Varnit Kumar vs State of U.P. and Others

Amar Saran and R.N. Misra, JJ.

This petition has been filed for quashing an F.I.R. dated 31.1.2009 under Sections 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, (hereinafter referred to as the Act), Police Station Sadar Bazar, District Saharanpur in Case Crime No. 99 of 2009.

The allegations in the F.I.R. were basically that the Petitioner belonged to a gang of motorcycle thieves and some F.I. Rs. were lodged against him.

It was argued by the learned Counsel for the Petitioner that three F.I. Rs. were lodged on the same day and that the Petitioner could not be considered a member of the gang on that basis. Specifically our attention was drawn to the definition of gang u/s 2(b) of the Act, which reads as follows:

2 (b)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, namely:

It was argued that the indispensable requirement for considering a person to be a member of the gang would be that he should have either singly or collectively have used violence or threat or show of violence or intimidation or coercion, and thus the use of force was essential for constituting a gang and a member of the said gang could only then be shown to be a gangster. However, we find that apart from the aforesaid requirements as to use or show of violence, the definition of gang also has a supplementary clause of "or otherwise", for the objective of disturbing public order or of gaining undue temporal, pecuniary, material or other advantage, when the accused engages in anti-social activities, as delineated u/s 2(b)(i)(xiv).

It was, then argued by Petitioner''s counsel that the expression "or otherwise" should be read ejusdem generis with the other terms which require the use of force or violence mentioned in the earlier part of the definition of a "gang" u/s 2(b).

We are not in agreement with this submission. The offences and other anti-social activities which are described in Section 2(b)(i)(xv) include offences under Chapter XVII of the Indian Penal Code, which include the offence of theft u/s 378. Now, theft involves dishonestly taking any movable property out of the possession of any other without his consent. Theft is usually a stealthy act, which is committed without the knowledge of the victim of the theft. Again Chapter XVII of the Indian Penal Code also includes offences u/s 403 and the related sections, dealing with criminal misappropriation of property. Under these offences the movable property of another person is dishonestly misappropriated or converted to by the accused for his own use. Likewise u/s 405 and allied sections dealing with the crime of criminal breach of trust, dishonest misappropriation of property entrusted to any person for his own use are covered. The provisions do not require the existence of force, violence. Similarly Section 410, I.P.C. and related sections concern with stolen property, Section 420, I.P.C. and related sections deal with offences of cheating, which only involve deception, fraudulent or dishonest inducement to a person to part with his property or to consent to something which he would not have otherwise done, were he not so deceived. No element of force or violence is involved under these provisions also. Other anti-social activities which could be committed by a gang u/s 2(b)(ii) are distilling or manufacturing or storing or transporting or importing or exhorting or selling or distributing any liquor or intoxicating or dangerous drugs etc., in contravention of the provisions of U. P. Excise Act, 1910 or Narcotic Drugs and Psychotropic Substances Act. These crimes may be accompanied by violence in some conditions, but use of violence is not a pre-condition for constituting these crimes. Again although occupying or taking possession of the immovable property of another in violation of law is usually a crime of violence, but not necessarily so, when someone seeks in obtaining the title or possession to the property of another by forgery or fraud. Again offences u/s 3 of the U. P. Public Gambling Act may again not necessarily involve the use of force. Inducing a person to go to a foreign country on a false representation with the promise that he would be provided with employment, trade or a profession in the foreign country u/s 2(b)(xiii) of the Gangsters Act again does not involve the use of violence or show of violence, but it may be the result of a fraud and deception practised on the victim. Therefore, the contention of the learned Counsel for the Petitioner that expression word "otherwise" must be read ejusdem generis with the other instances of violence mentioned in the earlier part of the Sub-section is not correct and the Gangsters Act seeks to prevent and punish activities which may result in undue temporal, pecuniary, material or other advantage to the gangster or any other person and which may or may not necessarily involve the use of violence.

Another criticism of the contention raised by the Petitioner is that in the decision of Kishan Pal alias K.P. v. State of U. P. and Anr. 2006 (LIV) ACC 1015: 2006 (2) ACR 1254, relying on the Full Bench decision in Ashok Kumar Dixit v. State of U. P. and Anr. (XXII) 1987 ACC 164: 1987 ACR 236 (FB), it has been observed that it is not possible to quash the investigations in the proceedings under the Gangsters Act pending before the Special Judges in writ petitions and the writ courts cannot scrutinize individual cases of investigation for granting relief in direct conflict with the Full Bench decision in Ashok Kumar Dixit. Relying on the decision of Shamsul Islam v. State of U. P. (XXXVIII) 1999 ACC 315: 1999 (1) ACR 398, it is further pointed out that if the original relief of quashing of the first information report cannot be granted in the writ petition, the additional relief of stay of arrest of the accused can also not be granted.

For these reasons, we find no good ground to interfere with the investigation or to quash the F.I.R. in this writ petition. The petition is accordingly dismissed.

However, it is directed that in case, the Petitioner surrenders before the Special Judge concerned within three weeks, his prayer for bail may be considered and disposed of expeditiously in accordance with the provisions of the Gangsters Act.