Allowed

Mohd. Idris v. State of U.P. and Another

Allahabad HC7 Nov 2019A482/13126/2009

Case brief

AI extract

What is this about?

Court quashed a charge sheet filed under the Gangster Act against the applicant, holding that proceedings were not justified as they were based only on two cases in which the applicant had already been acquitted by this Court. The Court relied on apex court precedents regarding double jeopardy and the binding nature of acquittals.

What did the court decide?

Charge sheet dated 30.12.2008 registered as Special Case No.1687/2008 under Section 2/3 Gangster Act is quashed; Application under Section 482 Cr.P.C. allowed.

Mohd. Idris Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2019)

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Court No. - 69

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Case :- APPLICATION U/S 482 No. - 13126 of 2009

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Applicant :- Mohd. Idris Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shishir Prakash Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Vivek Kumar Singh,J.

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1. Supplementary affidavit dated 25.1.2019 filed by the learned counsel for the applicant today in the Court is taken on record.

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2. Heard Sri Shishir Prakash, learned counsel for the applicant and Sri Abhinav Prasad, learned A.G.A. on behalf of the state.

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3. This 482 Cr.P.C. application has been preferred for quashing the charge sheet dated 30.12.2008 registered as Special Case No.1687/2008 (State Vs. Idris Khan), under Section 2/3 Gangster Act, P.S. Indirapuram, District Ghaziabad, pending in the Court of learned Special Judge (Gangster Act), Ghaziabad.

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4. The facts of the case are that a first information report was lodged against the applicant as case crime No.1687 of 2008 (State Vs. Idris Khan), under Sections 2/3 of the U.P. Gangster & Anti Social Activities (Prevention) Act, 1986, Police Station Indirapuram, District Ghaziabad and only on the basis of two cases i.e. (1) Case Crime No.1254 of 2008, under Section 103 of U.P. Cooperative Societies Act, Police Station Indirapuram, District Ghaziabad (2) Case Crime No.1258 of 2008, under Sections 420, 467, 468, 471, 406, 120-B I.P.C. and Section 103 of U.P. Cooperative Societies Act, Police Station Indirapuram, District Ghaziabad.

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5. During the pendency of the aforesaid trial a first information report was lodged against the applicant under Section 2/3 of the U.P. Gangster Anti-Social Activities (Prevention) Act 1986 (hereinafter referred to as "Gangster Act"). The sole basis of lodging of the first information report against the applicant was the implication in case crime no.1254 of 2008, under Sections 420, 467, 468, 471, 406, 120-B I.P.C. and Section 103 U.P. Cooperative Socities Act, P.S. Indirapuram, District Ghaziabad and case crime No.1258 of 2008, under Section 420, 467, 468 , 471, 406, 120-B I.P.C. and Section 103 of U.P. Cooperative Societies Act, Police Station Indirapuram, District Ghaziabad in which the applicant was acquitted vide orders dated 12.2.2017 and 12.2.2017 passed in Application U/S 482 Cr.P.C. Nos.32098 of 2008 and 31796 of 2008, a copy of said orders is annexed as annexure SA-1 and SA-2 to the supplementary affidavit, which is on record.

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6. Counter affidavit has been filed on behalf of the state stating that the applicant is an accused in the eye of law who has involved himself in anti-social activities. During investigation of the case evidence also came to light that the applicant formed a gang which is involved in misappropriation of money of innocent people and therefore he was implicated in the case under Gangster Act, therefore, he does not deserve any relief from this Court.

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7. Learned counsel submitted that said basis for initiation of F.I.R. under Gangster Act has been disbelieved by this Court as the applicant has been acquitted in the aforesaid crime, which acquittal order has not been challenged as yet. It is further contended that once very basis of initiation of Gangster's Act proceedings diminished, the entire trial procedure and rigmarole of proceedings of criminal trial under that Act will be nothing but only wastage of time of Court. The learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Pritam Singh and another vs. State of Punjab, AIR, 1956 Supreme Court 415 in support of his contention. His contention is that his trial under the Gangster's Act would require trial regarding the same offence which was not found to have been proved by the trial court in the earlier case. He has relied upon the following observations of the Apex Court in the above mentioned case:-

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"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

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The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial".

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8. In support of his contention learned counsel has further placed reliance on the judgment of the Apex Court in the case of N.R. Ghosh vs. the State of West Bengal, AIR 1960 Supreme Court (SC) 239 and has relied upon in paragraph 22 of the same reads as under:-

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"The principle stated in the section is that when a person has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of it, he shall not while the conviction or acquittal remains in force, be tried again for the same offence. In order, therefore, that the appellant may have the benefit of the section he must have been tried by a court of competent jurisdiction. Furthermore, such acquittal must be in force."

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9. Reference to the Apex Court judgment in the case of Manipur Administration,

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Manipur vs. Thokchon Veere Singh, AIR 1965 (SC) 87 has also been made

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wherein paragraph 6 are as follows:-

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Before referring to the decision of this Court in Pritam Singh v. State of Punjab it would be convenient to refer to and put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section is as follows:-

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"403 (1) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under s. 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

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(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

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(1) A.T.R. 1956 S.C. 415.

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(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.

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Explanation-The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." Section 26 of the General Clauses Act which is referred to in s. 403 enacts:

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"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

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We might also, in this connection, refer to Art. 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads:

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"20(2). No person shall be prosecuted and punished for the same offence more than once." As has been pointed out by this Court in State of Bombay v. S. L. Apte , both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides

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that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.

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10. Reliace on Apex Court judgment in the case of Lalta and others vs. State of U.P., AIR 1970 (SC) 1381 has been made, wherein case of Pritam Singh's (supra) and Manipur Administration's case (supra) have been accepted as binding authorities on the issue. Reference to Municipal Corporation of Delhi vs. Shiv Singh 1971 (1) SCC 422 has been made where Section 26 of the general clauses Act 1897 were considered regarding the question of double jeopardy in relation to prosecution of an accused for single offence under two enactments and it was held that Section 26 of the general clauses Act prevents accused from double penalty. This judgment has been relied by the counsel to advance the proposition that the prosecution of the revisionist under the general provisions of Indian Penal Code and then under the provisions of Special Act i.e., Gangster Act on the basis of implication in the case under Section I.P.C., wherein he has been acquitted should not be permitted.

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11. Counsel for the applicant has referred to the judgment, Bhagat Ram vs. State of Rajasthan (1972) 2 SCC 466 , wherein the Apex Court held that even if an order of acquittal is passed by Division Bench of the Court, it is not open for the third Judge of the same Court in a subsequent stage of the same proceedings to convict the person unless the judgment of the Division Bench is set aside by the Supreme Court. In view of the principle embodied in Section 403 I.P.C.

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12. The counsel has relied upon the judgment, Masood Khan vs. State of U.P. (1974) 3 SCC 469 , wherein the issue decided was that for getting the benefit of the principle of issue of estoppel both the proceedings should be criminal proceedings and where one proceeding is civil and the other is criminal, the benefit of this principle will not be extended to the accused. Reference to V.K. Agrawal, Assistant Collector of Customs vs. Vasant Raj Bhagwan Ji Bhatia and others, (1988) 3 SCC 467 has also been made.

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13. Learned counsel for the applicant has argued that in the present case the prosecution of the applicant is being made under the Gangsters Act. After acquittal under the provisions of I.P.C. If two constructions are possible one leading to anamoly, absurdity and unconstitutionality should be avoided.

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14. Learned counsel for the applicant has relied upon the judgment in the case of Kolla Vira Raghav Rao vs. Gorantla Vlalalalalal Rao, (2011) 2 SCC 703 . In this case the Apex Court disapproved the prosecution of the accused under Section 420

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I.P.C. After he was convicted under Section 138 N.I. Act, holding that the subsequent prosecution is barred by article 20(2) and Section 300(1) Cr.P.C. once the facts are the same.

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15. After considering the authorities cited by the counsel for the applicant it is clear that the applicant was implicated in the Gangsters Act only on account of involvement in the (1) Case Crime No.1254 of 2008, under Section 103 of U.P. Cooperative Societies Act, Police Station Indirapuram, District Ghaziabad (2) Case Crime No.1258 of 2008, under Sections 420, 467, 468, 471, 406, 120-B I.P.C. and Section 103 of U.P. Cooperative Societies Act, Police Station Indirapuram, District Ghaziabad, in which the applicant was acquitted by this Court. The proceedings under the Gangsters Act are not independent proceedings. The definition of gang is given in Section 2(b) which is as follows:-

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Section 2:-

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(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 antisocial activities, namely:

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(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or

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(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U. P. Excise Act, 1910 (U. P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or

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(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or

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(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or

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(v) offences punishable under the Suppression of *[Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956)], or

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(vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or

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(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or (viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any

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other lawful activity connected therewith, or

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(ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or (x) inciting others to resort to violence to disturb communal harmony, or (xi) creating panic, alarm or terror in public, or

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(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or

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(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or

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(xiv) kidnapping or abducting any person with intent to extort ransom, or

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(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course.

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16. A perusal of the aforesaid sections shows that the applicant was implicated in an offence under chapter 16, I.P.C. and therefore he was implicated in the case under the Gangsters Act. There is only two cases shown against the applicant in the gang chart in which the applicant was acquitted by the this Court and therefore his implication and trial under Section 2/3 of the Gangsters Act was not justified.

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17. From the law of the Apex Court as discussed above it is crystal clear that the trial of the applicant for an offence under Section 2/3 of the Gangsters Act is not justified. In view of the fact that only two cases are registered against him and he has been acquitted in that case.

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18. In view of the above consideration of the facts of the case and law cited the charge sheet dated 30.12.2008 registered as Special Case No.1687/2008 (State Vs. Idris Khan), under Section 2/3 Gangster Act, P.S. Indirapuram, District Ghaziabad, pending in the Court of learned Special Judge (Gangster Act), Ghaziabad, is hereby quashed.

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19. This application under Section 482 Cr.P.C. is allowed.

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Order Date :- 7.11.2019 Dev/-

Mohd. Idris v. State of U.P. and Another

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Mohd. Idris v. State of U.P. and Another

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