Sanjayan Kumar Mishra v. State of U.P. and others reported in
Case Details
Neutral Citation No. - 2024:AHC:126326-DB Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 9071 of 2024 Petitioner :- Shah Alam @ Dhoni Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Javed Khan,Shafaque,Subuhi Naseem Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Arun Kumar Singh Deshwal,J.
Legal Reasoning
9. From the above analysis, it is clear that the gang chart of the impugned F.I.R. itself is prepared in violation to the Rules, 2021 as well as the direction issued by this Court in Sanni Mishra case (supra). Therefore, the gang chart as well as the impugned F.I.R. are liable to be quashed.
Arguments
1. Heard Sri Javed Khan, learned counsel for the petitioner and Sri Pradeep Kumar Jaiswal, learned A.G.A. for the State. 2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 05.04.2024 registered as Case Crime No.96 of 2024, under Sections 3(1) U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station- Pataherwa, District- Kushi Nagar and for a direction to the State- respondents not to arrest the petitioner in pursuance of impugned First Information Report. 3. The contention of learned counsel for the petitioner is that while preparing the gang chart of the FIR in question, no satisfaction was recorded by the competent authorities as required by Rule 16 of the U.P. Gangster and Anti Social Activities (Prevention) Rules, 2021 (hereinafter referred to as 'Rules, 2021'), which is against the law laid down by the Division Bench of this Court in Sanni Mishra @ Sanjayan Kumar Mishra vs. State of U.P. and others reported in 2024 (1) ADJ 231 (DB). 4. Learned AGA though opposed this petition but could not dispute the aforesaid fact. 5. On perusal of the gang chart, it appears that the Nodal Officer, Senior Superintendent of Police, Kushinagar and District Magistrate, Kushinagar have not recorded the satisfaction as per the Rule 16 of the Rules, 2021 but simply signed pre-typed satisfaction which is in violation of the Rules 17 of the Rules, 2021 as well as against the law laid down in the case of Sanni Mishra (supra) and also against the government circular dated 21.1.2024 issued by the Chief Secretary, Government of U.P. 6. After hearing learned counsel for the parties and on perusal of the record, it is clear that the gang chart, prepared before lodging the impugned F.I.R., was recommended by the competent authorities without recording proper satisfaction and approving authorities without looking into this anomaly approving the same. This Court in the case of Sanni Mishra (supra) has observed that non-recording of proper satisfaction in gang chart would amount to violation of Rule 17(2) of the Rules, 2021. Paragraphs Nos. 16, 17, 18 and 19 of Sanni Mishra (supra) case is quoted as under:- "16. Rule 17 of the Gangster Rules, 2021 further provides that competent authorities, before forwarding the gang-chart must apply an independent mind to the information mentioned in the gang-chart as well as evidence annexed therewith. Rule 17(2) of the Gangster Rules, 2021 further provides that pre-printed rubber seal gang-chart should not be signed by the competent authorities because the same shall amount to not exercising independent mind. Rule 17 of the Gangster Rules, 2021 is being quoted as under: "17. Use of independent mind.-(1) The competent authority shall be bound to exercise its own independent mind while forwarding the gang-chart. (2) A pre-printed rubber seal gang-chart 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." 17. The purpose of prohibiting the signing of pre-printed rubber seal under Rule 17(2) of the Gangster Rules, 2021 is to bind the competent authorities to apply independent mind by mentioning their satisfaction in clear words. Therefore, signing the pre-typed satisfaction will also be prohibited under Rule 17(2) of the Gangster Rules, 2021. 18. In the present case, all the competent authorities simply signed just below the printed proforma regarding their satisfaction. Therefore, it clearly violates Rule 17 of the Gangster Rules, 2021. 19. This court is also of the view that while forwarding and approving the gang-chart, it is the duty of the competent authorities to see whether gang-chart has been prepared as per the Gangster Rules, 2021 and all the formalities as required by the Gangster Rules, 2021 have been fulfilled. If from the record, it appears that competent authorities forwarded or approved the gang-chart without looking into the facts that the gang-chart was itself not prepared as per the Gangster Rules, 2021, then this fact will itself amount to non-application of independent mind on the part of competent authority." 7. Pursuant to the judgement of this court in Sanni Mishra (supra), the Director General of Police has issued a circular dated 19.01.2024 for compliance of the direction issued by this Court. Subsequently, the Government has also issued circular dated 21.01.2024 for compliance of the direction issued by this Court. 8. This Court finds that despite circulation of the direction issued in the case of Sanni Mishra (supra) through Circular dated 21.01.2024 of Chief Secretary, Government of U.P., the District Magistrate as well as District Police Chief are not following the directions and have been preparing the gang charts under the Gangsters Act contrary to Gangster Rules, 2021, therefore, this court had taken serious note thereof in Criminal Misc. Writ Petition No.9930 of 2024 (Abdul Lateef @ Mustak Khan Vs. State of U.P. And 2 Others) vide order dated 26.07.2024 and directed the State Government to send all the District Magistrate and District Police Chief for the training to apprise them how to prepare the gang chart as well as the circumstances under which the Gangster Act can be imposed to prevent the misuse of invocation of the provision of the Gangster Act. Paragraph nos.30 and 31 of the Abdul Lateef's case (supra) is being quoted as under: "30. This Court again found in the present cases that the gang charts of the impugned FIRs have been prepared in utter violation of the Rules, 2021 as well as directions issued by this Court in Sanni Mishra (supra), Asim @ Hassim (supra), Rajeev Kumar @ Raju (supra), Anil Mishra (supra) and also in violation of circular dated 19.1.2024 issued by the Director General of Police as well as circular dated 21.1.2024 issued by the Chief Secretary, Govt. U.P. 31. Therefore, this Court feels it appropriate to direct the State Government to send the District Police Chiefs, District Magistrates/Police Commissioners as well as Nodal Officers, who are the competent authorities under the Gangsters Act, for training or crash course so that they could learn how to prepare a gang chart, strictly in accordance with the Rules, 2021 as well as several directions issued by this Court and also to apprise them about appropriate cases where the Gangsters Act can be invoked. This training on the one hand will reduce the scope of getting away of the gangsters from the clutches of the Gangsters Act and on the other it will save innocent persons who are merely involved in petty, one or two cases, though they would not come within the definition of the gangsters as per Section 2(b) of the Gangsters Act, from getting booked under the Gangsters Act. Such training or crash course can be conducted in a phased manner in the Judicial Training and Research Institute, Lucknow (J.T.R.I.) which can be arranged by the Principal Secretary Law/LR, Govt. of U.P. or at any other place where the State govt. may feel it appropriate."
Decision
10. Considering the present facts and circumstances, the petition is being finally disposed of by quashing the impugned F.I.R. as well as gang chart. 11. Accordingly, the writ petition is allowed. The impugned F.I.R. dated 05.04.2024 as well as the gang chart are hereby quashed so far as the petitioner is concerned. 12. However, the authority concerned is at liberty to initiate fresh proceedings under The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 after preparing the gang chart of the impugned F.I.R. as per the Rules, 2021 as well as in view of the directions issued by the Division Bench of this Court in Sanni Mishra case (supra). Order Date :- 6.8.2024 A.Kr.