1. In all these matters the respective petitioners have challenged their prosecution for an offence under Sections 2 and 3 of the U.P Gangsters and Anti-Social Activities (Prevention) Act (in short ‘the Act’). Prayers have been made for quashing the respective F.I.Rs and for interim orders protecting them from arrest. The questions, that have been raised, may be categorised as follows:
1. There could not be prosecution under the Act for a single incident as the Act spoke of “anti-social activities” (in plural).
2. Prosecution under the Act for past offences was not thought of.
3. If at all the Act created a new concept of an offence, there must be some allegation that any act or omission towards the commission of the offence was there.
4. The words “indulges in” as used in Section 2 of the Act would only mean that there should be habituality of the acts covered by Section 2.
2. In addition to these major points, the individual cases will be dealt with separately.
3. The Act was necessitated with a view to control gangsterism and anti-social activities which were on the increase in the State. The Act was preceded by an ordinance and the objects and reasons of the ordinance were quoted by a Full Bench of this High Court in the case of Ashok Kumar Dixit v. State of U.P, reported in 1987 ACC 164 : (1987 All LJ 806) at Para 22. We may again quote the objects and reasons behind the instant enactment at page 811; of All LJ:
“Gangsterism and anti-social activities were on the increase in the State posing threat to lives and properties of the citizens. The existing measures were not found effective enough to cope with this new menace. With a view to break the gangs by punishing the gangsters and to nip in the bud their conspiratorial design it was considered necessary to make special provisions for the prevention of, and for coping with gangsters and anti-social activities in the State.”
“Since the State Legislature was not in session and immediate legislative action in the matter was necessary, the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Ordinance, 1986 (U.P Ordinance No. 4 or the 1986) was promulgated by the Governor on January 15, 1986, after obtaining prior instructions of the President.”
“The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Bill 1986 is accordingly introduced with certain necessary modifications to replace the aforesaid ordinance.”
4. In that paragraph of the judgment itself the Preamble of the Act was also quoted, as below:
“An Act to make special provisions for the prevention of, and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto.”
5. In the case of Ashok Kumar Dixit (supra) the constitutional validity of different provisions of the Act were discussed threadbare and the Full Bench was of the view that the Act was not ultra vires the Constitution and it was within the legislative competence of the State Legislature to enact the U.P Gangsters and Anti-Social Activities (Prevention) Act, 956. We must, therefore, start with the backdrop of this decision in our mind to see if the objections now raised by the petitioners are sustainable.
6. It has been contended before the Full Bench that the Act desired to punish a mere status of a person without there being any actus reus. This contention was negatived and the Court held that a person was not liable to be punished under the Act merely because he happened to be a member of a group. The Court was of the view that under this Act a person could be accused of an offence only if he had chosen to join a group which indulged in anti-social acitivities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The element of actus reus was clearly present in the offence created under the statute, as observed by the Full Bench.
7. In paragraph 58 of the judgment the Full Bench met the argument of the counsels that there would always be an apprehension that a person, though not physically present on the scene of occurrence, could be roped in under the provisions of the Act in relation to that occurrence on the facile ground that he was a gangster. The Court observed that the apprehension was not very real, but it also uttered a word of caution that it could not be dismissed as altogether imaginary or absurd. The Court observed that “police is sometimes prone to be overzealous and in order to win laurels, books all and one within the range of its rod. Needless to say, the Act has to be enforced in a reasonable manner. Care should be taken that no unnecessary inroad is made into the exercise of fundamental rights of the citizen or interference in the peaceful prosecution of their avocation.” In paragraph 59 of the judgment the Court further observed. “Thus, for booking a person under the provisions of the Act, the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.”
8. The Full Bench further observed in paragraph 60 of the judgment that under the ordinary criminal law, it was sometime difficult to bring to book the overloads of crime and under world because they seldom operated in person or in public case. They indulged in clandestine operations which threaten to tear apart the very fabric of the society. In the immediate next paragraph again a note of caution was sounded by the Full Bench observing “provisions of the Act cannot be used as a weapon to wreck vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts. The prosecution has to bear in mind that it has to bring home the guilt.”
9. As the legislative competence of the State and the constitutional validity of the Act were mainly questioned before the Full Bench the Court had not given any interpretation of the terms “gang” or “indulges in”. As to what was meant by the two words “indulges in” was considered by a Division Bench of this High Court in which one of us (S.K Phaujdar, J.) had been a Member. It was the case of Ajai Rai v. State of U.P, reported in 1995 All CC 477 : (1995 All LJ 1027). It was the opinion of the Division Bench that the words “indulges in” would carry the same meaning as “does” or “commits”.
10. The Division Bench in the case of Ajai Rai (supra) considered the above aspect in Paragraph 9 of its judgment and in the absence of any definition of the words in the Act looked for the Dictionary meaning thereof. The word “indulges”, according to the Webster, meant “to yield to the desire of or to get pleasure in doing” etc. The word “indulge”, according to Chamber, is a verb used as a transitive verb and also used as an instransitive verb. As a transitive verb, it meant “to yield to the wishes of”, or “to favour or gratify”, or “not to restrain”. In an intransitive verb a meaning was given to the word “indulge” parallel to, “permit oneself in action or expression”. The word used in the Act is not only “indulges” but also followed by another word “in” and the Division Bench was of the view that “indulges in”, as used in the Act, meant “to permit oneself in action or expression” and with this meaning it was opined that the words carried the same connotation as “does” or “commits”. The Division Bench was further of the view that these two common terms have been avoided by the legislature apparently for the reason that the words “indulges in” were followed by the words “anti-social activities” and the actions detailed in the 15 sub-clauses of Section 2 might not strictly come within the term “commits.”
11. We do not find any reason to differ from the opinion of the Division Bench in respect of the meaning of the words “indulges in” and we do accept the further view of the Division Bench expressed in that case that there was no need of any habituality in indulging in the anti-social activities, as detailed in the Act, and we may quote the words of the Division Bench to say “If the legislature had the intention that the Act would be applicable only to past proven acts, there was no bar for the legislature to have used the word “habitually” within the definition of gang.” When this word was intentionally dropped, we may not add it to give any restricted or wider meaning to the definition of the offence. Accordingly, point No. 4, as indicated above, is answered in the negative.
12. We may come to point No. 3, categorised by us in the earlier pages of this judgment. We are to see, if under the concept of the offence, created by the Act, there must be some allegation of any act or omission towards commission of the offence. While taking up the question of constitutional validity of the Act in the case of Ashok Kumar Dixit (supra), the Full Bench had made certain very important observations which are relevant for the present point. It was observed that a person was not liable to be punished under the Act merely because he happened to be a member of the group. The Court was, rather, of the view that a person could be accused of an offence only if he had chosen to join a group which indulges in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The Court was of the view “The element of actus reus is hence clearly present in the offence created under the statute.” Whenever any act or omission covered by Sections 2 and 3 of the Act is reported an offence is made out and as a corollary it may be indicated without any fear of contradiction that 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 F.I.R should be maintainable. Whether the allegations are true or false will be a matter for investigation, but unless the allegations of an offence under the Act are indicated, as F.I.R may not be justifiable whatever large the number of past acts be alleged against him.
13. As a sequel to this decision when there are some allegations of any act or omission towards the commission of the offfence under the Act to justify an F.I.R, it follows that such an F.I.R could lie even for a single incident as habituality of the acts is not required for making out an offence. The words used in Section 2 are no doubt in plural indicating “indulge in anti-social activities” but the sentence does not stop with the words “anti-social activities”. It goes on with the word, “viz.” followed by 15 clauses of anti-social activities enumerated therein. The plural in “anti-social activities” referred to the large number of activities to be brought under the umbrella of this single offence and it would never mean that there must be plurality of actions before a person could he prosecuted or convicted for an offence under the Act. When a specific offence has been created, it is open to be punished even for a single act, if it is covered by the requirements of law. We, thus, answer point No. 1 framed by us.
14. We are left with the question whether prosecution under the Act was thought of for past offences. We may, for a decision on this point, refer to the definition of the term “gang” as given in Section 2(b) of the Act. The requirement of this definition are that (1) “Gang” means a group of persons, (2) those persons might act either single or collectively, (3) such action is to be associated with violence or threat or show of violence or intimidation or coercion or otherwise, (4) such action must be with the object of disturbing public order or of gaining any undue advantage (temporal pecuniary, material or otherwise) for himself or for any other person. If under the condition of the above points anti-social activities, as enumerated under the definition, are indulged in then and then only the action could be designed as an action of a gang. If a person is a member or a leader or organiser of a gang, or if he abets or assists in the activities of a gang or harbours any person who has indulged in such activities, such person would be a gangster and he is to be punished with the penalty as indicated in Section 3 of the Act. All the anti-social activities enumerated under the definition of ‘Gang’ are not covered as offences, but were certainly unlawful activities having serious reflection on the society, though not termed as offences. The law, thus, never required that offence must have been committed in the past for a proper prosecution under this Act.
15. Section 4 of the Act speaks of special rules of evidence and States as under:
“4. Special Rules of Evidence.— Notwithstanding anything to the contrary contained in the Court (Code) or the Indian Evidence Act, 1872 (1 of 1872) for the purposes of trial and punishment for offences under this Act or connected offences;
(a) the Court may take into consideration the fact that the accused was—
(i) on any previous occasion bound down under Section 107 or Section 108 or Section 109 or Section 110 of the Code, or
(ii) detained under any law relating to preventive detention, or
(iii) externed under the Uttar Pradesh Control of Goondas Act, 1970 (Act No. 8 of 1971), or any other such law;
(b) where it is proved that a gangster or any person on his behalf is or has at any time been, in possession of movable or immovable property which he cannot satisfactorily account for, or where his pecuniary resources are disproportionate to his known sources of income, the Court shall, unless contrary is proved, presume that such property or pecuniary resources, have been acquired or derived by his activities as a gangster;
(c) where it is proved that the accused has kidnapped or abducted any person, the Court shall, presume that it was for ransom;
(d) where it is proved that a gangster has wrongfully concealed or confined a kidnapped or abducted person, the Court shall presume that the gangster knew that such person was kidnapped or abducted, as the case may be;
(e) the Court may, if for reasons to be × × × × × × × × × recorded it thinks fit so to do, proceed with the trial in absence of the accused and record the evidence of any witness, provided that the witness may be recalled for cross-examination if the accused so desires but recording his examination in chief afresh in presence of the accused shall not be necessary.”
Under these special rules of evidence, the Court is entitled to take into consideration the previous orders binding down an accused under Sections 107, 108, 109 or 110 of the Code of Criminal Procedure, or previous orders of detention under preventive laws, or previous orders of externment under the U.P Control of Goondas Act, but the special rules of evidence do not permit consideration of previous conviction for an offence under any other law. This also suggests that the past acts are not meant to be punished under the provisions of the present legislation.
16. In dealing with the procedures, Section 7 of the Act provides that only a special Court constituted under the Act is to take up a case under this Act, is to try an offence under this Act, and Section 10 provides that the special Court is empowered to take cognizance of any offence triable by it, without there being a regular commitment order and cognizance could be taken either on complaint or a police report. Section 8 provides that when a special Court tries any offence punishable under this Act, it can also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial. This suggests that if by a single act of omission the offender commits an offence under the general law as also one under this Act, both the offences may be tried together before the special Court. This saves the provisions of Section 300(4), Cr. P.C, as was observed by the Division Bench in Ajai Rai's case (supra) at paragraph 13 of that judgment. We may, therefore, conclude that allegations of past acts may not be the sole criterion for institution of a case for an offence under this Act, rather if there be old cases pending on the date of institution of the F.I.R under any other offence and for the same set of facts a case under this Act is also instituted, then those cases should also come to the special Court to avoid double jeopardy to the accused. We may, therefore, answer point No. 2 with the observation that a prosecution under the Act for past offence was not thought of unless elements of the offence under this Act are made out.
17. With the answer of these questions, as above, we may now take up the individual cases one by one. In taking up the aforesaid matters we are keeping in mind the words of caution uttered by the Full Bench in the judgment in the case of Ashok Kumar Dixit (supra) to rule out any overzealousness on the part of the police and to see further that no unnecessary inroad is made into the exercise of fundamental rights of the citizens or interference in the peaceful prosecution of their avocation. We are also to look to the records to see that prima facie satisfaction of the authorities was there that a person had “acted” before he is booked under the provisions of the Act and the authority had been satisfied that there was a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended. We are further keeping in mind the caution of the Full Bench that the provisions of the Act could not be used as a weapon to wreak vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts.
18. It is needless to say that arrest is an inroad on the liberty of a person and in the case of Joginder Kumar the Supreme Court had made a fine distinction between the power of arrest and the actual exercise of it. In our considered opinion, if a person, upon a certain set of facts, had once been arrested, the same process may not be repeated to his harassment simply because another offence is made out on the same facts. While it is open for the prosecution to include that new offence in the charge-sheet to be filed against the offfender, it would be against the concept of liberty that for the same act or set of acts a person would be arrested twice over. Protection against double jeopardy may not only mean protection against double conviction. It would also mean protection against being doubly arrested.
19. The cases in question that have been listed in the first few pages of this judgment were heard in different bunches on different dates and on sorting them out we find that in some of the cases F.I.Rs have been lodged by the concerned Police Officers only on perusal of the records at the Police Station and not upon any new allegation or new discovery of fact. These cases are listed below along with the case numbers, case crime numbers, and names of the parties.
Cr. Misc. Writ No. Names of the Petitioners. Case Crime No. 1.835 of 1998 Subhash 96 of 1997, P.S Kotwali Roorkee, Distt. Hardwar. 2. 809 of 1998 Gulab Singh 238 of 1997, P.S Thariaon, District Fatehpur. 3. 542 of 1998 Anish & Arun Thamas 1054 of 1997, P.S Kotwali, Moradabad. 4.641 of 1998 Rais Ahmad 435 of 1997, P.S Khaga, District Fatehpur 5. 293 of 1998 Ram Nakshatra Yadav 550 & 560 of 1997, P.S Chauri-chaura, Distt. Gorakhpur 6.51 of 1998 Nawal Pandey & Kamal Pandey 435 of 1997, P.S Khaga, Distt. Fatehpur.
20. In view of our discussions, as above, we are of the opinion that as these F.I.Rs do not indicate any act or omission on the part of the accused persons named in the F.I.Rs and are based solely on reading of records, no offence is made out and the F.I.Rs, as indicated in the foregoing paragraph of this judgment, are, therefore, not sustainable and are hereby quashed. As a consequence any arrest made or process issued or other steps taken in pursuance to these F.I Rs. are also nullity now. These six writ petitions are, therefore, allowed.
21. In the set of the other cases, the F.I.Rs are worded differently from the last mentioned ones. In these F.I.Rs the cases have been initiated not on mere reading of the old papers, but on some allegations of action or omissions on the part of the respective accused persons. It would be a different thing if the allegations were to be justified after investigation and if the past acts would be of any bearing on the allegations made in the F.I.Rs, but it may not be stated that no prima facie allegation for an offence under the Gangsters Act is there in each of these F.I.Rs In certain F.I.Rs, as would be indicated below, there were allegations of mala fide on the part of the Police Officers and there are also allegations in some cases of false involvement due to political rivalry. These matters may be considered on the question of grant of interim relief, but these F.I.Rs, in our view, are not liable to be quashed.
22. Writ Petition No. 870 of 1998 relates to Case Crime No. 164 of 1997 under Sections 2 and 3 of the U.P Gangsters and Anti-Social Activities (Prevention) Act, P.S Saroorpur, Meerut. The F.I.R was lodged by one Brijesh Pratap Singh, Station House Officer (in short ‘S.H.O’) of Saroorpur Police Station making allegations strictly in terms of the requirement of Sections 2 and 3 of the Act. He also gave the list of past cases in which the petitioner and others were involved. In all these cases charge-sheets were allegedly submitted. It was the plea of the petitioner, Tapendra Singh, that he was falsely implicated not only in the instant case but also in the past cases listed against him. It was also stated that in one of the cases levelled against him he stood honourably acquitted.
23. In Writ petition No. 866 of 1998, the petitioner, Mahesh Kumar Tiwari, is sought to be prosecuted for a similar offence in case Crime No. 80 of 1998 relating to P.S Georgetown, District Allahabad. The F.I.R was lodged on the basis of informations collected during usual routine rounds about the gang of the present petitioner and others and about their unlawful activities. This F.I.R also indicated several past cases against the petitioner and others. The petitioner submitted that he was also arrested in the past cases, indicated against him, and was granted bail, and only after his release on bail on 12-2-1998, the present F.I.R was registered on 22-2-1998.
24. In Writ Petition No. 850 of 1998, the petitioners Dilshad and Jamshed, have challenged the F.I.R in case Crime No. 354 of 1997, P.S Mandi, District Saharanpur. The F.I.R was lodged on the basis of general public opinion (JANTA MAIN SOHARAT AAM HAI). Two past cases were shown against the petitioners and others. It is the plea of the petitioners that they had already been arrested and released on bail in these two cases and the allegations' in the present F.I.R were all false.
25. In Writ Petition No. 747 of 1998, Ajai Pal Singh, challenges the F.I.R in case Crime No. 84 of 1997 of PS. Sahibabad, District Ghaziabad. The involvement was indicated on the basis of information given to the Inspector of Police and after giving the necessary allegations, eight cases were shown to have been committed by the alleged gang. The petitioner took up a plea that only three cases were shown against him and he was acquitted in two cases as far back as in 1985 and 1992 and only one case is pending against him in which he is on bail.
26. In Writ Petition No. 778 of 1998, Rajendra Kumar and Phool Chandra are the petitioners. They have been involved in case Crime Nos. 81 and 82 of 1998 relating to Police Station Kokhraj, District Kaushambi. The F.I.Rs were lodged again on the basis of public opinion and after giving the elements of the offence certain past acts were indicated against them and others. Two of the cases bore No. 161-A of 1988 and No. 141-A of 1988 suggesting that these cases were counter to the cases bearing Nos. 161 of 1988 and 141 of 1988, meaning thereby that there were two versions of the respective incidents. Nothing was spoken of these cases bearing Nos. 161 of 1988 and 141 of 1988. Charge-sheets were submitted in all the cases levelled against them and the petitioners submitted that they were agriculturists and were being tortured at the instance of their rivals. They asserted further that they were granted bail in the past cases levelled against them.
27. In Writ Petition No. 783 of 1998, the petitioner, Israr, is sought to be prosecuted in connection with case Crime No. 427 of 1997, P.S Kotwali, District Muzaffarnagar. This F.I.R was drawn up on the statement of the Officer-in-Charge of Kotwali Police Station making allegations of the elements required for the offence under the Gangsters Act and the allegations were followed by a list of three cases against, Israr. He was released in the first two cases and after the release order reached the jail, he got information that he was being detained for another case. He claimed identification, an identification parade was held, but he was not identified and was, thereafter, released in this case also. It was stated that the police personnel were inimical towards him under political influence and an influential political party was behind his false prosecution. He claimed that he was of a political view different from the party now in power and that was the reason for his false imlication.
28. In Writ Petition No. 787 of 1998 the petitioner, Kamlesh Singh, is involved in case Crime No. 336 of 1997 relating to P.S Saidpur, District Ghazipur. The F.I.R was lodged on the basis of information collected during investigation of another case and after making out the allegations necessary under the law to constitute an offence under the Gangsters Act the Police Officer had indicated nine cases against the petitioner ranging from 1985 to 1991. Not a single case, after 1991, was shown to have been started against the petitioner. It was stated that even though the allegations were, prima facie, accepted, the acts were stale and could not have been revived for the purpose of making a new prosecution under the Gangsters Act. The petitioner further stated that he was on bail in all these cases. It was asserted that he had made a prayer before the Additional Sessions Judge, Ghazipur, for action against the Officer-in-Charge of Kotwali Police Station for contempt of Court and this application was filed on 29-10-1997. The F.I.R of the Gangsters Act case, according to the petitioner, was lodged only thereafter only to wreak a vengeance.
29. In Writ Petition No. 827 of 1998 the petitioner is one Ram Lakhan Yadav. The case against him bears case Crime No. 785 of 1997 of P.S Dhoomanganj, District Allahabad. In addition to the allegations concerning the Gangsters Act, past cases were also indicated against the petitioner and in the writ petition it was stated that the allegations were false and the petitioner was a social worker, being a founder of a Junior High School in the locality and a deep-rooted enmity with one Ram Navami Yadav was alleged. This Ram Navami Yadav was a retired Police Officer and under his pressure the present case was initiated. Only two cases were levelled against the petitioner. He was not identified in the identification parade and was granted bail in both the cases.
30. In Writ Petition No. 67 of 1998, the, petitioners are Vishnu, Krishna Kumar, and Brahma, all sons of Soni Ram, and they are shown to be involved in case Crime No. 112 of 1997 relating to P.S Jamuna Par, District Mathura. The F.I.R was lodged on the basis of certain statements made to the Station Officer on 11-8-1997 and the complainant also narrated several past cases that were started against the petitioners. In the writ petition it was stated that the S.S.P, Mathura had asked for a report from the Senior Prosecuting Officer of the district about initiation of this case and the Senior Prosecuting Officer had opined that the acts alleged against the petitioners did not come within the purview of the Gangsters Act. It was further asserted that in most of the past cases shown against them police had submitted final report and some others had ended in compromise and in all these cases the petitioners had been arrested and were granted bail.
31. In Writ Petition No. 660 of 1998 there are two petitioners, viz. Hamid Khan and Riaz Khan, who are proposed to be prosecuted under the Gangsters Act on the bais of an F.I.R in case Crime No. 435 of 1997, P.S Kotwali, District Rampur. This F.I.R has been lodged by the Station Officer on the basis of his own knowledge and the past cases against the petitioners were also indicated. The petitioners urged that the instant F.I.R was a false one and in the past cases also they were involved only due to enmity. It was asserted that in two cases they were already on bail while the third case is under investigation.
32. In Writ Petition No. 450 of 1998, the sole petitioner is Sajid and the concerned case is case Crime No. 354 of 1997 relating to P.S Mandi, District Saharanpur. The F.I.R was lodged on general public opinion and the past acts were also indicated. The petitioner urged that the S.H.O of Mandi Police Station had a grudge against the petitioner and only due to this grudge a false F.I.R has been lodged. The past cases shown against him were described to be false and he was released on bail in those past cases. There was no element for any offence under the Gangsters Act against him, according to the petitioner.
33. In Writ Petition No. 583 of 1998 the concerned case is of P.S Kotwali City, District Ballia, bearing case Crime No. 15 of 1998 and the petitioner is one Gyanendra Rai alias Guddu Rai. The F.I.R was lodged by the Station House Officer of the Police Station against Gyanendra and another stating therein that they had formed a gang and had committed offence covered by the Gangsters Act. The past cases, ranging from 1996 till date, were indicated in the F.I.R The petitioner submitted in his writ petition that only three past cases were shown against him and he was granted bail in two cases, while the third case, under the Arms Act, did not come within the purview of the Gangsters Act. The petitioner claimed that he was a Proprietor of a Cinema Hall and was a respectable person of the locality and all the cases were falsely manipulated against him.
34. In Writ Petition No. 582 of 1998 there are four petitioners, viz. Mata Prasad, Krishna Gopal, Mool Chand and Rajesh, and the concerned case against them is case Crime No. 22 of 1998, P.S Poonch, District Jhansi. The S.O, Poonch, is the complainant and it was stated that these persons had formed a gang, as was disclosed during an enquiry and were engaged in anti-social activities, as per Section 2 of the Act. The F.I.R also indicated the past offences registered against them. It was submitted on behalf of the petitioners that according to the chart of the past cases the petitioners and others were shown involved in eight cases. One of the cases so registered was case Crime No. 94-A of 1996 and was a counter-blast to Crime No. 94 of 1996, which was lodged by the petitioner, Mata Prasad. It was further stated that another case was simply under the Arms Act and was not covered by the Gangsters Act. In any view of the matter it was asserted that the petitioners had already been released on bail in all these cases in which they were shown involved. It was asserted further that against police atrocities at Poonch they had moved representations in October, 1997 to higher police authorities and this was the reason, according to them, for lodging the F.I.R under the provisions of Gangsters Act.
35. In Writ Petition No. 569 of 1998 the prayer has been made in respect of case Crime No. 173 of 1997 of P.S Chakia, District Chandauli/Varanasi and the petitioner is one Dinesh. Here also in the initial part of the F.I.R the elements required for the offences have been alleged and in the latter part the past cases have been indicated. The petitioner was shown involved in three cases and the petitioner denied that he had any connection with other two persons with whom he was sought to be prosecuted in the present case. It was asserted that charge-sheet was submitted in the first case shown against him without any specific allegation of attempt to murder against him. In the second case, according to the petitioner, materials were there to show that the petitioner himself was badly injured on account of a family dispute and there had been a cross case as well. Regarding the third case, it was stated that he had never been involved in any gambling.
36. In Writ Petition No. 565 of 1998 the petitioner, Madan Gopal alias Madan Bhaiya, has challenged the F.I.R in case Crime No. 712 of 1997 relating to P.S Loni, Distt. Ghaziabad. The petitioner was shown involved in anti-social activities as a leader of a gang and several past cases were indicated against him. The petitioner claimed that he was formerly a member of State Legislative Assembly and he was once proceeded against under the provisions of the Gangsters Act in the year 1991, vide case crime No. 533 of 1991, P.S Loni, District Ghaziabad, and he had been released on bail in December, 1991 and had never misused the privilege. During the period from 1991 till 1995 there had been no registration of any case against him and only due to political rivalry certain cases were shown against him during 1996 and 1997. Even in those cases he was granted bail. In some of the cases investigation was transferred from the local police to the C.P C.I.D He had been externed from the District of Ghaziabad and under an order of the A.D.M, he is living at Delhi now. He took up a plea that when one Gangsters Act case was pending against him, a second could not be filed. This plea, however, is not acceptable as the offence under the Act is a substantive one and if a person commits a substantive offence more than once, he must face prosecution more than once. However, the fact is important that in the cases shown against him, he is already on bail.
37. Writ Petition No. 596 of 1998 relates to case Crime No. 37 of 1998, P.S Todi Fatehpur, District Jhansi. The sole petitioner, Hardwo, was shown involved in a gang committing anti-social activities and the F.I.R gave out certain past cases initiated against him, which are already under investigation. The petitioner submitted that he has been shown associated in a gang of certain other persons and this was, prima facie, false, as against those other persons there had been a criminal case lodged by the brother of the petitioner. It was asserted that the petitioner was an active supporter of a particular political party and he was being constantly pressurised to join rival political party, which he did not. This was stated to be the root of his false implication in the matter. Out of the cases shown against him, the petitioner asserted, he was acquitted in case Crime No. 2 of 1990, case Crime No. 22 of 1991 and case Crime No. 23 of 1991. In the other cases he was on bail.
38. In Writ Petition No. 761 of 1998 the petitioner, Sanjay, challenges the propriety of his prosecution in case Crime No. 748 of 1997, P.S Kavi Nagar, District Ghaziabad. In this case, in addition to the general allegation concerning the offence, five cases were shown registered against the alleged gang. It was the contention of the petitioner that the cases have been started against him with a view to ruin his political career. He was enlarged on bail in the aforesaid cases.
39. In Writ Petition No. 722 of 1998 the petitioner is one Raju alias Taj Mohammad, and the F.I.R in case Crime No. 235 of 1997 relating to P.S Chetganj, District Varanasi, has been challenged. The F.I.R was made by the Officer-in-Charge of the Police Station with usual allegations and contains a list of past cases. It was stated by the petitioner that he was on inimical terms with one Ibrahim and the position of his office was misused by the Sub-Inspector of Police, Chetganj. The petitioner was shown involved in four cases and he was on bail in these cases.
40. Writ Petition No. 733 of 1993 was filed by Mahajan Yadav, Ram Milan, Raj Kumar and Rajendra in connection with case Crime No. 41 of 1998 dated 5-2-1998 of P.S Tharwai, District Allahabad. The case was initiated by the Officer-in-Charge of P.S Tharwai and in addition to the allegations for an offence under the Gangsters Act, six cases were shown registered against the members of the alleged gang. The petitioners were granted bail in these cases and they asserted that they were falsely implicated in the past cases as well as in the instant case. It was further stated that four past cases, mentioned against the petitioners, were not at all maintainable as no offence was disclosed against them in those cases.
41. Writ Petition No. 745 of 1998 has been presented by one Rakesh Gupta in relation to case Crime No. 963 of 1997, P.S Kotwali, District Farrukhabad, and during investigation he gathered certain facts on the basis of which the case was started. It was also appended with a list of cases allegedly pending against the petitioner and other alleged members of the gang. The petitioner asserted that no case was made out against him for any offence under the Act. One thing, however, is not clear from the petition. He had prayed that he might not be arrested in relation to this F.I.R, lodged on 30-12-1997, but he has also indicated that he was arrested by the police of Kotwali Police Station, Farrukhabad, on 29-12-1997 and his father sent a telegram to the Chief Judicial Magistrate that he had not been released till the despatch of the telegram on 29-12-1997, and only thereafter the present case was lodged. He had himself sworn the affidavit before the High Court, which suggests that he was not so arrested. The order that will be recorded at the end of this judgment will be subject to the fact that he was not arrested in relation to this case on 29-12-1997 or 30-12-1997.
42. In Writ Petition No. 716 of 1998 one Seva Ram alias Guddu has challenged the F.I.R in case Crime No. 953 of 1997, P.S Kotwali Nagar, District Hardwar. The F.I.R spoke of a formation of a gang and commission of unlawful activities and 14 cases were charted against the persons nominated in the F.I.R These cases range from 1990 to 1997. The petitioner submitted that he was shown involved in four cases, as per the gang chart. In three of these cases he was released on bail and one was allegedly shown as a case not fit for investigation. At least for two cases there were counter versions also and counter cases were also registered.
43. Writ Petition No. 710 of 1998 was filed by one Madan in relation to case Crime No. 101 of 1997, P.S Khanpur, District Bulandshahr. The F.I.R was lodged on the basis of statements of villagers and several past cases were shown against the petitioner and other alleged members of the gang. It was the case of the petitioner that for him three cases were shown by way of past conduct. It was stated that case Crime No. 78 of 1988 was not pending against him. In case Crime No. 102 of 1995 he was not named in the F.I.R, but certain fake recovery was shown from him and in this case the petitioner was on bail. For the third case also it was stated that he was not at all involved in that case, although the present F.I.R shows the case against him. It is not clear from the writ petition if in the two cases in which he claims not to be involved he had been arrested or if any process to compel his appearance has been issued.
44. Writ. Petition No. 418 of 1998 relates to case Crime No. 386 of 1997 and 387 of 1997 lodged against the petitioners for offences under the Act. The petitioners are Nagina Mishra alias Shyam Nagina Mishra and Om Prakash Singh. The F.I.R names other members of the alleged gang and speaks about their unlawful activities, as also of the past cases pending against them. The petitioners asserted that both of them were proprietors of two business firms delaing in coal under proper authority. They made allegations against the S.H.O of demand of illegal gratification and when they did not oblige, according to them, the cases have been instituted. The past cases, according to the petitioners, were initiated only with a view to make a ground work for a false prosecution under the Act. The petitioners are yet to surrender in the past cases and it is clear that they have not been arrested as yet. Petitioner No. 1 had allegedly made a report to the Social Welfare Minister of U.P against the conduct of the S.H.O with a prayer to make over investigation to S.I.S There had been an administrative direction for change of investigation and stay of arrest till then. It was stated that applications have been moved by the police before the Special Judge (Gangsters Act) for issuance of process under Sections 82 and 83, Cr. P.C against them and such process have already been issued and their properties were under a threat of attachment. The action of the respondent No. 2 was stated to be mala fide and arbitrary.
45. In Writ Petitions No. 309 of 1998, 310 of 1998 and 311 of 1998 three different petitioners, viz. Babban Prasad Chaudhary alias Babbam Mallah, Mahesh Prasad, Chaudhary Ojha Prasad Chaudhary & Jawahir Mallah, and Manoj Kumar Chaudhary alias Manoj Mallah, have challenged the F.I.R in case Crimes Nos. 409, 410, 411, 412 and 413 of 1997, which were all drawn up on the basis of a single F.I.R The allegations were made herein that Mahesh Prasad Chaudhary was the gang leader and Manoj & Babban were members of the gang and they were engaged in anti-social activities like trafficking in narcotic drugs. For Mahesh Prasad Chaudhary it was alleged that five cases were pending against him under the provisions of the N.D.P.S Act. For Manoj Mallah, four cases under that Act were charted and for Babban Mallah also four cases were listed for offences under the N.D.P.S Act. There had been some more cases under the I.P.C also. Babban asserted that in the I.P.C case, he had already been acquitted and in one case under the N.D.P.S Act also he was acquitted. The paper produced in respect of this acquittal, however, does not relate to case Crime No. 49 of 1993, but there is an order of the High Court in Annexure ‘4’ for his release from custody for a detention under the Prevention of Narcotic Drugs and Psychotropic Substances Act. This order was passed by a Division Bench of this High Court on 5-11-1993. In other cases under the N.D.P.S Act the petitioner was on bail. For Manoj it was asserted that out of the four cases listed against him one was under the Arms Act not covered by the Gangsters Act. Regarding other cases it was stated that he was granted bail. Manoj asserted that he could not be deemed to be a member of a gang as he was never prosecuted in connection with the gang leader, Mahesh Chaudhary. For Mahesh Chaudhary it was asserted that he was already prosecuted under the provisions of the Gangsters Act in 1992. In our view, as expressed above, the offence under the Gangsters Act being a substantive one there may not be any bar for prosecution for a second occasion if there are allegations of commission of the offence again. It was stated that the whole family of the Chaudhary's was involved on false allegations. Mahesh was granted bail in all the cases levelled against him. For Ojha Prasad, four cases were charted and he was granted bail in all these cases. For Jawahir, there are also four cases shown against him and he too was granted bail in these cases.
46. Writ Petition No. 37 of 1998 was filed by one Shyam Lal challenging the F.I.R in case Crime No. 389 of 1991, P.S Moghal Sarai, District Chandauli. According to the F.I.R that was lodged by the Officer-in-Charge of P.S Moghal Sarai, eight persons were shown as forming a gang and engaged in unlawful activities. For the gang members several past cases were indicated in the F.I.R The petitioner asserted that the allegations were false. He was a law abiding citizen and was a Graduate from Benaras Hindu University with a bright academic career. He was an active member of a particular political party and was a Joint Secretary of the said party in his district. Over an election to the, State Legislative Council from Varanasi, there had been some political rivalry between the petitioner and certain others and only under that rivalry he has been falsely implicated in several cases by his political rivals, who had rather a criminal history to their credit. Nothing, however, was stated if the petitioner was on bail in the earlier instituted cases.
47. As discussed above, we have already quashed the F.I.Rs in six cases, as indicated in the earlier paragraphs of this judgment. The other cases have been discussed in the paragraphs immediately after recording that order and we find that although the F.I.Rs have been lodged not on past records but no definite action was alleged with date and time regarding the incidents upon which the F.I.Rs, have been drawn up. There are certain allegations in some of these cases about false implication due to political rivalry and personal animosity with the S.H.Os There are allegations in most of the cases that the petitioners are on bail in the alleged past criminal cases. In Ashok Kumar Dixit's case (supra) the Full Bench directed that the Courts are to put on guard against political vengeance and implication of innocent persons. This Court had observed in a earlier paragraph of this judgment that the principle of double jeopardy applies to repeated arrest for the same act or omission.
48. Under these circumstances, in the cases mentioned from the paragraph (last paragraph in page 18) dealing with Criminal Misc. Writ Petition No. 870 of 1998 onwards, it is directed that, while investigations would proceed, till collection of credible evidence in each case concerning involvement of the respective petitioners in offences under the U.P Gangsters and Anti-Social Activities (Prevention) Act, 1986, beyond the mere allegations of their involvement in past cases, no arrest be made. No coercive process be also issued/executed against the respective petitioners in these cases till such credible evidence is collected. The petitioners, however, will have to cooperate in investigation in all manners reasonably demanded of them. This stay order will not affect any legal proceedings or issuance of legal process against the respective petitioners in the past substantive cases pending against them. With the aforesaid directions and observations all these writ petitions stand disposed of.
49. Order accordingly.
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