AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Shri Ajay Pratap Singh, learned counsel for the petitioner and Shri Shiv Nath Tilhari learned A.G.A. and perused the record.
Petitioner has prayed for quashing the charge sheet no.24/2010 dated 9.3.2010 in case crime no.516/2009, under section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station Shivgarh, District Raebareli along with non-bailable warrant issued against the petitioner in case crime no. 587/10 by the learned trial court.
Learned counsel for the petitioner contended that on the basis of an FIR at crime no.456/2009, under section 332, 353, 323, 504, 506 IPC at Police Station Shivgarh, District Raebareli, investigating officer has added the sections 147, 148, 149 IPC and 7 Criminal Law Amendment Act and filed the charge sheet against the petitioner wherein the petitioner was released on bail. There is no criminal history of the petitioners except the aforesaid case but the petitioner has again been challaned under section 2/3 Gangster and Anti Social Activities (Prevention) Act, 1986 wherein an interim order against the arrest of the petitioner was granted by division bench of this Court which was operative till filing of the charge sheet.
Learned counsel contended that the petitioner is being victim of double jeopardy as the provisions of Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 are not applicable against him. Learned counsel has placed reliance upon a judgment of single judge passed in application under section 482 Cr.P.C. No.23662/12, Vijendra Singh vs. State of U.P. and Another dated 13.01.2014.
Per contra, learned A.G.A. submits that the provisions of Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 have been held to be valid. It is further contended that it nowhere infringes the constitutional guarantee as provided under Article 20 of the Constitution. In a reported judgment by a full bench of this Court in Civil Misc. Writ Petition No.4562/86, Ashok Kumar Dixit vs. State of Uttar Pradesh dated 5.3.1987, 1987 lawsuit (All) 60 wherein it was held in para 13 that :- "13. Section 2 (b) defines the term "Gang" to mean a group of persons who by violence, or threat, or show of violence or intimidation or coercion etc. indulge in anti-social activities with the object of disturbing public order of gaming any undue temporal of pecuniary material or other advantage for himself. Section 2(b) read as a whole necessarily brings in the concept of violence or intimidation or coercion etc. which is restored to for gaining material advantage. Then we have Clause (c) of Section 2 which defines the word "Gangster". It means 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. Section 3(i) lays down the penalty for being the member or leader or organiser of a group which engages or indulges in the kind of unsocial activities enumerated under Section 2(b) by use of violence etc."
Further in para 45 of the judgment it was held that section 20 of the Act gives overriding effect to the provisions of the Act. In para 71, 72, 73 and 76 it was held that :-
"71. The remarks made in the Gladstone Report provide a complete answer to the argument of the counsel for the petitioners. It is not the status but the act which is made punishable. The activities of gangsters are offence under the Act since they pose grave threat to the even tempo of the society and therefore, call for the sterner and more deterrent punishment and speedier trial and early booking.
Counsel then expressed an apprehension that though a person may not be physically present on the scene of occurrence, yet he may be roped in under the provisions of the Act in relation to that occurrence on the facile ground that he is a gangster. The apprehension does not appear to be very real. But then, it cannot be dismissed as altogether imaginary or absurd. Police is sometimes prone to be overzealous and in order to win laurels books one and all within the range of its rod. Needless to say the act has to be enforced in a reasonable manner. Care should be taken that no unnecessary inroad is made into the exercise of fundamental rights of the citizen or interference in the peaceful prosecution of their avocation.
In this behalf, provisions of the Act themselves provide intrinsic guidelines. If we advert to Section 2(b) of the Act. Which defines the term "gangster'' we would find significant words. They are "acting", or collectively'', "violence or show of violence'', "intimidation'', "coercion'', or unlawful means''. Thus, for booking a person under the provisions of the Act the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.
In Clause (b) of Section 2 the word used is "indulged in anti-social activities''. We may note here that the offences for which Sections 2 and 3 of the Act can be attracted must be those which have been committed aftger the enforcement of the Ordinance or the Act. It is not possible to convict a person for the activities, which could be and were of the nature defined in Section 2, indulged into by him before the Ordinance or the Act. Article 20 recities two limitations upon the law making power of every legislative authority as regards retrospective criminal legislation. It prohibits .........(it the making of ex post facto criminal law. i.e. making an act a crime for the first time and then making that law retrospective, (ii) infliction of penalty greater than which might have been inflicted under the law which was in force when the act was committed. From the language also, we find that Section 2 of the Act is prospective in nature and does not take within it the activities which were indulged into before."
A full bench further held that the Act is not ultravirus. In Shamsul Islam vs. State of U.P. (1999) Vol.1 JIC 804, a division bench has held that :-
"6. Article 20 (2):
No person shall be prosecuted and punished for the same offence more than once."
The import of this constitutional guarantee has been explained by a Constitution Bench in S.A. Venkataraman v. Union of India, AIR 1954 SC 375 , which is as follows :
"The ambit and contents of the guarantee of the fundamental right given in Art. 20(2) are much narrower than those of the Common Law rule in England or the doctrine of "Double Jeopardy" in the Americal Constitution. Art. 20(2) of the Constitution of India does not contain the principle of "Autrefois acquit". In order to enable a citizen to invoke the protection of Cl. (2) of Art.20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted."
Similar view has been taken by another Constitution Bench decision in Maqbook Husain v. State of Bombay, AIR 1953 SC 325, and in a catena of other decisions. Therefore, in order to attract the constitutional guarantee as enshrined in Article 20(2) of the Constitution it is necessary that there should have been both prosecution and punishment in respect of the same offence. The U.P. Gangsters and Anti Social Activities (Preventio n) Act, 1986 creates an altogether new offence and it is different from the offences described in clause (I) of sub-section (b) of Section 2 of the Act. This view has been taken by a Full Bench in Ashok Kumar Dixit v. Sate of U.P., 1987 (24) ACC 164 (FB), wherein the vires of the Act was also upheld. In fact, Sri V.P. Srivastava learned Counsel for the petitioner has fairly conceded that the Act creates a new and distinct offence. If the Act creates a new and distinct offence. The protection of Article 20(2) of the Constitution would not be available at all at any stage and there can be no bar in arresting a person who has committed an offence which is punishable under the Act."
In Kishanpal alias KP vs. State of U.P.2006 lawsuit (Allahabad) 141 division bench of this Court has held that the protection under Article 20(2) of the Constitution of India would only be applicable when "one has been prosecuted and punished for the same offence more than once meaning thereby more that one same offence under the same Act.'' If the Acts are different sources of action should have to be different, hence, even if actions are similar in nature but when arises out of two different acts cannot beheld to be a same defence to attract the question of double jeopardy.
Petitioner has challenged the charge sheet and the non bailable warrant issued against him in a petition under Article 482 Cr.P.C. In a catena of judgments the Hon''ble Apex Court has laid down the guidelines for exercise of powers under section 482 Cr.P.C. wherein it was held that :-
"The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588, Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74 and Manoj Kumar Sharma and Ors. vs. State of Chhattisgarh and Another (2016) 9 SCC 1.
"In Manoj Kumar Sharma and Others (Supra) Hon''ble the Apex Court has relied upon the law laid down in State of Haryana v. Bhajan Lal (Supra) wherein it was held that though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice."
In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, Hon''ble the Apex Court has further laid down, the guidelines for exercise of the power by the High Court under Section 482 Cr.P.C. It has been held that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint."
Coming to the facts of the case a distinct offence under section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 has been committed by the petitioners for which they have been chargesheeted by the investigating officer. So far as the case of Vijendra Singh (supra) is concerned, it does not apply to the facts of the case. A separate trial for another offence is pending which could not said to be a case of double jeopardy, rather, both the offences are distinct in themselves which could be tried by the learned trial court separately.
There is no merit in the petition which deserves to be dismissed and is accordingly dismissed.