Allowed

Mohd Shamim @ Shamim @ Mulla v. State of U.P. and Another

Allahabad HC19 Sept 2024A482/24607/2024

Case brief

AI extract

What is this about?

Applicant sought quashing of Gangsters Act proceedings based on a solitary case in which he had been discharged by the trial court. Relying on Farhana v. State of U.P., the court held the foundation for prosecution had vanished and quashed the charge-sheet, cognizance order and entire proceedings.

What did the court decide?

Charge-sheet dated 5.3.2019, cognizance/summoning order dated 3.9.2019 and entire proceedings of Special Case No.77 of 2019 against applicant quashed; Section 482 application allowed.

Mohd Shamim @ Shamim @ Mulla vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:174361

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Court No. - 78

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Case :- APPLICATION U/S 482 No. - 24607 of 2024

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Applicant :- Mohd Shamim @ Shamim @ Mulla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Vinod Diwakar,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State, and perused the entire record.

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This application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet dated 5.3.2019 and cognizance/summoning order dated 3.9.2019 as well as entire proceedings of Special Case No.77 of 2019 titled as State v. Rahul Gupta and others, arising out of Case Crime No.535 of 2018, under section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Police Station Civil Lines, District Budaun.

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Learned counsel for the applicant submits the provisions of Gangster Act have been invoked against the applicant on the basis of solitary case shown in Gang Chart i.e. Case Crime No.410 of 2018, under section 407, 411 IPC, P.S. Civil Lines, Budaun. Learned counsel further submits that the applicant has been discharged in the aforesaid case vide order dated 21.3.2024 passed by learned Chief Judicial Magistrate, Budaun in Criminal Case No.6339 of 2018 titled as State v. Rahul and 4 others, therefore, there remains absolutely no basis to initiate and continue the instant proceedings, hence the proceedings of instant case are liable to be quashed.

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Per contra , learned A.G.A. has opposed the application, but could not dispute the submissions advanced by the learned counsel for the applicant.

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In the instant case, perusal of record shows that the proceedings under Gangsters Act were initiated against the applicant mainly on the basis of aforesaid case, in which the applicant had already been acquitted by the trial court. The case of the applicant is that as the very basis of initiating proceedings under Gangsters Act stands

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vanished and thus, the impugned proceedings under the Gangsters Act cannot be continued. At this stage, it would be pertinent to mention that recently in case of Farhana v. State of U.P., SLP (Crl.) No.437 of 2023, decided on 19.2.2024, the Supreme Court has held as under:

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"12. From a bare perusal of Section 2(b)(i) of the Gangsters Act, it would become apparent that the person alleged to be the member of the gang should be found indulging in anti-social activities which would be covered under the offences punishable under Chapters XVI, or XVII or XXII IPC. There is no dispute that the case set up by the prosecution against the appellants insofar as the offences under the Gangsters Act are concerned, is limited to Section 2(b)(i) reproduced supra and none of the other clauses of the provision have been pressed into service for the proposed prosecution.

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13. Needless to say that for framing a charge for the offence under the Gangsters Act and for continuing the prosecution of the accused under the above provisions, the prosecution would be required to clearly state that the appellants are being prosecuted for any one or more offences covered by antisocial activities as defined under Section 2(b).

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14. There being no dispute that in the proceedings of the sole FIR registered against the appellants for the offences under Chapter XVII IPC being Crime Case No. 173 of 2019, the appellants stand exonerated with the quashing of the said FIR by the High Court of Judicature at Allahabad by exercising the powers under Section 482 of Code of Criminal Procedure, 1973, vide order dated 3rd March, 2023 passed in Application No. 7228 of 2023.

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15. Hence, the very foundation for continuing the prosecution of the appellants under the provisions of the Gangsters Act stands struck off and as a consequence, the continued prosecution of the appellants for the said offence is unjustified and tantamounts to abuse of the process of Court.

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16. As a consequence of the discussion made herein above, the impugned orders dated 14th November, 2022 and 6th December, 2022 passed by the High Court of Judicature at Allahabad are quashed and set aside. Resultantly, the impugned FIR being Crime Case No.424 of 2022 for offence punishable under Section 3(1) of the Gangsters Act, registered at Police Station- Bhognipur, District- Kanpur Dehat and all the proceedings sought to be taken thereunder against the appellants are hereby quashed.

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17. The appeals are allowed accordingly."

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From the aforesaid pronouncement of the Supreme Court, it appears that in aforesaid case the proceedings under the Gangsters Act were initiated on the basis of two criminal cases, which were quashed by the High Court and it was observed by the Supreme Court that since the very foundation of continuing the prosecution of the appellants under the provisions of Gangsters Act stand struck off and consequently continuing prosecution of the

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appellant for offence under Gangsters Act is unjustified and tantamount to the abuse of the process of the Court. The said case law is squarely applicable to facts of the present case. In the instant matter also, the proceedings of solitary case, on the basis of which impugned proceedings were initiated, have been quashed and thus, the very basis of the impugned proceedings stands vanished and receded. Here it would be relevant to mention that there is no such evidence of any specific incident that the applicant was found indulging in anti-social activities covered under Chapter XVI, XVII and XXII, so as to bring them within the purview of Section 2 (b) (i) of the Gangsters Act.

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In view of the aforesaid discussions, particularly considering the fact that in the solitary case, on which proceedings under Gangsters Act were initiated against the applicant, the applicant had already been discharged from the charges by the learned trial Court and considering the aforesaid proposition of law, the instant criminal proceedings against the applicant for offence under Gangsters Act are unjustified and tantamount to the abuse of the process of the Court, hence the impugned proceedings are liable to be quashed.

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Accordingly, the impugned charge-sheet dated 5.3.2019 and cognizance/summoning order dated 3.9.2019 as well as entire proceedings of Special Case No.77 of 2019 titled as State v. Rahul Gupta and others, arising out of Case Crime No.535 of 2018, under section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, Police Station Civil Lines, District Budaun, against the applicant, are hereby quashed.

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The instant application under Section 482 Cr.P.C. is allowed.

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Order Date :- 6.11.2024 Anil K. Sharma

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Justice Vinod Diwakar

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Digitally signed by :- ANIL KUMAR SHARMA High Court of Judicature at Allahabad

Mohd Shamim @ Shamim @ Mulla v. State of U.P. and Another

Case brief

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Mohd Shamim @ Shamim @ Mulla v. State of U.P. and Another

Case brief

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