Petitioner challenged FIR under Gangster Act, alleging malice, violation of interim stay, and redundancy due to pending trials. Court dismissed petition, finding FIR valid and rejecting arguments based on Section 8 of Evidence Act. Jurisdiction exercised via Criminal Misc. Writ Petition.
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Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 11525 of 2021
Petitioner :- Atul Rai Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Rajrshi Gupta,Manish Singh,Sr. Advocate
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Dileep Kumar learned Senior Advocate assisted by Sri Manish Singh learned Advocate for the petitioner and perused the record.
By means of the present writ petition, the petitioner herein seeks for quashing of the first information report dated 23.10.2021 registered as Case Crime No. 0777/2021 lodged in Police Station Lanka, District Kashi (Commissionrate Varanasi).
It is vehemently argued by the learned Senior Advocate for the petitioner that the basis of lodging the first information report on 23.10.2021 alleging commission of the offence under Section 3(1) of the Uttar Pradesh Gangster & Anti Social Activities (Prevention) Act, 1986 (In short as "the Gangster Act"), is the Case Crime No. 0834 of 2017, which was lodged under Sections 147/ 148/ 149/ 364/ 307/ 342/ 352/ 323/ 504/ 34 IPC. The said first information report was challenged before this Court in Criminal Misc. Writ Petition No. 14032 of 2017 (Atul Rai vs. State of U.P. and 2 others), wherein vide order dated 26.7.2017, while disposing of the writ petition, it was directed by this Court that the petitioner herein shall not be arrested till cogent and credible evidence is collected showing the complicity of the petitioner in the said case or till submission of the police report under Section 173(2) Cr.P.C before the Court concerned, whichever is earlier.
It is submitted that as against the spirit of the aforesaid interim order, the petitioner had been arrested on 10.12.2017 and the Investigating Officer sought remand from the concerned Magistrate. The remand Magistrate had rejected the request of remand while observing in the order 10.12.2017 that the Investigating Officer could not collect cogent and credible evidence till that date and hence in accordance with the order of the High Court, the petitioner could not be taken into custody.
A contempt application was, thereafter, filed before this Court namely Contempt Application (Civil) No. 76 of 2018 (Atul Rai vs. Sri Sanjeev Mishra Station Officer P.S. Lanka and 3 others) wherein by the order dated 23.1.2018, this Court has called upon the Senior Superintendent of Police (opposite party no. 2 therein) to file his personal affidavit to explain the background in which the aforesaid observation had been made by the Remand Magistrate.
It is contended that after the order passed by the contempt Court, in a hurried manner, charge sheet had been submitted against the petitioner on 17.2.2018, which had further been subjected to challenge in Application U/S 482 No. 19162 of 2018 (Atul Rai vs. State of U.P. and another), wherein this Court had passed an order dated 16.7.2018 directing that no coercive measure shall be taken against the applicant (the petitioner herein). The interim order granted therein has been extended lastly on 8.12.2021.
The submission, thus, is that the lodging of the first information report under the Gangster Act on 23.10.2021 is nothing but violation of the interim protection repeatedly granted by this Court staying arrest of the petitioner and further that the Investigating Officer is bent upon to keep the petitioner behind bars. The contention is that the current first information report is an act of revenge on the part of the Investigating Officer.
From the gang chart appended at page '50' of the paper book, we may note that another criminal case namely the Case Crime No. 548 of 2019 under Sections 420, 376, 504, 506 had been lodged against the petitioner wherein a charge sheet dated 30.6.2019 had been submitted.
In this regard, the contention of the learned counsel for the petitioner is that the substantive offence which has been taken note to book the petitioner under the Gangster Act is Case Crime No. 834 of 2017 and Case Crime No. 548 of 2019 cannot be said to be basis of implicating the petitioner under the Gangster Act. It is then argued that in Case Crime No. 548 of 2019, the petitioner has been arrested on 26.2.2019 and is confined in jail and his bail application has been rejected. The trial in the aforesaid case is going on under the direction of this Court and the entire prosecution evidence has already been concluded. After recording statement of the petitioner under Section 313 Cr.P.C., the trial is proceeding for recording the statement of the defence witnesses. So far seven defence witnesses have recorded their statements. The latest order of the trial court dated 21.12.2021 has been placed before us to submit that the trial is proceeding at the stage of recording of statement
of defence witnesses.
Placing the above facts, it is vehemently argued that there was virtually no occasion for recording satisfaction in the first information report regarding any gang activity of the petitioner that too on the statement of the public, when the petitioner was already behind the bar on the date, i.e. 23.10.2021, when evidence regarding gang activity was allegedly collected by the first informant. The interim protection granted by this Court in Case Crime No. 834 of 2017 has been violated with impunity by the Investigating Officer.
The above circumstances are sufficient to conclude that the first information report is a result of malice of the Investigating Officer.
Lastly, it is argued that at the previous point of time between the year 2009 till 2012, four criminal cases under the Gangster Act have been lodged against the petitioner, details of which have been given in paragraph '15'' of the writ petition. In all those cases, trial is going on.
The contention, thus, is that separate first information report for the same offence, i.e. the offence under the Gangster Act allegedly committed in the year 2017 and 2019 cannot be registered. The basis of this argument is the provisions contained in Section 8 of the Evidence Act which says that any subsequent activity of the accused can be taken into consideration by the concerned court during the course of trial. The contention, thus, is that once the provision of taking into consideration of subsequent activities is in the statute, there is no occasion for lodging of the first information report with the object to book the petitioner to retain him behind the bar.
Learned A.G.A., on the other hand, submits that repeated criminal activities of the petitioner are evident from the record and no interference as such can be made.
Considering the submissions of the learned counsel for the parties and perused the record, dealing with the first argument of the learned counsel for the petitioner regarding malice on the part of the Investigating Officer, we may note that the charge sheet in the Case Crime No. 834 of 2017 was submitted on 17.2.2018 where after order was passed in the contempt proceeding in January, 2018 calling upon the Senior Superintendent of Police to submit his stand as to whether there was cogent and convincing evidence before the Investigating Officer on the date of arrest.
We may note that no report of any gang activity was lodged at that point of time. While the petitioner was out under the interim protection granted by the Court, he has been implicated in another criminal case in the year 2019, under Sections 420, 376, 504 and 506 IPC. The charge sheet in the said case was submitted on 30.6.2019. The current first information report has been lodged on 23.10.2021 after a period of two years of the order passed by the contempt Court.
It, therefore, cannot be accepted that the current FIR is a result of malice of the Investigating Officer or any police authority who had been called in the contempt proceeding before this Court two years earlier. As regards, the contention of learned counsel for the petitioner that the petitioner being in jail and his bail application having been refused, he could not have been booked under the Gangster Act. We do not find any substance in the said submission and suffice it to say that the first information report cannot be quashed on this ground.
As regards the contention of the learned counsel for the petitioner regarding pending trials under the Gangster Act and the provisions of Section 8 of the Evidence Act, we find the said argument being wholly misconceived, inasmuch as, any subsequent criminal activity of a person though may be taken note of during the course of trial of a previous criminal case, but the said person cannot be tried or convicted for any subsequent criminal activities in the pending trial. In the spirit of the criminal jurisprudence, every accused is presumed to be innocent till proved otherwise. It is the duty of the prosecution to prove beyond all reasonable doubts that the accused is guilty of committing the crime alleged. The accused person cannot be tried for an offence without collecting cogent or credible evidence against him during the course of investigation and submission of the police report in a first information report alleging commission of the offence.
Lastly it may be noted that there is no argument that the alleged activities, which have been reported in the first information report do not fall within the meaning of Anti-social activity so as to bring it within the meaning of 'Gang' under the Gangster Act. It cannot be said that from the reading of the first information report, no offence can be made out.
We may note that the FIR itself narrates that the Gang Chart dated 22.10.2021 was approved by the competent authority which contains two recent criminal cases against the petitioner. Apart from this, as brought before us, trial in four criminal cases under the Gangster Act are going on against the petitioner.
For all the aforesaid noted reasons, we do not find any case for quashing of the FIR. The writ petition is dismissed , accordingly.
Order Date :- 7.1.2022 Brijesh
3 issues framed by the court
Whether the First Information Report under the Gangster Act should be quashed on grounds of malice, violation of interim protection, or pending trials under Section 8 of the Evidence Act.
Whether a person in jail pending trial can be booked under the Gangster Act for subsequent criminal activities.
Whether pending trials preclude the registration of a new FIR under the Gangster Act.
1 provisions across 1 enactments
Atul Rai
State Of U.P.
Sunita Agarwal
Sadhna Rani (Thakur)
As recorded by the court registry
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