Allowed

Nitin Agrawal and Another v. State of U.P. and Another

Allahabad HC22 Oct 2019A482/13955/2019

Case brief

AI extract

What is this about?

In this Section 482 application, the High Court quashed proceedings initiated under the U.P. Gangsters and Anti-Social Activities Act. The court held that no offence under the Gangster Act was made out, as allegations were based solely on a single gambling case and presumptions without evidence of gang characteristics.

What did the court decide?

Charge sheet, cognizance order, summoning order, and bailable warrant under the U.P. Gangsters Act were quashed as to the applicants.

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

¶1

Court No. - 69

¶2

Case :- APPLICATION U/S 482 No. - 13955 of 2019

¶3

Applicant :- Nitin Agrawal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.

¶4

Hon'ble Vivek Kumar Singh,J.

¶5

Counter and rejoinder affidavits have been exchanged between the parties and same are on record.

¶6

1. Heard Sri Praveen Kumar Srivastava, learned counsel for the applicants and Sri Sanjay Singh, learned AGA-I for the State as well as on behalf of opposite party no.2.

¶7

2. This 482 Cr.P.C. application has been filed for quashing the charge sheet dated 19.7.2018, cognizance taking order as well as the summoning order dated 14.12.2018 and Bailable Warrant dated 28.1.2019 passed by learned Additional District and Sessions Judge Court No.5 Bareilly in Case No.83 of 2018 arising out of Case Crime No.792 of 2017, under Sections 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Kotwali, District Bareilly, pending in the Court of learned Additional District and Sessions Judge, Court No.5, Bareilly.

¶8

3. It is submitted by the learned counsel for the applicants that an FIR has been lodged by the police under Section 2/3 of the U.P. Gangsters and Anti-Social Activities ( Prevention) Act, 1986 [ in short referred to as the 'Act'] alleging therein that the applicants and other accused persons are habitual offenders and spoiling the youth by involving them in gambling. According to them, there was no criminal antecedent of the applicants and registration of the case under the Public Gambling Act was the first case against them. It has been vehemently argued that the police chief and the District Magistrate has granted sanction for registration of FIR under the Gangsters Act without applying their independent mind.

¶9

4. It has further been submitted that the applicants have only went to play cards and neither he is running a Gambling Den nor his inciting the youth to involve themselves. Neither the applicants are occupier nor the owner of the place, where it is alleged that the applicants and other co-accused were involved in gaming. Their case is only covered under the Public Gambling Act but they have been falsely implicated under the Gangsters Act. Moreover, there is no independent public witness to support the police version.

¶10

5. On the other hand, the learned Addl. Government Advocate made a feign attempt to justify the action of the police and lodging of the FIR under the Act. According to him that in the case registered under the Gambling Act, the police after due investigation and collecting evidence has submitted charge-sheet and on the basis of the facts which came into the light, the case under the Gangster Act was registered against them.

¶11

6. Before proceeding with the merits of the case, it would be worth to mention that co-ordinate Bench of this Court while entertaining the 482 Cr.P.C. application has passed order dated 12.4.2019, which reads as under:-

¶12

"By means of this application under sections 482 of the Code of Criminal Procedure, the applicants have invoked the inherent jurisdiction of this Court for quashing of the charge sheet dated 28.11.2018, summoning order dated 14.12.2018 as well as bailable warrant dated 28.1.2019 passed by Additional District and Sessions Judge, court No. 5 Bareilly in Criminal Case No. 83 of 2018 arising out of Case Crime No. 792 of 2017, under Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, police station Kotwali, district Bareilly pending in the court of Additonal District and Sessions Judge, court No. 5, Bareilly.

¶13

Heard learned counsel for the applicants and learned Additional Government Advocate representing the State and perused the materials on record.

¶14

The submission of learned counsel for the applicants is that the impugned FIR dated 11.10.2017 has been lodged against the applicants along with five other accused persons, under Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act on the basis of only one Case Crime No. 329 of 2017 of the Gambling Act, 1867.

¶15

Further submission is that the applicants have been falsely implicated in the aforesaid Case Crime No. 329 of 2017. Neither the applicants were arrested on the spot nor any recovery was made from the possession of the applicants. The names of the applicants in the said case came into light on the statement of the co-accused.

¶16

It is also pointed out that the FIR was challenged by applicant No. 1 before this Court in Criminal Misc. Writ Petition No. 222842 of 2017, in which interim protection of stay of arrest was granted by the Division Bench of this Court to the applicants vide order dated 27.10.2017.

¶17

Next submission is that on the given facts and circumstances of the case, the applicants do not come under the purview of the Gang or Gangsters, as defined under Section 2(b)&(c) of the U.P. Gangsters and Anti Social Activities (Prevention) Act 1986.

¶18

In support of the aforesaid submissions, learned counsel for the applicants has also placed reliance upon the judgment of this Court in the case of Vijay Kumar Pathak Vs. State of U.P, 2010(71) ACC 864 . On the strength of the aforesaid judgment of this Court, it has been contended that the impugned proceedings against the applicant on the basis of solitary case is not sustainable, and as such, the same is liable to be quashed by this Court.

¶19

Per contra, learned A.G.A. vehemently opposed the aforesaid submissions by contending that there is no illegality in initiating the proceedings under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act 1986 against the applicants, as prima facie offence is made out against the applicants, but he does not dispute the fact that FIR dated 11.10.2017 has been registered against the applicants only on the basis of one Case Crime No. 329 of 2017.

¶20

In view of above, the matter requires consideration.

¶21

Learned AGA has accepted notice on behalf of the State-respondent.

¶22

Issue notice to opposite party No. 2 returnable at an early date.

¶23

Steps be taken within a week.

¶24

All the respondents may file their counter affidavits within three weeks. Applicants will have two weeks thereafter to file rejoinder affidavit.

¶25

List case on 20th of May, 2019 before the appropriate Bench.

¶26

Till the next date of listing, no coercive action shall be taken against the applicants in the above mentioned case."

¶27

7. I have perused the provisions of Section 3 and 4 of the Public Gambling Act, 1867 under which the FIR was registered against the petitioner and other co-accused, which are quoted hereunder:-

¶28

"3. Penalty for owning or keeping, or having charge of a gaming house - Whoever being the owner or occupier, or having the use of any house, walled enclosure, room or place, situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming house; and whoever, being the owner or occupier of any such house, walled enclosure, room or place as aforesaid, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming h ouse, and whoever has the care or management of, or in any manner assists in conducting the business of any house, walled enclosure, room or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid, and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, walled enclosure, room or place, shall be liable to a fine not exceeding two hundred rupees, or to imprisonment of either description as defined in the Indian Penal Code (45 of 1860) for any term not exceeding three months.

¶29

4. Penalty for being found in gaming house - Whoever is found in any such house, walled enclosure, room or place, playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaining, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding one hundred rupees, or to imprisonment of either description, as defined in the Indian Penal Code (45 of 1860), for any term not exceeding one month, and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming."

¶30

8. It may be mentioned that the word "gang" means a group of persons, who are acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise the object of disturbing public order or of gaining any undue temporal, pecuniary material or other advantage for himself or any other person indulged in anti-social activities. On the other hand the word " Gangster" means a member or leader or organizer of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities.

¶31

9. In the impugned FIR, it has been alleged that the applicants and other accused are involved in anti-social activities and it is not in the public interest if the accused are allowed to remain free. It is also mentioned in the impugned first information report that there is a gang and the District Magistrate has been requested to accord approval for taking action under the Gangsters Act and the Gang Chart has been approved. A perusal of the gang-chart shows that against the applicant and other accused persons there is only one case under the The Public Gambling Act, 1867 and there is no

¶32

other case against applicant.

¶33

10. From the bare perusal of the impugned FIR and materials on record, we are of the view that no offence is made out against the applicants although there is absolutely no allegation with respect to commission of any kind of offence which comes within the parameters of Gangsters Act but the same has been invoked, which emphatically proves the assertion of the applicant that there is not a single iota of truth in the impugned FIR and perhaps, the same has been concocted with some hidden agenda.

¶34

11. It appears that the FIR has been lodged on presumptions. In other words, unless an allegation is there concerning an act or omission on the part of an accused, covered by the definition of the term "gang" or "gangster", no FIR should be maintainable.

¶35

12. In view of the aforesaid discussion, the writ petition is allowed and the charge sheet dated 19.7.2018, cognizance taking order as well as the summoning order dated 14.12.2018 and Bailable Warrant dated 28.1.2019 passed by learned Additional District and Sessions Judge Court No.5 Bareilly in Case No.83 of 2018 arising out of Case Crime No.792 of 2017, under Sections 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Kotwali, District Bareilly, pending in the Court of learned Additional District and Sessions Judge, Court No.5, Bareilly, is hereby quashed only so far as the present applicants are concerned.

¶36

Order Date :- 22.10.2019 Dev/-

Nitin Agrawal and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Nitin Agrawal and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Abhinay Kumar Singh @ Rajj and Others Vs State of U.P. and Another

Smt. Kusumlata Goya Vs State of U.P.and Another

Naman Tripathi Vs State of U.P. and Another

Virendra Singh and Others Vs State of U.P. and Another

Smt. Chandra Kala and Others Vs State of U.P.and Another

Yashwant Singh Vs State of U.P. and Another