Allahabad High Court Issues Key Clarifications On Invocation Of UP Gangster Act

The Division Bench of Justices Vivek Kumar Birla and Arun Kumar Singh Deshwal quashed an FIR registered under the Gangster Act for not mentioning the exact corresponding provision of the Act. In doing so, it followed the ratio set down by a previous judgement by itself that is currently under review.

While doing so, it made certain clarifications on the application of provisions of the Gangster Act and the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules 2021 made under it.

Advocates Babu Lal Ram and Ramesh Kumar appeared for the petitioner, Sukurmpal alias Amit Jat. Advocate Ratan Singh appeared for the State.

Who can be prosecuted?

Section 2(b) of the Gangster Act defines 'gang' as a a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion, or otherwise. The provision lists 25 “anti-social activities”, which are offences under other legal enactments.

The Court clarified that it is clear from the definition of 'gang' under Section 2(b) that merely becoming a member of a gang will not be punishable unless the gang falls within the purview of Section 2(b) and the offences mentioned in the provision are committed for "for disturbing public order or committed by causing violence or threat or coercion or otherwise for the purpose of obtaining unfair trustworthy, pecuniary, economic, material or other advantage."

Rule 3 (Conditions of criminal liability) of the 2021 Rules mentions the same prescription on objective of the offence as in Section 2(b).

“Therefore, it is clear that for bringing an offence within the purview of the Gangster Act, it must be committed by a member of a gang for the object mentioned in Section 2(b)... by doing the activities mentioned under Sub-Section (i) to (xxv) of Clause (b) of Section 2,” the Court said.

The object with which an offence is committed is a crucial factor to be prosecuted against as a gang member under the Gangster Act.

Rule 4(2) and the bar under it

Rule 4(2) provides that "it is not necessary for him to have committed any offence together with all the members of the said gang". It added that if a member of that gang has committed any offence which comes within the purview of the Gangster Act, along with any other member or gang leader, they may be presumed to be a gang.

However, the proviso to this Rule provides that if a person has committed an offence which does not come under the Gangster Act along with another member more than three years ago, they cannot be “included in [a] gang”.

On the application of proviso to Rule 4(2), the Court said “(The) bar of proviso of Rule 4(2) of Gangster Rules, 2021 will apply only in those cases where the offences were committed three year or earlier from the date of preparation of gang chart and these offences do not come within the purview of Section 2(b) of the Gangster Act as well as under Rule 3 of the Gangster Rules, even though those offences may fall within the category of activities mentioned in Sections (i) to (xxv) of Clause (b) of Section 2 of the Gangster Act.”

The Court's clarification means that even if one of the offences mentioned in the list of "anti-social activities" was committed by a gang member, they would not be prosecuted against as a gang member if that offence was done more than three years ago without an aim of disturbing public order or committed by causing violence or threat or coercion or otherwise for the purpose of obtaining unfair trustworthy, pecuniary, economic, material or other advantage.

Application in the present case

Jat, had approached the high court through a writ petition for quashing of a First Information Report (FIR) registered in February 2024 and for a direction to the State to not take coercive action.

The FIR against Jat under Section 3(1) of the Gangster Act was filed on the basis of a chargesheet filed December 2020 in an earlier case. Jat contended the filing of the FIR and the preparation of a gang chart thereafter were in violation of proviso to Rule 4(2) of the 2021 Rules.

Jat’s contention was that the February 2024 FIR was lodged more than three years after the charge sheet in the earlier case was filed, enabling him to be protected under the proviso to Rule 4(2) and not be prosecuted against as a member of a gang.

Jat had also contended that the State had acted in contravention of the High Court’s previous judgement in Asim alias Hassim vs State of Uttar Pradesh (2023) where an FIR under Section 3(1) the Act was quashed since it was registered without mentioning the corresponding provision of Section 2(b).

“A person cannot be punished without specifying the offence committed by him which would justify his classification as a Gangster,” the High Court had held in that case.

In this regard, Rule 6 says that while preparing the gang chart, it must be clearly mentioned if an alleged act falls within the purview of Section 2(b) "along with the relevant provision."

The advocate for the State highlighted that the judgement in Asim alias Hassim was later referred to a larger Bench by the High Court. That reference is yet to be decided.

The High Court rejected the above argument and stated that “the law is well settled that mere reference to a Larger Bench will not dilute the proposition laid down by the judgement referred.”

The court therefore declared the FIR filed without mentioning the corresponding provision of the Act to be “illegal” in view of its previous judgement. It also quashed the gang chart prepared by the State.

Cause title: Sukarmpal @ Amit Jat v. State of UP and Ors. (Neutral Citation No. - 2024:AHC:161366-DB)

Appearance:

Petitioner: Babu Lal Ram, Ramesh Kumar

Respondent: AGA Ratan Singh

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