Smt Pooja v. State of U.P. and

1. Heard Mr. Shanti Dhar Dwivedi, learned counsel for the petitioner, Mr. G.P. Singh, learned A.G.A.-I for the State-respondents and perused the material brought on the record.

2. By means of the instant petition, the petitioner has prayed for following principal reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the F.I.R. dated 30.09.2024, in Case Crime No.655 of 2024, under Sections 2/3 U.P. Gangster Act and Anti Social Activities (Prevention) Act, 1986, Police Station- Hapur Nagar, District- Hapur."

3. As per prosecution story narrated in the impugned First Information Report, the petitioner along with other co-accused is involved in anti-social activities and is operating a gang acting with an object to cheat and defraud the ordinary people. The impugned First Information Report is challenged precisely on the ground that the same is misuse of process of law as on the similar set of facts, the respondent- Authority had initiated the gangster proceedings against the petitioner herein and one Smt. Pooja and registered a First Information Report dated 29.02.2024 giving rise to Case Crime No.144 of 2024, under Section 2/3 of U.P. Gangster Act, Police Station- Hapur Nagar, District- Hapur. Learned counsel for the petitioner submits that against the aforesaid gangster proceedings, the co-accused namely, Smt. Pooja had knocked the door of this Court by filing a writ petition i.e. Criminal Misc. Writ Petition No. - 4870 of 2024 (Smt Pooja Vs. State of U.P. and 3 Others), wherein, the Division Bench of this Court while entertaining the same on 08.04.2024 has proceeded to quash the impugned First Information Report in question and allowed the petition precisely taking note to the fact that while recommending and approving the gang-chart, the competent authority had utterly failed to apply independent mind and the same was forwarded and approved in a summary manner without convening joint meeting and the gangster proceedings initiated therein against the petitioner was in contravention of the Rule 5(3)(a) of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as the "Gangster Rules, 2021"). For ready reference, the aforesaid order dated 8.4.2024 is reproduced hereinunder:- "1. Heard learned counsel for the petitioner and learned A.G.A for the State.

2. The writ petition seeks quashing of the F.I.R. dated 29.2.2024 giving rise to the Case Crime No. 144 of 2024, under Section- 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short "Gangsters Act"), Police Station- Hapur Nagar, District- Hapur.

3. Counsel for petitioner has submitted that petitioner has been implicated in this case on the basis of single base case and there is violation of Rule 5(3) (a) of Gangsters Act.

4. A division Bench of this court in Criminal Misc. Writ Petition No. 335 of 2024 has held as follows :- "4. This much is contended that the petitioner has been falsely implicated in the present case and no offence under Section 3 (1) of Gangster Act is made out against her. She has good reputation in the society. The petitioner is not a member or leader or organiser of a group which indulges in the kind of activities set out under the various sub-clauses of clause (b) of Section 2, by use of violence or threat or show of violence or intimidation etc. Ref : Ashok Kumar Dixit vs. State of U.P. 1987 (34) ACC 164. It is further averred that the use of word "activities"in a criminal proceeding cannot indicate that a single act of anti-social activity can turn a person into a gangster. There have to be at-least two acts and the commission of those act by the accused has to be established beyond reasonable doubt according rules of evidence as applicable to criminal trial. Ref: State of U.P. vs. Phool Mia 1998 (1) JIC 792 (All). Learned counsel for the petitioner submits that while recommending and approving the gang-chart, the competent authority has utterly failed to apply independent mind because from perusal of the gang-chart, it is apparent that it was forwarded and approved in a summary manner without convening joint meeting, which is in utter violation of Rule 5(3)(a) of the Gangster Rules, 2021. Rule 5 (3) (a) of the Gangster Rules, 2021 provides, "the gang-chart will not be approved summarily but after due discussion in a joint meeting of the Commissioner of Police/District Magistrate/Senior Superintendent of Police/Superintendent of Police." It is also apprised that till date the police report under Section 173(2) Cr.P.C. has not been submitted against the petitioner."

5. Per contra, learned A.G.A. has vehemently opposed the writ petition and submitted that from bare perusal of the FIR cognizable offence is made out against the petitioner and the authorities had rightly invoked the provisions of Gangsters Act, but could not dispute the aforesaid facts on record.

6. No useful purpose would be served by keeping this writ petition pending by calling of counter affidavit from state-respondents since no disputed facts are required to be adjudicated by this court.

7. The impugned FIR is quashed.

8. The writ petition is allowed.

9. It shall be open for the authorities concerned to initiate fresh proceedings against the petitioner, if required, in accordance with law, without repeating the mistake in dispute."

4. Learned counsel for the petitioner in support of his submissions has placed reliance upon the judgment and order dated 11.12.2024 passed by this Court in Criminal Misc. Writ Petition No.21984 of 2024 (Vinay Vs. State of U.P. and 3 Others), preferred by the petitioner herein against the earlier gangster proceedings initiated against him, wherein, this Court has proceeded to consign to record the petition on the premise of the statement made by learned A.G.A. to the effect that investigation had already been completed in the gangster proceedings and no complicity of the petitioner therein was found under the Gangster Act and the investigation had also been closed as well as taking note to the fact that a Division Bench of this Court had already set aside the gangster proceedings against the co- accused namely, Smt. Pooja passed in Smt. Pooja (Supra). For ready reference the order dated 11.12.2024 is reproduced hereinunder:- "1. Shri Paritosh Kumar Maliviya, learned AGA-I has placed detailed instruction and submits that the investigation has already been completed in Case Crime No. 144 of 2024 and no complicity of the petitioner was found in the Gangster Act and accordingly the investigation has been closed.

2. Considering the factual situation as placed by the learned AGA, we do not find that the cause of filing the instant writ petition remain survive, moreover the coordinate Bench of this Court has already set aside the gangster proceeding vide order dated 08.04.2024 in the matter of co-accused Smt Pooja passed in Criminal Misc. Writ Petition No. 4870 of 2024.

3. As the reprieve has already been accorded, accordingly, the instant writ petition is consigned to record."

5. Learned counsel for the petitioner in this backdrop has placed reliance upon the instant gangster proceedings and alleged approval of the gang-chart and submits that after quashing the earlier First Information Report dated 29.02.2024, much surprisingly, the respondent-Authority in most arbitrary and mechanical manner has again proceeded to initiate the gangster proceedings against the petitioner herein without giving any satisfactory reason/explanation and forwarded and approved the same. Learned counsel for the petitioner submits that while approving the gang- chart against the petitioner, the respondent-Authority has not taken cognizance about the similar set of facts and also failed to take into account the mandate given by the Division Bench of this Court in Smt. Pooja (Supra), wherein, Division Bench of this Court vide its order dated 8.4.2024 has proceeded to quash the gangster proceedings initiated against the co-accused Smt. Pooja as well as the judgment passed by this Court vide its order dated 11.12.2024 in Vinay (Supra).

6. We have occasioned to peruse the record and we find that while recommending and approving the gang-chart, the competent authority has utterly failed to apply independent mind, it is apparent that prima facie gang-chart was forwarded and approved in summary manner, on different dates at provided proforma, without convening joint meeting, which is also in utter violation of Rule 5(3)(a) of the Rules 2021. We are also failed to understand that once the Division Bench of this Court vide its order dated 8.4.2024 passed in Smt. Pooja (supra) had already quashed the gangster proceedings initiated against the co-accused Smt. Pooja and as well as this Court also while entertaining the petition preferred by the petitioner in Vinay (supra) vide its judgment and order dated 11.12.2024 had also consigned to record the petition precisely taking note to the fact that grievance of the petitioner had already been ventilated then under what circumstances the respondent-Authority has again drawn gangster proceedings against the petitioner on the similar set of facts.

7. Before proceeding further in the matter and keeping in view the fact that the respondent-authority has candidly given a go-by the mandate of the Division Bench of this Court passed in Smt. Pooja as well also the mandate given by this Court in Vinay (supra), let the District Magistrate, District- Hapur and Superintendent of Police, District- Hapur may file a personal affidavit in the instant matter mentioning therein that as to under what additional/compelling circumstances, the gangster proceedings has been invoked against the petitioner on the similar set of facts and further as to whether at the time of initiating instant proceedings the authorities have considered the observations made by the Division Bench and this Court or not.

8. Put up this matter for further orders on 11.03.2025, as fresh.

9. Considering the facts and circumstances of the case as briefly discussed above, as an interim measure, till the next date of listing, the respondents are restrained to arrest the petitioner pursuant to the impugned FIR. Order Date :- 28.2.2025 Sachin (Prashant Kumar,J.) (Mahesh Chandra Tripathi,J.)

1. Heard Mr. Shanti Dhar Dwivedi, learned counsel for the petitioner, Mr. G.P. Singh, learned A.G.A.-I for the State-respondents and perused the material brought on the record.

2. By means of the instant petition, the petitioner has prayed for following principal reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the F.I.R. dated 30.09.2024, in Case Crime No.655 of 2024, under Sections 2/3 U.P. Gangster Act and Anti Social Activities (Prevention) Act, 1986, Police Station- Hapur Nagar, District- Hapur."

3. As per prosecution story narrated in the impugned First Information Report, the petitioner along with other co-accused is involved in anti-social activities and is operating a gang acting with an object to cheat and defraud the ordinary people. The impugned First Information Report is challenged precisely on the ground that the same is misuse of process of law as on the similar set of facts, the respondent- Authority had initiated the gangster proceedings against the petitioner herein and one Smt. Pooja and registered a First Information Report dated 29.02.2024 giving rise to Case Crime No.144 of 2024, under Section 2/3 of U.P. Gangster Act, Police Station- Hapur Nagar, District- Hapur. Learned counsel for the petitioner submits that against the aforesaid gangster proceedings, the co-accused namely, Smt. Pooja had knocked the door of this Court by filing a writ petition i.e. Criminal Misc. Writ Petition No. - 4870 of 2024 (Smt Pooja Vs. State of U.P. and 3 Others), wherein, the Division Bench of this Court while entertaining the same on 08.04.2024 has proceeded to quash the impugned First Information Report in question and allowed the petition precisely taking note to the fact that while recommending and approving the gang-chart, the competent authority had utterly failed to apply independent mind and the same was forwarded and approved in a summary manner without convening joint meeting and the gangster proceedings initiated therein against the petitioner was in contravention of the Rule 5(3)(a) of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 (hereinafter referred to as the "Gangster Rules, 2021"). For ready reference, the aforesaid order dated 8.4.2024 is reproduced hereinunder:- "1. Heard learned counsel for the petitioner and learned A.G.A for the State.

2. The writ petition seeks quashing of the F.I.R. dated 29.2.2024 giving rise to the Case Crime No. 144 of 2024, under Section- 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short "Gangsters Act"), Police Station- Hapur Nagar, District- Hapur.

3. Counsel for petitioner has submitted that petitioner has been implicated in this case on the basis of single base case and there is violation of Rule 5(3) (a) of Gangsters Act.

4. A division Bench of this court in Criminal Misc. Writ Petition No. 335 of 2024 has held as follows :- "4. This much is contended that the petitioner has been falsely implicated in the present case and no offence under Section 3 (1) of Gangster Act is made out against her. She has good reputation in the society. The petitioner is not a member or leader or organiser of a group which indulges in the kind of activities set out under the various sub-clauses of clause (b) of Section 2, by use of violence or threat or show of violence or intimidation etc. Ref : Ashok Kumar Dixit vs. State of U.P. 1987 (34) ACC 164. It is further averred that the use of word "activities"in a criminal proceeding cannot indicate that a single act of anti-social activity can turn a person into a gangster. There have to be at-least two acts and the commission of those act by the accused has to be established beyond reasonable doubt according rules of evidence as applicable to criminal trial. Ref: State of U.P. vs. Phool Mia 1998 (1) JIC 792 (All). Learned counsel for the petitioner submits that while recommending and approving the gang-chart, the competent authority has utterly failed to apply independent mind because from perusal of the gang-chart, it is apparent that it was forwarded and approved in a summary manner without convening joint meeting, which is in utter violation of Rule 5(3)(a) of the Gangster Rules, 2021. Rule 5 (3) (a) of the Gangster Rules, 2021 provides, "the gang-chart will not be approved summarily but after due discussion in a joint meeting of the Commissioner of Police/District Magistrate/Senior Superintendent of Police/Superintendent of Police." It is also apprised that till date the police report under Section 173(2) Cr.P.C. has not been submitted against the petitioner."

5. Per contra, learned A.G.A. has vehemently opposed the writ petition and submitted that from bare perusal of the FIR cognizable offence is made out against the petitioner and the authorities had rightly invoked the provisions of Gangsters Act, but could not dispute the aforesaid facts on record.

6. No useful purpose would be served by keeping this writ petition pending by calling of counter affidavit from state-respondents since no disputed facts are required to be adjudicated by this court.

7. The impugned FIR is quashed.

8. The writ petition is allowed.

9. It shall be open for the authorities concerned to initiate fresh proceedings against the petitioner, if required, in accordance with law, without repeating the mistake in dispute."

4. Learned counsel for the petitioner in support of his submissions has placed reliance upon the judgment and order dated 11.12.2024 passed by this Court in Criminal Misc. Writ Petition No.21984 of 2024 (Vinay Vs. State of U.P. and 3 Others), preferred by the petitioner herein against the earlier gangster proceedings initiated against him, wherein, this Court has proceeded to consign to record the petition on the premise of the statement made by learned A.G.A. to the effect that investigation had already been completed in the gangster proceedings and no complicity of the petitioner therein was found under the Gangster Act and the investigation had also been closed as well as taking note to the fact that a Division Bench of this Court had already set aside the gangster proceedings against the co- accused namely, Smt. Pooja passed in Smt. Pooja (Supra). For ready reference the order dated 11.12.2024 is reproduced hereinunder:- "1. Shri Paritosh Kumar Maliviya, learned AGA-I has placed detailed instruction and submits that the investigation has already been completed in Case Crime No. 144 of 2024 and no complicity of the petitioner was found in the Gangster Act and accordingly the investigation has been closed.

2. Considering the factual situation as placed by the learned AGA, we do not find that the cause of filing the instant writ petition remain survive, moreover the coordinate Bench of this Court has already set aside the gangster proceeding vide order dated 08.04.2024 in the matter of co-accused Smt Pooja passed in Criminal Misc. Writ Petition No. 4870 of 2024.

3. As the reprieve has already been accorded, accordingly, the instant writ petition is consigned to record."

5. Learned counsel for the petitioner in this backdrop has placed reliance upon the instant gangster proceedings and alleged approval of the gang-chart and submits that after quashing the earlier First Information Report dated 29.02.2024, much surprisingly, the respondent-Authority in most arbitrary and mechanical manner has again proceeded to initiate the gangster proceedings against the petitioner herein without giving any satisfactory reason/explanation and forwarded and approved the same. Learned counsel for the petitioner submits that while approving the gang- chart against the petitioner, the respondent-Authority has not taken cognizance about the similar set of facts and also failed to take into account the mandate given by the Division Bench of this Court in Smt. Pooja (Supra), wherein, Division Bench of this Court vide its order dated 8.4.2024 has proceeded to quash the gangster proceedings initiated against the co-accused Smt. Pooja as well as the judgment passed by this Court vide its order dated 11.12.2024 in Vinay (Supra).

6. We have occasioned to peruse the record and we find that while recommending and approving the gang-chart, the competent authority has utterly failed to apply independent mind, it is apparent that prima facie gang-chart was forwarded and approved in summary manner, on different dates at provided proforma, without convening joint meeting, which is also in utter violation of Rule 5(3)(a) of the Rules 2021. We are also failed to understand that once the Division Bench of this Court vide its order dated 8.4.2024 passed in Smt. Pooja (supra) had already quashed the gangster proceedings initiated against the co-accused Smt. Pooja and as well as this Court also while entertaining the petition preferred by the petitioner in Vinay (supra) vide its judgment and order dated 11.12.2024 had also consigned to record the petition precisely taking note to the fact that grievance of the petitioner had already been ventilated then under what circumstances the respondent-Authority has again drawn gangster proceedings against the petitioner on the similar set of facts.

7. Before proceeding further in the matter and keeping in view the fact that the respondent-authority has candidly given a go-by the mandate of the Division Bench of this Court passed in Smt. Pooja as well also the mandate given by this Court in Vinay (supra), let the District Magistrate, District- Hapur and Superintendent of Police, District- Hapur may file a personal affidavit in the instant matter mentioning therein that as to under what additional/compelling circumstances, the gangster proceedings has been invoked against the petitioner on the similar set of facts and further as to whether at the time of initiating instant proceedings the authorities have considered the observations made by the Division Bench and this Court or not.

8. Put up this matter for further orders on 11.03.2025, as fresh.

9. Considering the facts and circumstances of the case as briefly discussed above, as an interim measure, till the next date of listing, the respondents are restrained to arrest the petitioner pursuant to the impugned FIR. Order Date :- 28.2.2025 Sachin (Prashant Kumar,J.) (Mahesh Chandra Tripathi,J.)