Alok Kumar Upadhyay v. State of U.P. and another) and application under Section
Case Details
Court No. - 73 Case :- APPLICATION U/S 482 No. - 5234 of 2023 Applicant :- Rajvir Singh @ Rajvir Gurjar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijit Saxena Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J. Heard learned counsel for the applicant as well as the learned AGA. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the impugned charge sheet dated 23.06.2020 in case crime no. 0307 of 2019, under Sections 2 and 3 of the U. P. Gangster and Anti Social Activities (Prevention) Act, 1986, P. S. Kotwali, district Mathura and the summoning order dated 21.11.2020 (annexure no. 9) as well as entire proceedings arising out of aforesaid crime pending in the Court of Special Judge (Gangster Act), Mathura. Further prayer has been made to stay the proceedings of the aforesaid case.
Facts
As per the case set up by the applicant s herein, the applicants were posted as Assistant Teacher at Mathura. An FIR no. 0837 of 2018 purported to be under Sections 420, 467, 468 and 471 IPC read with Section 8 and 9 of the Prevention of Corruption Act was lodged against as many as 23 persons including the applicants. Applicant no.1 has been shown as gang leader whereas name of applicant no.2 found place at serial no. 17. The applicants were arrested and they were released on bail in Criminal Misc. Bail Application No. 20139 of 2019 and Criminal Misc. Bail Application No. 12813 of 2020 vide orders dated 14.05.2019 and 22.05.2020, respectively.
Legal Reasoning
"4. I have heard learned Counsel for the parties, perused the affidavit, counter affidavit and the gang chart. There is no dispute about this fact that in all the three cases Deen Dayal is complainant. The applicant was also not named in the case under Section 302 I.P.C and other two cases are of trivial nature. The other member of alleged gang is none except the brother of the applicant. Though the F.I.R. of the Gangster Act has been so written that some ingredient of Gangster Act may come in but if the applicant was really of a gang member or has formed any gang, he would have committed much more offence which were disturbing the public order or would have been of serious nature. 5. As mentioned earlier, the complainant of the three cases is one and the same person. No other person of any village or any police station ever lodged any complaint against the applicant. Moreover in the case under Section 302 I.P.C he is not named in the F.I.R. The other two cases are of very trivial nature. Thus, the prosecution is against provision of the U.P. Gangster and Anti Social Activities (Prevention) Act and no offence under the Gangster Act is made out. The charge sheet is liable to be quashed. 6. Consequently, the application is allowed. The proceedings of Special Trial No. 549 of 2003 is hereby quashed. The prosecution of the applicant under the said Gangster Act is set aside. If the applicant is on bail, he need not surrender and his surety stands discharged." Learned AGA has also not disputed the factum of granting the interim protection to Alok Kumar Upadhyay and Ravendra Singh in the Application under Section 482 bearing no. 1951 of 2021 on 22.1.2021 and Application under Section 482 bearing no.23367 of 2021 on 22.11.2021. Matter requires consideration. Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. Issue notice to opposite party no.2, returnable at an early date. Steps be taken within ten days. All the opposite parties may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. Connect along with records of Application U/S 482 No. 1951 of 2021 (Alok Kumar Upadhyay Vs. State of U.P.) and Application U/S 482 No.23367 of 2021 (Ravendra Singh Vs. State of U.P. and another) and list on the date fixed in the leading matter. Following the orders dated 22.1.2021 and 22.11.2021 passed in the case of Alok Kumar Upadhyay and Ravendra Singh, who are also charge sheeted, this Court is granting interim protection to the applicants also as per the terms set out in the orders dated 22.1.2021 and 22.11.2021 passed in Application Nos. 1951 of 2021 and 23367 of 2021, till the next date of listing. Order Date :-23.3.2023 Abhishek Singh Digitally signed by :- ABHISHEK SINGH High Court of Judicature at Allahabad
Arguments
Learned counsel for the appellants submits that a first information report had been lodged against them dated 11.4.2019 under the provisions contained under Section 2/3 of Uttar Pradesh Gangster and Anti Social Activities (Prevention) Act, 1986 being FIR no. 0307. Thereafter the applicants were arrested and they preferred bail applications before this Court and this Court has released them on bail vide orders dated 14.05.2019 and 22.05.2020 passed in Criminal Misc. Bail Application No. 20139 of 2019 and Criminal Misc. Bail Application No. 12813 of 2020 vide orders dated 14.05.2019 and 22.05.2020, respectively. On 23.6.2020, a charge sheet has been submitted charge sheeting the applicants under Section 2/3 of Uttar Pradesh Gangster and Anti Social Activities (Prevention) Act, 1986 and on 21.11.2020, summoning orders have been passed. Learned counsel for the applicants has also referred to the interim protection so accorded to co-accused persons namely Alok Kumar Upadhyay on 22.1.2021and Ravendra Singh on 22.11.2021 in application under Section 482 bearing no. 1951 of 2021 (Alok Kumar Upadhyay Vs. State of U.P. and another) and application under Section 482 bearing no.23367 of 2021 (Ravendra Singh Vs. State of U.P. and another). The applicants are seeking the same relief which has been extended to the co-accused persons namely, Alok Kumar Upadhyay and Ravendra Singh. Learned counsel for the applicants has argued that though an FIR under Gangsters and Anti Social Activities (Prevention) Act has been sought to be lodged but the ingredients so contained therein do not constitute any offence under the provisions of Gangsters Act as in case the applicants was a gang member or has formed any gang they would have committed much more offence which was disturbing the public order. In order to buttress the said arguments, learned counsel for the applicants has relied upon the judgment of a Coordinate Bench in Criminal Misc. Application No. 3737 of 2004 dated 17.4.2021 (Mahendra Patel Vs. State of U.P.) wherein this Court observed relevant paragraphs as under:-