State v. Santosh and
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 33411 of 2025 Vimal Yadav Alias Bhartendu Vimal Yadav And 2 Others State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) : Ram Krishna Mishra, Suresh Chand Counsel for Opposite Party(s) : G.A. Yadav Court No. - 77
Legal Reasoning
12. 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 proceedings 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, 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 5 NA528 No. 33411 of 2025 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. 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 pre-printed 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 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. 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... 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 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 ''discussion' has to be mandating discussion is directory. It is left to the discretion of the 6 NA528 No. 33411 of 2025 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." 13. Needless to say that Gangster Rules, 2021 have been considered in great detail in Ambuj Parag Dubey (supra) and the manner in which satisfaction is to be recorded has been laid down. 14. Therefore, in view of the judgment of Ambuj Parag Dubey (supra), the Court finds 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. The Court, therefore, finds that satisfaction recorded by the concerned authority 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 which also shows due diligence and independent application of mind by both the recommending and approving Authorities and as such, it cannot be said that there is violation of Rule 5 of Rules, 2021. In the base case which has been shown against applicant, is related to "cheating" and as, it can also not be said that he had not disturbed the public order. 15. In view of the aforesaid facts and circumstances, the present application being devoid of merit, is, accordingly, dismissed. September 11, 2025 Shaswat (Saurabh Srivastava,J.) Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad
Arguments
HON'BLE SAURABH SRIVASTAVA, J. 1. Heard learned counsel for applicants and learned AGA for State. 2. Present application has been preferred with prayer to quash the charge- sheet dated 27.06.2022, cognizance/summoning order dated 12.12.2022 and entire proceeding of Special Session Trial no. 68 of 2022 (State vs. Santosh and 5 others) arising out of Case Crime no. 64 of 2021, under Section 3(1) of U.P.Gangster and Anti-Social Activities (Prevention) Act, 1986, PS- Pawai, District Azamgarh. 3. Learned counsel for applicant submitted that applicants has falsely been implicated in the present case. It has also been argued by learned counsel for applicant that there is no independent witness of alleged incident as well as the mandatory provisions of the U.P. Gangster and Anti Social Activities (Prevention) Rules, 2021 (for short ''Rules 2021") have not been followed in its true spirit. 4. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and rebutted the stands taken up by learned counsel for applicant by way of submitting that the applicant being gang member, is involved in disturbing public order by causing violence and threat for the purposes of obtaining unfair worldly, economic, material, pecuniary and as such, no relief can be granted to him. 5. After having the rival contentions raised by learned counsel for parties as well as perusal of the records, it would be appropriate to quote Section 2 NA528 No. 33411 of 2025 2(b) of the Act 1986 which defines the gang which is hereinbelow:- "'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." 6. The expression ''public order' is of wide connotation and signifies the state of tranquillity prevailing among the members of political society as a result of the internal regulation of the Government. (Romesh Thappar vs. State of Madras, AIR 1950 SC 124). Thus, public order means even tempo of the life of the community taking within its fold even a specified locality and a substantial section of the society. (Nagen Murmu vs. State of West Bengal, AIR 1973 SC 844). In other words, the word public order is virtually synonymous with public peace, safety and tranquillity. The incidents of breach of public order would include the legislation to regulate the use of sound amplifiers in public places, forcing entry into, schools, setting fire to school building, public property, public gambling, manufacture and distribution of spurious and adulterated liquor, drugs, attempting to throw a bomb at the Police etc. are all connected with public order. (Bablu Mitra vs. State of West Bengal, AIR 1973 SC 197). 7. Prima facie, a single incident relating to a single individual based on personal enmity may not disturb public order, and may remain confined to ''law and order' problem but it is not always necessary. The basic question for determination is whether the incident disturbs the public order or law and order, has to be determined on the basis of the cumulative effect on the facts and circumstances of each and every case. It rather depends on the reaction of the public to the happening and the consequential terror spread by the culprits and the atmosphere surcharged thereby. The distinction between public order and law and order was concisely explained by the Supreme Court in Jadunandan Sha vs. District Magistrate, Dhanbad, (1983) 4 SCC 301. 8. Under the Gangster Act no distinction has been made between public order and law and order, it is not the status of criminal but the act which is made punishable under the Gangster Act. The activities of gangsters for offences under the Gangster Act, since they pose grave threat to the even tempo of the society, therefore, called for sterner and more deterrent punishment and speedier hike and early booking. The Gangster Rules thereafter mandates that although a person may not be physically present 3 NA528 No. 33411 of 2025 on the place of occurrence yet he may be roped in under the provisions of the Gangster Act in relation to that occurrence on the facile ground that he is a gangster. Thus, there is no need of any overt and positive act of the person intended to be apprehended at the place. It is enough to prove his active complicity which has a bearing on the crime. Vide: Ashok Kumar Dixit AIR 1987 (All) 235 (All HC, FB). 9. The expression ''or otherwise' as used in the definition of gang can be read conjunctively or disjunctively. If read conjunctively, the words ''or otherwise', in law, when used in a general phrase, following an enumeration of particulars, are commonly interpreted in a restricted sense, as referring to such other matters as are kindred to the classes before mentioned. The word "or" in "or otherwise" is a disjunctive that marks an alternative which generally corresponds to the words "either". An interoperation of the general words "or otherwise" limiting them to the matters and things of the same kind as the previous words (violence, intimidation, coercion) would make the general words "or otherwise" following the preceding specific words, redundant. These words "or otherwise" are not words of limitation, but of extension so as to cover all possible offences. The word "otherwise" is, therefore, not to be read "ejusdem generis" with the other instances of violence mentioned in the earlier part of sub-section. 10. Further, on perusal of the offences which have been included in the definition of Gang includes offences under Chapter-XVII of Indian Penal Code which include the offence of theft under Section 378, offences under Section 403 and the related sections dealing with criminal misappropriation of property, Section 405 and allied sections deals with the crime of criminal breach of trust, dishonest misappropriation of property. Section 410 and related sections concern stolen property, Section 420 and related sections deal with offences of cheating which only involve deception, fraudulent or dishonest inducement to a person or his property. It is evident from the provisions included within the definition of gang do not require existence of force or violence. Similarly, offences under Section 3 of U.P. Public Gambling Act may not necessarily involve the use of force. Thus, the word ''otherwise' has been employed disjunctively in the definition of gang and cannot be read as "ejusdem generis", with other incidents of violence mentioned in the earlier part of this sub-section (Verneet Kumar vs. State of U.P. 2009 (1) ALL CrJ 377). 11. All the anti-social activities mentioned in the definition of gang are 4 NA528 No. 33411 of 2025 not covered as offences but are certainly unlawful activities having serious reflection on the society, though not termed as offences. Thus, the law never required that offences must have been committed in past or involve use of violence for prosecution under the Gangster Act. Further, as per definition of gang, the Gangster Act seeks to prevent and punish activities which may result in undue temporal, pecuniary, material or other advantage to the gangsters or any other person and which may or may not necessarily, involve the use of violence. Verneet Kumar (supra).