The Allahabad High Court has said that it is not necessary to have a criminal history for the implementation of the Gangster Act and sections of the Gangster Act can be imposed in the course of investigation of any base case.
The Division Bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Usman And 2 Others.
The petition has been preferred with the prayer to quash the impugned First Information Report dated 14.9.2022 registered as Case under Sections 147, 341, 352, 332, 504, 353, 384, 395 IPC and Section 21 (4) of Mines and Minerals Act and Section 3 Prevention of Damage to Public Property Act and Section 3 (1) of UP Gangster and Anti Social Activities (Prevention Act), 1986, PS Thakurdwara, District Moradabad, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
Counsel for the petitioners by referring to Rule 5 (3)(c), Rule 8 and Rule 10 of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021, submitted that gang-chart shall not be approved without completion of the investigation of the base case.
In the case, it is submitted that investigation in the base FIR is going on and during the course of investigation, provisions of Gangster Act have been imposed. Submission is that this could not have been done and is impermissible in law in view of the Rule 5(3)(c), Rule 8 and Rule 10 of the Rules, 2021 framed under the provisions of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986.
Apart from highlighting the aforesaid provisions, it is submitted that Rule 8 prohibits stating unconfirmed and false information and Rule 10 provides that along with gang chart, the certified copy of the charge-sheet and recovery memo shall be attached compulsorily, which is not so in the case as investigation in the base case is pending.
AGA opposed the petition and submitted that Gangster Act can be imposed during the course of investigation, falling in the category of cases mentioned in Rule 22 (2) of Rules, 2021.
AGA submitted that gang-chart has already been approved in the case.
AGA pointed out that Section 395 IPC has been added during investigation and therefore, provisions of Section 3 (1) of the Act, 1986 have been invoked against the petitioner, which can be done in the case.
The Court found that an exception has been carved out in Rule 22 of the Rules, 2021 wherein a single act/omission will also constitute an offence under the Act and first information report can be registered on the basis of a single case i.e, it is not mandatory that any criminal history must be recorded and alleged before registering an offence under the Act. Sub-Rule 2 of Rule 22 clearly provides that the Act may also come into force on a single prosecution in certain class of cases, which clearly provides various Sections including Section 395 IPC which is presently under investigation and the offence under this Act is being proved by the collected evidence, then along with the criminal act under consideration, the gang-chart shall be approved by the concerned Commissioner of Police/District Magistrate involved in the investigation of the said offence and the provisions of the Act can be imposed while investigating both the offences together in accordance with the provisions of the Act. Further, the charge-sheet can be sent to the Special Court constituted under the Act.
The Court further found that the heading of Rule 22 itself provides that criminal history is not mandatory and sections of the Gangster Act can be imposed in the course of investigation of any base case, which falls under the category of certain offences.
“We further find that the judgement in Ankit Sharma (supra) relied on by the counsel for the petitioner is of no help as there is no consideration of Rule 22 of the Rules, 2021, which clearly carves out an exception to the other Rules by providing that provisions of Gangster Act can be imposed during course of investigation in a case where investigation is going on in respect of various Sections of IPC as referred to in Sub-Rule 2 of Rule 22 of Rules, 2021, which is presently under investigation and wherein on the basis of collected evidence it is proved that an offence under the Gangster Act has also been made out and the gang-chart shall be approved and both the offences can be investigated in accordance with the provisions of the Gangster Act, 1986.
In such a view of the matter, we find no force in the arguments of the counsel for the petitioner”, the Court observed while dismissing the petition.