumar Singh Deswal for a Division Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Siddhartha Varma and himself sets the ball in motion by first and foremost putting forth in para 1 that, “As a common question is involved in all the above five writ petitions, all the writ petitions are being disposed of by a common judgement.”
To put things in perspective, the Division Bench envisages in para 2 that, “Basic issue in all the above writ petitions is preparation of gang chart in accordance with the U.P. Gangsters and Anti Social Activities (Prevention) Rules, 2021 (hereinafter referred to as “Rules, 2021”). In all the above writ petitions first information reports, under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as “Gangsters Act”), have been challenged on the ground that while preparing the gang charts of the FIRs in question, the competent authorities have not applied their minds and prepared gang charts in violation of the Rules, 2021 as well as several directions issued by this Court in the cases of Sanni Mishra @ Sanjayan Kumar Mishra vs. State of U.P. and others; 2024 (1) ADJ 231 (DB) as well as other judgements.”
Most significantly and above all, we need to note that the Division Bench mandates in para 32 postulating that, “For ready reference, guidelines, issued by this Court in several judgements regarding preparation of gang chart as well as for invocation of Gangsters Act, are being summarised as under:-
“(i). While forwarding or approving the gang chart, the competent authorities must record their satisfaction as required by Rule 16 of the Rules, 2021 by writing in clear words and not by simply signing printed/pre-typed satisfaction.
(ii). Satisfaction of the competent authorities should reflect that they have applied their minds not only on the gang chart but also the documents/forms annexed with the gang chart.
(iii). Date of filing the charge sheet under the base case must be mentioned in Column-6 of the gang chart except in cases under Rule 22(ii) of the Rules, 2021 where Gangsters Act can be imposed during investigation.
(iv). Before approving the gang chart, the District Magistrate should conduct due discussion for invocation of the Gangsters Act in a joint meeting with the District Police Chief as per Rule 5(3)(a) of the Rules, 2021 and minutes/resolutions of the meeting must be recorded in a register maintained for that purpose. That register should be made available to the court for its perusal if it so requires.
(v). While signing their satisfaction competent authorities (District Police Chiefs, District Magistrates and Nodal Officers) should mention the date just below their signatures.
(vi). While approving the gang chart, the District Magistrate/Commissioner of Police should also verify whether the Nodal Officer and District Police Chief have properly recorded their satisfaction as per the Rules, 2021 as well as the guidelines issued by the State Government in pursuance of the directions issued in several judgements by the High Court.
(vii). Before invocation of the Gangsters Act, competent authorities should also record satisfaction that offence of base case/cases has/have been committed by a person who comes within the definition of “Gangster” as per Section 2(c) of the Gangsters Act and there must be material for such satisfaction. This satisfaction must be mentioned in the minutes of the joint meeting conducted as per Rule 5(3)(a) of the Rules, 2021.”
Most fundamentally, the Division Bench propounds in para 8 that, “Before proceeding on the factual aspect as well as legal question, involved herein, it would be appropriate to discuss the basic object of the Gangsters Act. The Gangsters Act was enacted to deal with those criminals who commit crime by forming a gang or who assist or abet illegal activities of a gang which are mentioned in Section 2(b) of the Gangsters Act. The Gangsters Act can be invoked only against the persons who are termed as gangsters as per Section 2(c) of the Gangsters Act. Therefore, the Gangsters Act can be imposed only on those persons who are members of any gang and commit offence mentioned in Section 2(b)(i) to 2(b)(xxv) of the Gangsters Act or who assist such persons in any manner. Definition of the word ‘gang’ has been given in Section 2(b) of the Gangsters Act, providing group of persons either acting singly or collectively with the object of disturbing public order or gaining any undue temporal, pecuniary or material advantage for himself of any other person through violence, or threat, or intimidation, or coercion, or other similar activities by indulging in illegal activities mentioned in Section 2(b) of the Gangsters Act. Section 2(b), defining the word ‘gang’ is quoted as under:-
“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”.”
It would be instructive to note that the Division Bench notes in para 9 that, “From the perusal of the definition of the word ‘gang’, it appears that if two or more persons group together for committing illegal activities, as mentioned in Section 2(b) of the Gangsters Act itself, then that group will be considered as a gang. But in the Gangsters Act, it was nowhere mentioned whether the activity of the member of a group should be one or more than one to attract the liability under the Gangsters Act as mentioned in the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015. As per the Maharashtra Control of Organized Crime Act as well as the Gujarat Control of Terrorism and Organized Crime Act, to attract the liability there must be a continuing unlawful activity which requires more than one charge sheet. However, in the U.P. Gangsters Act, it is nowhere mentioned that to attract the liability under the Gangsters Act there must be continuing unlawful activity which requires more than one charge sheet for the offences. For ready reference, Sections 2(1)(d), 2(1)(e) of the Maharashtra Control of Organized Crime Act as well as Sections 2(1)(c) and 2(1)(e) of the Gujarat Control of Terrorism and Organized Crime Act are quoted as under:-
“Maharashtra Control of Organized Crime Act
2(1)(d). “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.
2(1)(e). “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
Gujarat Control of Terrorism and Organized Crime Act
2(1)(c). “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term of three years or more,’– undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.
2(1)(e). “organised crime” means continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, prostitution or ransom by an individual, singly or jointly, either as syndicate, by use of violence or at of violence or intimidation or coercion or other means.””
While citing a recent and relevant case law, the Division Bench hastens to add in para 10 stating that, “This issue was also considered by the Apex Court in the case of Shraddha Gupta v. State of Uttar Pradesh and Others; 2022 SCC OnLine SC 514. While considering the issue whether the provision of the Gangsters Act can be invoked if the member of a gang is involved in a single case, Hon’ble the Apex Court observed that on perusal of the definition of ‘gang’ and ‘gangster’ in the U.P. Gangsters Act, continuation of illegal activities is not required as required in the Maharashtra Control of Organized Crime Act as well as the Gujarat Control of Terrorism and Organized Crime Act. Therefore, even if the member of a gang is involved in a single base case, the provisions of the Gangsters Act can be imposed against him. Paragraph No. 39 of Shraddha Gupta (supra) case is quoted as under:-
“39. On a fair reading of the definitions of ‘Gang’ contained in Section 2(b) and ‘Gangster’ contained in Section 2(c) of the Gangsters Act, a ‘Gangster’ means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ‘Gang’ and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, 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 and he/she can be termed as ‘Gangster’ within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act. Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is 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.””
It is worth noting that the Division Bench notes in para 11 that, “The Apex Court in the case of Shraddha Gupta (supra) observed that on the basis of a single case, the Gangsters Act can be imposed against a person. This observation was widely misused by the police authorities for invoking the Gangsters Act only on the basis of a single case, ignoring the fact that the observation of the Apex Court in Shraddha Gupta (supra) is regarding commission of a single case by the member of a gang or by any person who assists or abets the gang in its illegal activities. Therefore, though the Gangsters Act can be imposed only on the basis of a single case against a criminal, the basic condition must be fulfilled that the criminal must be a member of a gang and involved in illegal activities as mentioned in Section 2(b) of the Gangsters Act, only then the Gangsters Act can be imposed only on the basis of a single case. However, this Court came across a number of cases where the Gangsters Act has been imposed only on the basis of a single case against an accused without there being sufficient material to show that the person is a member of a gang and involved in illegal activities, mentioned in Section 2(b) of the Gangsters Act. This is nothing but misuse of the Gangsters Act by some of the State Officers.”
Do note, the Division Bench notes in para 12 that, “The State Government, just to prevent the misuse of the Gangsters Act, has framed the Rules, 2021. While framing these rules, the State Government also took into consideration several guidelines issued by the High Court as well as the Apex Court regarding invocation of the Gangsters Act. The basic purpose of issuance of the Rules, 2021 is that no innocent person be falsely implicated in the Gangsters Act by providing check and balance on the police as well as administrative officers who are competent authorities to recommend and approve the gang chart before registration of the F.I.R. under the Gangsters Act.”
It would be worthwhile to mention that the Division Bench notes in para 13 that, “The majority of criminal Acts and Rules, enacted and framed by the State, are substantially based on societal norms which can be traced back to the religious teachings, found in the religious texts.”
To be sure, the Division Bench observes in para 14 that, “This Court is of the view that the object of procedural Rules, framed under the Gangsters Act as well as in other criminal laws, must be tested on the old saying that “99 accused may be acquitted, but one innocent person should not be punished”.”
Notably, the Division Bench states in para 15 that, “Rigveda, the ancient Indian Vedic texts contains several hymns and verses that prohibit harassment and oppression of innocent people. Several verses of Rigveda emphasize the importance of protecting the innocent and the weak and warn against oppressing or harassing them. The Rigveda teaches that Gods are on the side of the oppressed and will punish those who engage in harassment and oppression. The Mandal-1, Sukta-5th, Varg-10th (1.5.10) of the Rigveda (interpretation by Swami Dayanand Saraswati) is being quoted as under:-
“(mā no martā abhi druhan tanūnām indra girvanah< | īśāno yavayā vadham) Indra, who are the object of praises, let no men do injury to our persons; you are mighty, keep off violence."" Further, the Division Bench states in para 16 that, "The Bible, both old and new testaments, condemns harassment and oppression of an innocent person. The Bible teaches that protecting the innocent and promoting justice is a fundamental aspect of faith and harassment and oppression are considered sinful behaviour. The relevant extract of the Bible is quoted as under:- "Exodus 23:7 Have nothing to do with a false charge and do not put an innocent or honest person to death, for I will not acquit the guilty."" Furthermore, the Division Bench observes in para 17 that, "Quran, the holy book of Islam, strictly condemns harassment and oppression of innocent people. The Quran teaches that protecting the innocent and promoting justice is a fundamental aspect of Islam and oppression and harassment are considered grave sins. The Surah Al-Ma'edah (Surah-5), Ayat 32 of the Quran is quoted as under:- Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land – it is as if he had slain mankind entirely. And whoever saves one – it is as if he had saved mankind entirely. And our messengers had certainly come to them with clear proofs. Then indeed many of them, [even] after that, throughout the land, were transgressors."" Most remarkably, the Division Bench points out in para 18 that, "The above verses of different religious texts clearly show that harassment of innocent persons is a great sin and our legal system also prescribes several procedures to protect the innocent persons and punish the guilty. Before the enforcement of the Constitution of India, Dr. B.R. Ambedkar Ji, while addressing the final constituent assembly, said "However good the constitution may be, if those who are implementing it are not good it will prove to be bad". Therefore, providing law and procedure for its implementation may not result as desired if the persons who are implementing the same have mala fide intention or do not respect the law and its procedure." It cannot be lost sight of that the Division Bench points out in para 36 directing that, "On perusal of the gang chart of the impugned F.I.R. in the Criminal Misc. Writ Petition No. 10916 of 2024, it is clear that the Nodal Officer while signing his satisfaction did not mention any date below his signature which is against the decision of Rajeev Kumar @ Raju (supra). The gang chart in the present case also shows that while recording his satisfaction, the Superintendent of Police, Bijnor did not mention that he had perused forms/enclosures annexed with the gang chart and he simply relied upon the facts mentioned in the gang chart and recommended the gang chart to the District Magistrate but the District Magistrate, Bijnor also did not look into this aspect and approved the gang chart. Therefore, the impugned F.I.R. dated 2.6.2024, registered as Case Crime No. 274 of 2024, under Sections 2(b)(i) and 3(1) of the Gangsters Act, P.S. Chandpur, District Bijnor along with its gang chart is hereby quashed." It also cannot be glossed over that the Division Bench further directs in para 37 that, "On perusal of the gang chart of the impugned F.I.R. in the Criminal Misc. Writ Petition No. 10968 of 2024, it is clear that the satisfaction was not recorded by the competent authorities in the gang chart but they simply signed pre-typed satisfaction which is against the Rules, 2021 as well as the directions issued by this Court in Sanni Mishra (supra). Therefore, the impugned F.I.R. dated 14.5.2024, registered as Case Crime No. 108 of 2024, under Sections 2/3 of the Gangsters Act, P.S. Alau, District Mainpuri along with its gang chart is hereby quashed." More to the point, the Division Bench also directs in para 38 that, "It is relevant to mention here that in view of the judgement of the Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others; 2011 (14) SCC 770, all the consequential proceedings of the impugned FIRs in all the above five writ petitions are also quashed." Still more, the Division Bench directs in para 39 that, "With the aforesaid observation, all the above five writ petitions are allowed." For sake of clarity, the Division Bench clarifies in para 40 that, "However the competent authorities are at liberty to proceed against the petitioners afresh in accordance with the Rules, 2021 as well as the guidelines issued by this Court." In addition, the Division Bench specifies in para 41 holding that, "Registrar (Compliance) is directed to send a copy of this judgement to the Chief Secretary, Govt. of U.P. and the Principal Secretary (Home), Govt. of U.P. for compliance within 24 hours." Finally, the Division Bench then concludes by directing in para 42 that, "Registrar (Compliance) will also send a copy of this judgement to the Principal Secretary Law/L.R., U.P. for placing the same before the Chief Minister, Uttar Pradesh for his perusal." On the whole, we thus see that the Allahabad High Court has in the fitness of things very rightly, rationally and robustly directed the State authorities and police to undergo training on UP Gangsters Act procedures. It was without doubt the crying need of the hour also! No denying or disputing it! Sanjeev Sirohi, Advocate, s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.
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