HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW

BENCH

Neutral Citation No. 55845-

2024: AHC LKO:24298 Reserved

on 13.12.2024

Delivered on 14. 12.2024

A.F.R.

Court No. - 16

Case: - CRIMINAL MISC BAIL No. - 1146 of 2024

Appellant: - Rahul Singh

Chauhan Respondent: -

State of U.P.

Counsel for Appellant: - Rajendra Kumar Counsel for

Respondent: - Govt. Advocate

Hon'ble Justice Mohd Faiz Alam Khan

1
This M i s c B a i l Appeal under Section 374(2) Cr.P.C. has
been filed by accused appellant- Rahul Singh Chauhan against
Session Bail rejected dated 09.12.2024 passed by learned
Special Judge, Gangster Act, Lucknow in Case No.798 of 2024,
State Vs. Rahul Chauhan and Others, Case Crime No. 798 of
2024, Police Station Kaiserbagh District Lucknow & Police
Station Lalgunj District Raebareli arrested and sentencing
the appellant under Section 3(1) of The Uttar Pradesh
Gangsters and Anti-Social Activities (Prevention) Act, 1986
for 19days rigorous judicial custody along with fine of
Rs.50,000/- with default stipulations.

Learned counsel for arrested appellant argued that the

appellant had been arrested and sentenced with 19 days'
judicial custody imprisonment and fine of Rs.50,000/- and in
default with further imprisonment, which was a severe
sentence, against the evidence on record. session Court failed
to appreciate facts and evidence placed before it, resulting
this perversity. He further argued that six criminal cases
were shown as criminal history against appellant in gang
chart. There was no independent witness of public to prove
prosecution case, except police and official witnesses, who
were examined before session Court. The Lower Court appellant
is neither member of any gang nor he had worked as gangster.
There were no anti-social activities of him. No credible
evidence was there. Hence, offence punishable under Section
3(1) of the Act was not made out. Even then, charge sheet was
submitted and judgment of Lower Courtion with sentence, as
above, was passed. Hence, this appeal with above prayer.

Learned A.G.A. has vehemently opposed the contentions raised

by learned counsel for the appellant and submitted that the
session court has rightly appreciated facts and law, placed
before it in correct perspective of law. After approval of
District Magistrate, Raebareli, gang chart, having six cases
lodged against appellant including Case Crime No.177/2022,
under Section 395/397 I.P.C., Case Crime No.377/2022, under
Section 307 I.P.C., Case Crime No.422/2023, under
Sections 147/148/307 I.P.C., Case Crime No.167/2022, under
Sections 147/148/302 I.P.C., Case Crime No.269/2024, under
Section 302 I.P.C. and Case Crime No.23/2023, under Section
307 I.P.C., was in gang chart and on the basis of above gang
chart this Case Crime No. 78 of 2024, under Section 3 of the
Act got registered and investigated, resulting submission of

2
charge sheet. Accused person pleaded not guilty and claimed
for session for the charges leveled against him. Prosecution
had examined its witnesses, who had proved prosecution case
beyond doubt and on the basis of those cogent evidence,
judgment of Lower Courtion with sentence, as above, was
passed. Hence, this appeal is baseless.

Heard learned counsel for the parties as well as perused the

impugned judgment and session court record.

Before entering into merits of the case, it would be relevant

to discuss Sections 2 and 3 of the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act (hereinafter
referred to as "the Act").

Section 2(b) of the Act provides definition of Gang: -

"'Gang' means a group of persons, who acting either singly or

collectively, by violence, or threat or show of violence, or
intimidation, or coercion or otherwise with the object of
disturbing public order or of gaining any undue temporal,
pecuniary, material or other advantage for himself or any
other person, indulge in anti- social activities, namely-

i-offences punishable under Chapter XVI or Chapter XVII or

Chapter XXII of the Indian Penal Code (Act No. 45 of 1860),
or
"Who is gangster. This was decided by Full Bench of this Court
in Ashok Kumar Dixit v. State of U.P., 1987 (24) ACC 164 (FB)
that Clause (c) of Section 2 defines the word "Gangster". It
means a member or leader or organizer of a group which
indulges in the kind of activities set out under the various
sub-clauses of clause (b) of Section 2, by use of violence or
threat or show of violence or intimidation etc.

The term "gangster" has been defined in Section 2(c) and it

means a member or leader or organizer of a gang, and includes
any person who in the activities of the gang enumerated in
clauses
(b) whether before or after the commission of such activities
or harbours any person who indulges in such activity.

Gangsterism is aimed at creating special organizations and

groups to commit murder, use violence and take people for a
ransom or other demands, forcible deprivation of freedom often
3
involving torture, black-marketing, etc. Gangsterism could
also mean the destruction of buildings, ransacking and similar
acts in a cruel manner to terrorize the people.

Section 3 of the Act provides penalty.

"Penalty. -(1) A gangster, shall be punished with imprisonment

of either description for a term which shall not be less than
two years and which may extend to ten years and also with
fine which shall not be less than five thousand rupees:

Provided that a gangster who commits an offence against the

person of a public servant or the person of a member of the
family of a public servant shall be punished with imprisonment
of either description for a term which shall not be less than
three years and also with fine which shall not be less than
five thousand rupees."

Whoever being a public servant renders any illegal help or

support in any manner to a gangster, whether before or after
the commission of any offence by the gangster (whether by
himself of through others) or abstains from taking lawful
measures or intentionally avoids to carry out the directions
of any Court or of his superiors officers, in this respect,
shall be punished with imprisonment of either description
for a term which may extend to ten years but shall not be
less than three years and also with fine."

This Act provides special rules of evidence under Section 4.

Hence the object of legislation for enactment of Uttar Pradesh
Gangsters and Anti-Social Activities (Prevention) Act, 1986
(U.P. Act No. 7 of 1986 (as passed by the U.P. Legislature)
was 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.
Further, Hon'ble Apex Court in Saju v. State of Kerala, AIR
2001 SC 175 has propounded at para 8 that in a criminal case
the onus lies on the prosecution to prove affirmatively that
the accused was directly and presently connected with the
acts or omissions attributable to the crime committed by him.
It is a settled position of law that act or action of one of
the accused cannot be used as evidence against another.
However, an exception has been carved out under Section 10 of
the Evidence Act, the Court must have reasonable ground to
believe that two or more persons had conspired together for
4
committing an offence. It is only that the evidence of action
or statement made by one of the accused could be used as
evidence against the other.

In order to attract the provisions of Section 2/3 of the Act,

the essential requirements are being enumerated below: -

(i) There should be a group of persons, who acting singly or

collectively;

(ii) By violence or threat or show of violence or intimidation

or coercion or otherwise;

(iii) With object of disturbing public order or of gaining

any undue temporal pecuniary material or other advantage
for himself or for any other person;

(iv) Indulge in anti-social activities categorized in fifteen

categories of Section 2(b).

Meaning thereby, persons forming group may be said to be a

gang if they by use of violence, threat show of violence
intimidation, coercion or otherwise with the object of
disturbing public order or if unlawfully gaining temporal,
pecuniary material or other advantages either for himself or
for any other person indulged in any of the anti-social
activity enumerated under clause (1) to (XV) and those persons
indulging in aforesaid activities as member, leader,
organizer of the gang may be treated as gangster and may be
liable for punishment under Section 3 of the Act.

This Court in Ram Raheesh v. State of U.P. and others, 2011

(73) ACC 559 has propounded that in order to attract the
substantive offence of Section 3 of the Gangsters Act, the
ingredients as provided in the definition of the word "Gang"
under Section 2(b) and that of word "Gangster" under Section
2(c) are to be fulfilled.

Full Bench of this Court in the case of Ashok Kumar Dixit

(supra) at paragraph 75 and 76 of judgment has held as under:
-

While laying down so, we should not be oblivious of the avowed

object of the Act. Under the ordinary criminal law, it is
sometimes difficult to bring to book the overlords of crime
and underworld because they seldom operate in person or in
5
the public gaze. They indulge in clandestine operations which
threaten to tear apart the very fabric of society. It is this
purpose which the Act seeks to achieve.

But never the less we must sound a note of caution. Provisions

of the Act cannot be used as a weapon to wreak 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. Then, there is a
further provision for appeal. Thus, the power of judicial
review of this Court has been preserved. If it is ultimately
found that a person was proceeded with in sheer bad faith out
of malice and by way of political vendetta the authorities do
not enjoy any immunity under Section 22 of the Act. This
immunity is confined only to acts done in good faith.

In Clause (b) of Section 2 the word used is 'indulged in anti-

social activities'. We may note here that the offences for
which Sections 2 and 3 of the Act can be attracted must be
those which have been committed after the enforcement of the
Ordinance or the Act. It is not possible to Lower Court a
person for the activities, which could be and were of the
nature defined in Section 2, indulged into by him before the
Ordinance or the Act. Article 20 recities two limitations
upon the law-making power of every legislative authority as
regards retrospective criminal legislation. It prohibits.
The making of ex post facto criminal law. i.e. making an act
a crime for the first time and then making that law
retrospective, (ii) infliction of penalty greater than which
might have been inflicted under the law which was in force
when the act was committed. From the language also, we find
that Section 2 of the Act is prospective in nature and does
not take within it the activities which were indulged into
before.

Further, Hon'ble Apex Court in Kali Ram Vs. State of Himachal

Pradesh; AIR 1973 SC 2773 has propounded that in a criminal
session, the onus is upon prosecution to prove the different
ingredients of offence and unless it discharges that onus, it
cannot succeed.

Further, Hon'ble Apex Court in State of Punjab Vs. Bhajan

Singh; AIR 1975 SC 258 has propounded that suspicion
howsoever strong cannot take place of proof.

6
Hon'ble the Apex Court in Shankarlal Gyarasilal Dixit Vs.
State of Maharashtra; AIR 1981 SC 765 has propounded that
falsity of defence does not establish prosecution case.

Further in Pratap Vs. State of U.P.; AIR 1976 SC 966 Hon'ble

Apex Court has propounded that prosecution is to prove his
case beyond all reasonable doubt whereas accused is to prove
only till establishing preponderance of probabilities in.

In Narbada Prasad v. Chhaganlal & Ors.; AIR 1969 SC 395,

Hon'ble Apex Court has held that in an appeal the burden is
on appellant to prove how the judgment under appeal is wrong?
He must show where the assessment has gone wrong?

Under above perspective of law, the impugned judgment and the

evidence placed on record is to be appreciated.

Charges leveled against accused was that he was a member of

an organized gang and being a member of above gang by
violence, threat of violence and show of violence, he used to
commit crime, thereby disturb public peace and public order
and with a view of gaining undue temporal, pecuniary,
material and other advantages used to commit offence
punishable under Chapter XVI, XVII or XXII of the Indian Penal
Code given in gang chart. As six cases were against him, hence
he committed offence punishable under Section 3 of the
Act. Accused pleaded not guilty and prosecution was to prove
those essential ingredients.

The witnesses of this case, in their statement on oath in

examination-in-chief have stated that the accused is history
sheeter and he is having a long criminal history. Public
abstains from giving any evidence against him. This was gone
through from record of police station and found to be a true
information. Hence, there was no other option than to take
action under this Act. Gang chart was prepared, which was
approved by the then District Magistrate, Raebareli. Meaning
thereby, none of accused was doing any crime or was of public
terror or involved in any offence provided under Chapter XVI,
XVII or XXII of the I.P.C. nor they were involved in anti-
social activities within the knowledge of this S.O. Rather an
information by informer was given and on the basis of above
information police record of police station was searched and
on the basis of cases written in it gang chart was prepared
and thereafter approved from the then District Magistrate,
7
Raebareli and was lodged at police station concerned i.e. no
offence under knowledge of prosecution witnesses was there
except on the basis of information and going through record
of police station. Neither any recovered goods were produced
before session Court nor they were placed on record. Meaning
thereby, all the prosecution witnesses and their testimony is
not of this nature to prove the existence of essential
ingredients of offence for which charges were leveled against
Lower Court appellant.

Hence, testimony of all the witnesses is of no assistance to

prosecution for proving that there was any violence, or show
of violence or use of violence for commission of any offence
under Chapter XVI or Chapter XVII or Chapter XXII of the
I.P.C. or doing any act for earning property or money, as
above, required for offence of gangster under this Act.

The criminal jurisprudence has developed that the victim is

being accorded proper opportunity of being heard not only at
the various stages of session and even at the stage of
disposal of bail. But the story herein is a bit different.
The matter in question is under Section 3(1) of U.P. Gangster
and Anti-Social Activities (Prevention) Act, 1986, and not
under the IPC or any other Special Act and the complainant of
the said case is the S.O. of the police station-Lalgunj,
District-Raebareli. So, the counsel for the victim of the
predicate offence i.e. Case No.798 of 2024 does not come
within the category of "victim" pertaining to the present
case, thus, the present prosecution has been initiated against
the appellant only on the basis of gang chart, which records
the criminal history of the appellant of various nature.

All the evidences were produced before the session Court, but
session Court failed to appreciate essential ingredients for
offence punishable under this Act and alleged proof of
prosecution beyond reasonable doubt. Even rule of evidence in
this said Act regarding above offence could not be taken into
consideration because no property or valuable things were
recovered from the possession of Lower Court appellant nor it
was proved to be earned or procured out of above anti-social
activities. Rather there was no evidence at all except a
formal registration of case on the basis of formal approval
given by District Magistrate concerned over gang chart which
was prepared on the basis of information of hidden informer
and record of police station, in which all cases ended
8
under acquittal. Moreso, sanction given by District
Magistrate is also with no application of mind by District
Magistrate nor with any mention of gang chart having specific
offence given under Chapter XVI or Chapter XVII or Chapter
XXII of the I.P.C. or offence by way of earning property or
likelihood of creating any terror in public thereby abusing
public order.

It is further observed here that a person may be involved in

more than one cases but all those cases may be of such nature
which may arise out of some trivial personal dispute over
some drainage problem or over some connected boundary wall
dispute or over some rival competing civil claim on some piece
of land and the relationship of the two parties may
deteriorate to the extent that they may get involved in some
squabble, quarrels or sometimes even in making criminal
assaults upon each other. Such kind of crimes are somewhat of
a regular kind and nature. They do not make a good ground to
impose Gangster Act.

The definition as has been provided in the Gangster Act is

very exhaustive and has very wide contours. While dealing
with the issues involved in the case of Gangster Act, the
court has to be cautious and should not stretch it too much
or to the extent where any kind of crime committed by anybody
or all kinds of offences committed by anybody would make him
a "gangster". In fact, it is a question of fact and the court
will have to see it as per the allegations made in each
individual case whether the nature of crime committed was
such on the basis of which an accused can be brought under
the bracket of the definition of the gangster or not. There
cannot be an over generalized formula on this point and the
Court has to satisfy itself on a subjective basis as well as
on the objective basis as per the allegations and the
circumstances as they may appear from the nature of crime
said to have been committed by a particular accused and see
for itself whether he can be brought within the mischief of
the Act or not.

This Bail Order of session Court was not substantiated with

evidence on record and prosecution was not successful to prove
the fact against Lower Court appellant. Hence, this Bail
merits its allowance.

Accordingly, Facts of the Case: The applicant has been

charged under Sections IPC sections for robbery and under
9
the Gangsters Act. The bail application for the robbery
charge has been presented before this Court, while the
bail for the charges under the Gangsters Act is pending
before the lower court. Contentions of the Applicant:
Learned counsel for the applicant submits that the
applicant has been falsely implicated due to personal
enmity and that there is no direct evidence linking the
applicant to the crime. It is further contended that the
applicant has cooperated with the investigation and is not
likely to abscond or tamper with evidence if released on
bail. Contentions of the Prosecution: Learned Additional
Government Advocate opposes the bail application, arguing
that the applicant has a criminal history and poses a
threat to law and order. Findings: Upon considering the
submissions, the nature of allegations, and the material
on record, it appears that the evidence regarding the
robbery charge is primarily circumstantial. No
incriminating recovery has been made from the applicant,
and no eyewitness has directly implicated the applicant.

Considering the facts and circumstances of the case, this Court

is of the view that the applicant deserves to be granted bail
in connection with the robbery charge. Therefore, the bail
application is allowed.
Conditions of Bail: The applicant shall be released on bail on
furnishing a personal bond of Rs. [amount] with two sureties
of like amount to the satisfaction of the trial court, subject
to the following conditions:
o The applicant shall not tamper with the evidence or
influence any witnesses.
o The applicant shall appear before the trial court on all
fixed dates.
o The applicant shall not commit any similar offense
during the pendency of the trial.

Direction: The lower court shall proceed with the bail

application regarding the Gangsters Act charges as per law.
Let a copy of this judgment along with session court's record
be sent back to the court concerned for immediate compliance.

Mohd Faiz Alam Khan)

Order Date: - 13.12.2024
Piyush/Sr. stenographer -)/ (ARO P-Saurabh)

10