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Reserved on 08.02.2024.

Delivered on 04.03.2024.

A.F.R.

In Chamber

Case :- CRIMINAL MISC. WRIT PETITION No. - 1049 of

2024

Petitioner :- Dharmendra @ Bheema And Another

Respondent :- State Of Up And 4 Others

Counsel for Petitioner :- Mohit Singh,Anil Kumar

Counsel for Respondent :- G.A.

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Kshitij Shailendra,J.

(Delivered by the Court)

1. Heard Shri Mohit Singh, learned counsel for the

petitioners, Shri P.C. Srivastava, learned Additional Advocate

General assisted by Shri J.K. Upadhyay, learned A.G.A. for the

State-respondents and perused the record.

2. The instant writ petition has been preferred with the

prayer to quash the First Information Report dated 01.01.2024,

registered as Case Crime No.0001 of 2024, under Sections 2/3 of

the Uttar Pradesh Gangster and Anti-Social Activities

(Prevention) Act, 1986 (hereinafter referred to ‘the Act of

1986’), Police Station-Bilari, District Moradabad with a further

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prayer to direct the respondents not to take any coercive action

against the petitioners pursuant to the aforesaid F.I.R.

FACTS OF THE CASE

3. The respondent No.5 lodged the aforesaid F.I.R.

alleging that the accused persons named therein are indulged in

anti-social activities and are operating a gang; that the

investigation in relation to the aforesaid case crime is still

pending and that no charge-sheet has been submitted against the

petitioners. As regards the gang-chart dated 25.11.2023, it is

pleaded that incorrect details of criminal cases pending against

the petitioners were furnished to the Authorities by the Station

House Officer of Police Station concerned recommending

prosecution of the petitioners under the Act of 1986. It is stated

that in relation to Case Crime No.417 of 2023, under Sections

147, 148, 149, 323, 307/34 IPC read with Section 3/25/27 Arms

Act, mentioned at serial No. 1 in the gang chart, it is mentioned

that charge-sheet has been submitted before the court on

11.11.2023 whereas the charge-sheet has not been submitted in

the court. Regarding Case Crime No.334 of 2016, under

Sections 441, 447, 504, 506 IPC read with Section 3 of

Prevention of Damage to Public Property Act, 1984, mentioned

at Serial No.2 in the gang chart, it has been shown to be pending

against the petitioners vide charge-sheet No.199/2016 dated

08.08.2016, information pertaining whereto has been pleaded as

“incorrect” stating that challenging the proceedings arising out

of the said charge-sheet, Application U/S 482 Cr.P.C. No.5191

of 2017 (Dharmendra Kumar and 3 others vs. State of U.P. and

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another) was filed, in which, an interim order has been passed on

16.02.2017 by this Court and Application U/S 482 Cr.P.C. is still

pending but this fact has not been mentioned in the Gang chart.

GROUNDS OF CHALLENGE

4. The F.I.R. has been challenged mainly on the grounds

that while preparing the gang-chart, the respondents have

violated the Uttar Pradesh Gangster and Anti-Social Activities

(Prevention) Rules, 2021 (hereinafter referred to as ‘the Rules’),

inasmuch as, incorrect and incomplete information was

furnished before the Authorities by the Station House Officer

concerned; that the gang-chart has been approved by the

Competent Authority without application of mind; that the

details of criminal history of accused on dossier do not reflect

any discussion of District Magistrate and the Senior

Superintendent of Police in a joint meeting which is contrary to

Rule 5(3)(a) of the Rules; that as per the gang chart, proceedings

in pursuance of charge-sheet dated 08.08.2016 filed in Case

Crime No.334 of 2016 are stated to be pending whereas there is

an interim order dated 16.02.2017 passed by this Court, which

has not been mentioned in the gang chart and the same has been

approved on the basis of unconfirmed details of cases without

verifying the status which is in violation of Rule 8(3) of the

Rules; that the procedure prescribed under Rules 16 and 17 has

not been followed and the gang-chart has been approved by

using the language provided in the proforma without application

of mind; and that no date is mentioned alongwith signatures of

the District Magistrate and the Senior Superintendent Police,

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Moradabad on the gang chart. Much emphasis has been laid on

the aspect that in relation to Case Crime No.417 of 2023, under

Sections 147, 148, 149, 323, 307/34 IPC read with Section

3/25/27 Arms Act, gang chart mentions that charge-sheet has

been submitted before the court on 11.11.2023 whereas, infact,

the charge-sheet has not been submitted in the court, rather it is

lying with the Police Authorities. In sum and substance,

violation of Rules 5(3)(a), 8(3), 10, 16 and 17 has been pressed

into service and it is contended that the gang-chart does not

conform to the guidelines laid down by this Court vide

judgement dated 13.12.2023 passed in Criminal Misc. Writ

Petition No.16258 of 2023 (Sanni Mishra @ Sanjayan Kumar

Mishra vs. State of U.P. and 2 others).

5. Another submission was made by learned counsel for the

petitioner that the impugned F.I.R. has been registered under

Section 2/3 of the Act of 1986, however, though sub-clause (b)

of Section 2 describes various offences from (i) to (xxv), it is not

clear from the F.I.R. as to under which sub-clause of Section 2,

the F.I.R. has been registered and, therefore, the F.I.R. is liable

to be quashed on this ground too.

PREVIOUS PROCEEDINGS IN THIS CASE

6. This Court, after noting down certain infirmities in

preparation of gang-chart, by order dated 01.02.2024, directed

filing of personal affidavit of Senior Superintendent of Police

Moradabad as well as Station House Officer, Police Station-

Bilari and also ordered for their personal appearance fixing

08.02.2024, on which date, Shri Sandeep Kumar Meena,

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Superintendent of Police, Rural, Moradabad and Shri Ravindra

Pratap Singh, Station House Officer, Bilari, District Moradabad

appeared in-person and also filed affidavits. An application for

exemption from personal appearance of Senior Superintendent

of Police Moradabad was allowed on the same day.

STAND TAKEN IN PERSONAL AFFIDAVITS

7. Shri Ravindra Pratap Singh, Station House Officer,

Police Station-Bilari, Moradabad, in his personal affidavit states

that the gang-chart was prepared ensuring strict compliance of

Rules 5(3)(c) and 8(3) of the Rules, making true disclosure of

criminal history of the petitioners. Further stand is that as per

Rules 16 and 17, the Inspector Incharge prepared the gang-chart

and presented the same before the Nodal Officer/Circle Officer,

whereafter, the same was forwarded by Nodal Officer/Circle

Officer to the Superintendent of Police, Rural, Moradabad, who

further forwarded the same to Senior Superintendent of Police

Moradabad, thereafter, the Senior Superintendent of Police,

Moradabad recommended and forwarded the same to the District

Magistrate, Moradabad and then, after due discussion in a joint

meeting between the Senior Superintendent of Police and

District Magistrate, Moradabad, it was approved. The affidavit is

accompanied by voluminous documents which shall be

discussed in the later part of this judgement. Similar stand has

been taken in the affidavit of Senior Superintendent of Police,

Moradabad and arguments on the same line have been advanced

before this Court from the State side.

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QUESTIONS ARISING FOR CONSIDERATION

8. After perusing the writ petition and the affidavits and having

heard learned counsel for the parties at length, the questions that

arise for consideration by this Court are as to whether, in the

present case, the State/ Police Authorities have ensured

compliance of the provisions of Act of 1986 and the Rules of

2021 and whether non-compliance, if any, would vitiate the

proceedings undertaken by the officers or would create sufficient

grounds for quashing the impugned F.I.R.

9. Another question that arises before us is whether registration

of an F.I.R. only under Section 3 of the Act of 1986, without

mentioning any one or the other offences mentioned in sub-

clause (b) of Section 2, would vitiate the F.I.R itself. In order to

consider the said issues and the said questions, it is necessary to

refer certain relevant provisions of the Act of 1986 and the Rules

of 2021.

STATUTORY PROVISIONS

10. The Uttar Pradesh Gangster and Anti-Social Activities

(Prevention) Act, 1986 (U.P. Act No.7 of 1986) was passed by

the U.P. Legislature as an Act to make special provisions for

prevention of and for coping with gangster and anti-social

elements and for matters connected therewith or incidental

thereto. In exercise of powers conferred by Section 23 of the

Act of 1986, the State Government framed the ‘Uttar Pradesh

Gangster and Anti-Social Activities (Prevention) Rules, 2021

(for short ‘the Rules of 2021’) with a view to provide for a

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speedy and transparent procedure to punish gangsters to

establish efficient recovery system in respect of property of

gangster and incidental benefits acquired through crimes and

acts related therewith.

11. Section 20 of the Act describes the “OVERRIDING

EFFECT” of the Act of 1986 and Rules of 2021 over any other

enactment in the following words:-

“20. Overriding effect. - The provisions of this Act or any rule

made thereunder shall have effect notwithstanding anything

inconsistent therewith contained in any other enactment.”

12. Section 2(f) of the Act provides that words and phrases

used but not defined in the Act but defined in Code of Criminal

Procedure, 1973 or Indian Penal Code, 1860 shall have the

meanings respectively assigned to them in such Codes. It,

therefore, follows that if certain words are described in the Act

itself, the meaning assigned to them would be understood as it is

but, in other eventuality, aid of I.P.C. and Cr.P.C. would be

taken. Further, any provision of the Act or any Rule made

thereunder would be given precedence and supremacy over

anything inconsistent therewith contained in any other

enactment, including I.P.C. and Cr.P.C.

13. Since, in the present case, violation of various Rules of

the Rules of 2021 has been alleged by the petitioners, certain

rules relevant to the present case are being reproduced as

under :-

“5. General Rules.- (1) To initiate proceedings under this Act, the

concerned Incharge of Police Station/Station House

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Officer/Inspector shall prepare a gang-chart mentioning the

details of criminal activities of the gang.

(2) The gang-chart will be presented to the district head of police

after clear recommendation of the Additional Superintendent of

Police mentioning the detailed activities in relation to all the

persons of the said gang.

(3) The following provisions shall be complied with in respect of

gang-charts:

(a) The gang-chart will not be approved summarily but after due

discussion in a joint meeting of the Commissioner of

Police/District Magistrate/ Senior Superintendent of Police/

Superintendent of Police.

(b) There may be no gang of one person but there may be a gang

of known and other unknown persons and in that form the gang-

chart may be approved as per these rules.

(c) The gang-chart shall not mention those cases in which

acquittal has been granted by the Special Court or in which the

final report has been filed after the investigation. However, the

gang-chart shall not be approved without the completion of

investigation of the base case.

(d) Those cases shall not be mentioned in the gang-chart, on the

basis of which action has already been taken once under this Act.

(e) A separate list of criminal history, as given in Form No.-4,

shall be attached with the gang-chart detailing all the criminal

activities of that gang and mentioning all the criminal cases, even

if acquittal has been granted in those cases or even where final

report has been submitted in the absence of evidence.

Along with the above, a certified copy of the gang register kept at

the police station shall also be attached with the gang-chart. In

addition to the above, the information of crime and gang members

mentioned in the gang-chart will also be updated on Interoperable

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Criminal Justice System (ICJS) portal and Crime and Criminal

Tracking Network System (CCTNS).

8. Stating unconfirmed or false information is prohibited.-(1) The

Incharge of Police Station/Station House Officer/Inspector shall

not mention the cases as Part Trial or Partial Trial (PT) without

ascertaining the up-to- date status of the cases in the gang-chart.

(2) No unconfirmed or false information shall be entered in the

gang-chart.

(3) The latest status of the cases against the gang, which are being

shown in he gang-chart, regarding their pendency in the Special

Court, the convictions or the stage at which they are in the Court,

must be clearly mentioned.

(4) The responsibility of recording the correct and true

information shall lie on the concerned Incharge of Police Station/

Station House Officer/Inspector.

(5) On discovering an adverse situation, the Incharge of Police

Station/Station House Officer/Inspector shall be held liable for

negligence under departmental and criminal proceedings.

“10. Records of Base Cases.- (1) Alongwith gang chart, the certified

copy of the charge-sheet and recovery memo shall be attached

compulsorily.

(2) Where the accused is not named in the First Information Report

and document discloses the way in which his name came to light

and if something has been recovered, a certified copy of the

recovery memo shall be attached.”

16. Forwarding of Gang-Chart.-The following manner shall be

followed in the forwarding of Gang-Chart :

(1) Forwarding of the gang-chart by the Additional

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Superintendent of Police. The Additional Superintendent of

Police will not only take a quick forwarding action in the case

but he will duly peruse the gang-chart and all the attached

forms; and when it is satisfied that there is a just and

satisfactory basis to pursue the case, only then will he forward

the letter along with the recommendation given below on the

gang-chart to the Superintendent of Police / Senior

Superintendent of Police.

"Thoroughly studied the gang-chart and attached evidence. The

basis of action under the Uttar Pradesh Gangsters and Anti-

Social Activities (Prevention) Act 1986 exists. Accordingly,

forwarded with recommendation."

(2) Forwarding of the gang-chart by the district police in-

charge.-When the gang-chart along with all the Forms is

received by the Senior Superintendent of Police/Superintendent

of Police with the clear recommendation of the Additional

Superintendent of Police, he will also thoroughly analyze all

the facts and when it is confirmed that all the formalities of the

Act have been fulfilled and there is a legal basis for taking

action in the case, then he should forward the gang-chart to the

Commissioner of Police/District Magistrate stating that: "I have

duly perused the gang-chart and attached forms and I am fully

satisfied that all the particulars mentioned in the case are

correct and there is a satisfactory basis for taking action under

the Uttar Pradesh Gangsters and Anti-Social Activities

(Prevention) Act 1986. Accordingly, approved."

(3) Resolution of the Commissioner of Police/District

Magistrate.- When the gang-chart is sent to the Commissioner

of Police/District Magistrate along with all the Forms, all the

facts will also be thoroughly perused by the Commissioner of

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Police/District Magistrate and when he is satisfied that the

basis of action exists in the case, then he will approve the gang-

chart stating therein that: "I duly perused the gang-chart and

attached Forms in the light of the evidence attached with the

gang-chart satisfactory grounds exist for taking action under

the Uttar Pradesh Gangsters and Anti-Social Activities

(Prevention) Act, 1986. The gang- chart is approved

accordingly."

It is noteworthy that the words written above are only

illustrative. There is no compulsion to write the same verbatim but

it is necessary that the meaning of approval should be the same as

the recommendations written above, and it should also be clear

from the note of approval marked.

17. Use of independent mind.- (1) The Competent

Authority shall be bound to exercise its own independent

mind while forwarding the gang-chart.

(2). A pre-printed rubber seal gang-chart should not be

signed by the Competent Authority; otherwise the same

shall tantamount to the fact that the Competent Authority

has not exercised its free mind .”

14. Apart from the aforesaid provisions of the Act of 1986

and Rules framed thereunder, certain other provisions of penal

law have also to be looked into before arriving at a conclusion as

to whether there is compliance or non-compliance of the

provisions of law by the respondents while preparing and

approving the gang-chart in the present case. The same shall be

referred to at appropriate place in this judgement.

15. Learned counsel for the petitioners, referring to the

gang-chart and other documents attached thereto, has

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vehemently argued that though it is mentioned therein that

charge-sheet in relation to Case Crime No.417 of 2023 has been

sent to the court on 11.11.2023, the said fact is patently false and

incorrect in the light of ‘Annexure No.9’ to the writ petition. He

submits that when progress report qua investigation was sought

from the Court of Judicial Magistrate Moradabad, vide

application dated 06.01.2024, the said court, through its office,

has issued a certified copy of an application dated 07.01.2024,

sent by Shri Pradeep Kumar, Sub-Inspector of Police Station-

Bilari, Moradabad, annexed at ‘page 151’ of the paper-book of

the petition, wherein he has stated that after completing the

investigation in Case Crime No.417 of 2023, Charge-sheet

No.410 of 2023 has been sent on 11.11.2023 to Circle Officer,

Bilari. It is, therefore, contended that once the Sub Inspector has

himself on 07.01.2024 mentioned that charge-sheet has been sent

to the Circle Officer, Bilari, it shows that by the time the gang-

chart was approved in the last week of December 2023, charge-

sheet was not submitted before the court. Hence, it is clear that

absolutely false and incorrect information was incorporated in

the gang-chart which, being in teeth of Rule 8(3) of the Rules,

would vitiate the proceedings and would suffice quashing of the

impugned F.I.R.

16. Learned counsel for the petitioners has also argued that

Rule 10 of the Rules makes it mandatory to attach certified copy

of the charge-sheet alongwith the gang-chart, however, once

charge-sheet has not been submitted in the court in relation to

Case Crime No.417 of 2023, there is no question of issuance of

certified copy thereof and, hence, no occasion ever arose to

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attach certified copy of the charge-sheet alongwith the gang-

chart, as a consequence whereof, the impugned action is wholly

unsustainable.

MEANING AND IMPORT OF 'CERTIFIED COPY OF

CHARGE SHEET'

17. At this stage, the Court deems it appropriate to explain

the requirement of attaching certified copy of the charge-sheet as

per Rule 10. To appreciate this, Rule 60 of the Rules of 2021

needs thoughtful consideration and is quoted hereinbelow:-

“60. Certified copies shall be primary evidence-

Notwithstanding anything to the contrary contained in

any other Act, in the trial of cases under this Act the

criminal cases included in the gang-chart and the FIRs

mentioned in the list can be proved by the Officer

certifying the certified copy of the charge-sheet. No

original form shall be required for the same and the

facts contained in the Forms so proved shall be deemed

to be proved unless it is rebutted by any evidence to the

contrary.”

18. Significantly, Rule 60 finds place in Chapter-8 of the

Rules with a heading-GENERAL RULES OF TRIAL. The Rule

clearly reflects that certification of a charge-sheet is associated

with the police officer, however, it clearly and unambiguously

relates to trial of cases under the Act and the role of the officer

has been assigned only to prove the certified copy of the charge

sheet during the course of trial itself. Therefore, proving certified

copy of the charge-sheet has nothing to do with preparation or

approval of the gang-chart at the initial stage of proceedings,

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rather Rule 60 would come into application during the course of

trial and that would certainly begin when the charge-sheet is

submitted before the court concerned and cognizance is taken

thereon, otherwise, trial cannot begin. The language used in Rule

60 is clear and unambiguous, i.e., “CERTIFYING THE

CERTIFIED COPY OF THE CHARGE-SHEET and “NOT

CERTIFYING THE CHARGE-SHEET ITSELF”. Therefore,

Rule 60 would come into play at that stage when gang-chart

alongwith certified copy issued by the competent Court is

already filed before the Trial Court and the police officer is

called upon during the course of trial to certify that certified

copy of the charge-sheet. Hence, it cannot be said that Rule 60

would empower the police officer to certify the charge-sheet

itself during the course of investigation so as to satisfy the

requirement of Rule 10 which casts mandatory duty upon police

officer to compulsorily attach the certified copy of the charge-

sheet alongwith gang-chart.

19. Here, certain provisions of Cr.P.C. also need a glance.

Though, in common parlance, we frequently use the word

“charge-sheet”, surprisingly, Cr.P.C. does not define “charge-

sheet”. What it defines in relation to completion of investigation

is a “police report” as per Section 2(r) in the following words:-

“(r) “police report” means a report forwarded by a police

officer to a Magistrate under sub-section (2) of Section

173;”

20. Therefore, a police report is referable to the one which

the Incharge of the police station forwards to a Magistrate after

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completion of investigation. Section 173(2) of Cr.P.C. needs

reference here and is reproduced as below:-

Section 173

(1)…………………

(2)(i) As soon as it is completed, the officer-in-charge of

the police station shall forward to a Magistrate empowered

to take cognizance of the offence on a police report, a

report in the form prescribed by the State Government,

stating -.....................................

21. The police report can either be in the form of a charge-

sheet containing the conclusion drawn by the Investigating

Officer that the accused persons should be tried after being

summoned before the court or it can be a final report disclosing

that accusation made through FIR has been found to be false

giving rise to no occasion for trial of accused persons. In both

the cases it will be a “police report” only.

22. Insofar as the word “charge” is concerned, Chapter

XVII Cr.P.C. is titled as “THE CHARGE” and contains various

provisions in relation to framing of charge, its alteration etc. etc.

Therefore, the word “charge” has been used in relation to

competence of the court concerned for trial of offenders and has

nothing to do with the power of police officers in relation to

accusation. As a matter of fact, the police officers have no right

to frame the charge which is the sole prerogative of the Trial

Court concerned after it takes cognizance of the police report

submitted under Section 173(2) Cr.P.C.

23. When aforesaid is the situation, then what would be the

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meaning and significance of words “charge sheet” used in Rule

10 of the Rules. Since the words “charge sheet” have not been

defined either in the Act of 1986 or the Rules of 2021 or even in

Cr.P.C., these words used in common parlance would be

understood as they are but certainly in the light of same words

used in the Act of 1986.

24. The Court has got the occasion to go through certain

judgements pronounced by esteemed co-ordinate benches of our

Court where necessity of attaching certified copy of the charge-

sheet has been discussed. In the judgements dated 31.05.2023,

02.05.2023 and 28.08.2023 passed in Criminal Misc. Writ

Petition Nos.5202 of 2023 (Manoj Maurya vs. State of U.P. and

another), 19638 of 2022 (Binni Lala @ Vinod Kumar Jain vs.

State of U.P. and 3 others) and 12808 of 2023 (Rahul Saxena @

Bhola/Bholu vs. State of U.P. and 3 others) respectively, the Co-

ordinate Benches of this Court have dealt with Section 76 of the

Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act of

1872’) and have observed that it is not the requirement of law,

particularly, Rule 10 of the Rules of 2021, to attach certified

copy of the charge-sheet obtained from the court concerned,

rather the certification made by the public officer in whose

custody of public document remains, would suffice, provided

requirements of Section 76 are satisfied. For a ready reference,

Section 76 of the Act of 1872 needs reproduction as follows:-

“76. Certified copies of public documents.- Every public

officer having the custody of a public document, which

any person has a right to inspect, shall give that person on

demand a copy of it on payment of the legal fees therefore,

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together with a certificate written at the foot of such copy

that it is a true copy of such document or part thereof, as

the case may be, and such certificate shall be dated and

subscribed by such officer with his name and his official

title, and shall be sealed, whenever such officer is

authorized by law to make use of a seal; and such copies

so certified shall be called certified copies.”

Explanation.-Any officer who, by the ordinary course of

official duty, is authorized to deliver such copies, shall be

deemed to have the custody of such documents within the

meaning of this section.

25. The Court is conscious of the fact that Section 76 finds

place in Chapter V of the Act of 1872 which is titled as “OF

DOCUMENTARY EVIDENCE”. The Chapter contains

provisions in relation to proof of documents and contents thereof

by way of primary and secondary evidence, their admissibility,

rules as to notice to produce, attestation, admission and many

other related provisions. The Scheme of the Act of 1872 is clear

and, therefore, Section 76 has to be read in relation to the

proceedings during the course of trial before the court of law

where stage of proving or disproving a document reaches and it

cannot be associated with the stage when trial has not even

commenced in cases arising out of Act of 1986. Therefore,

Section 76 cannot be associated with preparation or approval of

gang-chart where charge-sheet has not been filed in the base

cases, subject to contingencies mentioned in Rule 22 discussed

later. Rule 2(b) of the Rules 2021 defines “base cases” as the

cases on the basis of which a gang-chart has been prepared with

the intention of taking action against the gang under the Act.

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26. We may emphasize that since the issue involved in this

case is as to whether without completion of investigation and

without submission of charge-sheet by the police in the base

case(s), a person can be made an accused under the Act of 1986,

it is also necessary to refer to Rule 22 of the Rules of 2021, as

quoted below:-

“22. Criminal history not mandatory and sections of the Act

can be imposed in the course of investigation – (1) A single

act/omission will also constitute an offence under the Act,

and First Information Report may 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.

(2) The Act may also come into force on a single prosecution

in certain class of cases, such as -

if it appears that the gang has committed a single

offence mentioned in Sections 302, 376D, 395, 396 or

397 of the Penal Code out of the offences mentioned in

sub-clause (i) of clause (b) of Section 2 of the Act or

sub-clauses (ii), (iii), (v), (vii), (x), (xii), (xiv), (xv),

(xvii), (xviii), (xix), (xx) or (xxi) of clause (b) of

Section 2 of the Act, which is presently under

investigation, and the offence under this Act is being

proved by collected evidence, then along with the

criminal act under consideration, the gang-chart should

also 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,

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the charge-sheet can be sent to the Special Court

constituted under the Act.”

27. It is apparently clear from Rule 22(1) that a single

act/omission can also constitute an offence under the Act of

1986 and First Information Report may be registered on the

basis of a single case. This Rule has already been interpreted by

the Supreme Court in the case of Shraddha Gupta vs. State of

U.P. decided on 26.04.2022 in Criminal Appeal No.569-570 of

2022 reported in 2022 SCCOnline SC 514 and, hence, needs no

further deliberation. However, sub-rule (2) of Rule 22 is of quite

significance in the present case which, infact, is an exception to

Rule 5(3)(c) in the sense that whereas Rule 5(3)(c) provides that

the gang-chart shall not be approved without completion of

investigation of the base case(s), sub-rule (2) of Rule 22

mentions various sub-sections of Section 2 of the Act of 1986

and the sub-rule implies that after the gang has committed a

single offence mentioned under Sections 302, 376D, 395, 396 or

397 of the Penal Code out of the offences mentioned in sub-

clause (i) of clause (b) of Section 2 of the Act or sub-clauses (ii),

(iii), (v), (vii), (x), (xii), (xiv), (xv), (xvii), (xviii), (xix), (xx) or

(xxi) of clause (b) of Section 2 of the Act, which offences are

under investigation, then alongwith criminal act under

consideration, the gang-chart should be approved by the

concerned Commissioner of Police/District Magistrate involved

in investigation of the said offence and the provisions of the Act

can be imposed while investigating both the offences altogether

in accordance with the provisions of the Act. Rule 22(2) of the

Rules of 2021, as such, carves out an exception to the

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requirement of completion of investigation before the gang-chart

is approved, however, it can be done only when the First

Information Report in the base case(s) is registered under any of

the penal provisions mentioned under sub-rule (2) of Rule 22,

otherwise, Rule 5(3)(c) shall, generally, be read with Rule 10

and understood in absolute terms and before approving the gang-

chart, not only the investigation must be completed but a charge-

sheet also must be submitted before the Competent Court and

the certified copy must have been issued by the said Court so as

to compulsorily form part of the gang-chart as per Rule 10(1).

28. In the present case, the base case covered by Case

Crime No. 417 of 2023 is not covered by Rule 22(2) of the Rules

2021 in the sense that it is not an offence mentioned in sections

302, 376D, 395, 396 or 397 of the Penal Code out of the

offences mentioned in sub-clause (i) of clause (b) of Section 2 of

the Act or sub-clauses (ii), (iii), (v), (vii), (x), (xii), (xiv), (xv),

(xvii), (xviii), (xix), (xx) or (xxi) of clause (b) of Section 2 of the

Act, and, therefore, the present case is not the one which falls

within exception to the general Rules 5 and 10 and, hence, in the

facts of the present case, the Court is of the considered view that

without completion of investigation and without forwarding the

charge-sheet in Case Crime No.417 of 2023 to the Court, the

gang-chart, could not be approved.

29. Now coming to the aspect as to whether in view of

Rules 5(3)(a), 8(3), 16 and 17, the preparation/approval of the

gang-chart in the present case, is according to law, the Court has

21

carefully gone through the record of proceedings and it finds

that in every document including gang-chart, its format, charts

and tables describing criminal history etc., the factum of

submission of charge-sheet No. 410 of 2023 on 11.11.2023 in

the Court and pendency of proceedings before the Judicial

Magistrate has been written down and described. Surprisingly,

the current status column too contains the same disclosure in all

the tables and charts filed alongwith personal affidavit of the

Station House Officer.

30. During the course of arguments, learned State Counsel

could not dispute the submission advanced on behalf of the

petitioners that the Sub-Inspector of Police Station Bilari

himself, on 07.01.2024, submitted an application before the

Judicial Magistrate that charge-sheet No.410 of 2023 had been

forwarded on 11.11.2023 to the Circle Officer, Bilari. The said

report forms part of the record of the Court of Judicial

Magistrate where the CASE NUMBER has not been mentioned

which is normally allotted after cognizance is taken on the

charge sheet, but the report has been issued by mentioning

CRIME NUMBER and the relevant sections only. This, in itself,

suggests that charge-sheet has not been filed in the Court of

Judicial Magistrate and the trial is not pending based thereupon

and, therefore, the information entered into in the gang-chart and

other charts that proceedings are pending before the Judicial

Magistrate and that charge-sheet has been forwarded to the

Magistrate is incorrect and incomplete disclosure of true and

factual position. Therefore, preparation of gang-chart in the

present case is clearly in teeth of Rule 8 (2) of the Rules.

22

31. The Court has already discussed that unconfirmed or

false information shall not be entered in the gang-chart as

mandated under Rule 8(2) and now this Court is inclined to

make the officers understand the seriousness of furnishing false

and unconfirmed information as, in such event, the statutory

responsibility is fastened on the Incharge of police station

concerned as per sub-rules (4) and (5) of Rule 8 reproduced as

such:-

“(4) The responsibility of recording the correct and true

information shall lie on the concerned Incharge of Police Station/

Station House Officer/Inspector.

(5) On discovering an adverse situation, the Incharge of Police

Station/Station House Officer/Inspector shall be held liable for

negligence under departmental and criminal proceedings.”

32. As far as compliance of Rules 16 and 17 is concerned,

though the State has made attempts to support the gang-chart and

the approval granted to it by referring to the documents annexed

to the personal affidavit, a careful scrutiny of the documents

would reveal that the Nodal Officer/Regional Officer Moradabad

forwarded the gang chart for approval on 27.12.2023, the

Superintendent of Police, Rural, Moradabad forwarded the gang-

chart for approval on 28.12.2023 and the joint meeting of Senior

Superintendent of Police and District Magistrate, Moradabad has

been shown to have been held on 01.01.2024. It is not clear from

the gang-chart as to on what date the Senior Superintendent of

Police forwarded the gang-chart for approval and as to on which

date the District Magistrate approved the gang-chart. Clearly and

visibly the columns and signatures of Senior Superintendent of

23

Police and District Magistrate are “undated”. No minutes of joint

meeting have been annexed. It is not clear as to where was this

joint meeting held and who were present therein. In any case,

there are chances of doing only paper work as regards holding a

joint meeting without actually holding it. In that event, the entire

scheme of the Rules would frustrate.

33. Rule 17 of the Rules casts a mandatory duty on the

Competent Authority to exercise its own independent mind

while forwarding the gang-chart, however, the dates referred to

hereinabove i.e. 27.12.2023, 28.12.2023 and 01.01.2024 and the

‘undated signatures’ made by the District Magistrate and the

Senior Superintendent of Police, particularly considering the fact

that charge-sheet has not at all been submitted in the case

covered by Case Crime No.417 of 2023, are sufficient to

convince this Court that gang-chart has been hurriedly prepared,

forwarded and approved without application of independent

mind and, therefore, there is a clear violation of Rule 17 of the

Rules of 2021.

34. At this stage, it is apposite to refer to a latest circular

dated 21.01.2024 whereby the State Government has directed the

Deputy Inspector General, U.P., Lucknow, Additional

Commissioners of Police, Prosecution Directorate, Lucknow, all

the Commissioners, all the District Magistrates, all the Police

Commissioners, Senior Superintendents of Police,

Superintendents of Police in the State of U.P. to ensure strict

compliance of Rules 2021 by referring to Rules 5(3), 8, 16, 17,

20 and 26, 36 and 64. The Circular, surprisingly, does not refer

24

to Rule 10 which casts a compulsory and mandatory duty of

attaching certified copy of the charge-sheet alongwith the gang-

chart. This Court has already interpreted the said provision in

detail, hereinabove.

35. The Court also finds that significance of Rule 64 of the

Rules of 2021 contained in Chapter 10 has seldom been noticed

by the highest police officials as well as the District Magistrate.

For the sake of convenience, Rule 64 is reproduced as follows:-

64. Supervision by three-tier Committees. -The following

three-tier Committees shall be constituted in relation to the

regular supervision and review of any proceedings under the

Act and the disposal and management of their ancillary

matters:

(1) District Level Supervision Committee-

(a) Every quarter, the action taken under this Act,

including the proceedings under Section 14 of the Act

and the cases decided, shall be compulsorily reviewed by

the District Level Supervision Committee;

(b) Essentially, the police officers who have filed a case

under the Act and who are doing the investigation will

be present with all the case diaries and information.

(c) The said District Level Supervision Committee will

be constituted as under:

(i) Commissioner of Police/District

Magistrate-Chairman

(ii) District Police In-charge, Senior

Superintendent of Police/ Superintendent of Police-Vice

President

(iii) Additional Superintendent of Police/Circle

Officer-Nodal Officer

25

(iv) Joint Director Prosecution-Member

Secretary

(v) Public Prosecutor of the Gangster Act-

Member;

(d) Minutes of the decisions taken and the review made

in the said District Level Supervision Committee will be

prepared by the Judicial Assistant/Confidential Assistant

and sent to the Divisional Level Supervision Committee

and the Home Department of the Government as soon as

possible with the signature of the Chairman;

(e) In addition to the above, the said Committee shall

have the authority to get the properties of any gang or

criminals investigated by any appropriate institution and

to issue all such orders so that such gangs or criminals

cannot get the benefit of any government services,

business, contracts, leases, State schemes, etc. and if

such benefit has been received by them, then the same

should be recovered. The compliance of the Witness

Protection Scheme, 2018 and the instructions related to

witness protection in force for the time being shall also

be ensured by this Committee.

(2) Divisional Level Supervision Committee-

(a) The Divisional Level Supervision Committee shall

consider the quarterly review report of the District

Level Supervision Committee and the action taken by it

under this Act, including the proceedings under Section

14 of the Act;

(b) The cases decided by the District Level Supervision

Committee will be compulsorily reviewed by the

Divisional Level Supervision Committee in every six

26

months;

(c) In the review meeting of the said Committee, the

Nodal Officer of the concerned district will necessarily

be present with relevant information;

(d) The said Divisional Level Supervision Committee

will be constituted as under:

(i) Divisional Commissioner-Chairman

(ii) Inspector General of Police/Joint

Commissioner of Police (Crime)-Vice President/ Nodal

Officer

(iii) Additional Director Prosecution-Member

Secretary

(iv) Officer of the local body of the

Divisional Headquarters (Municipal Commissioner

/Executive Officer)-Member

(v) Regional Lead Branch Manager of

National and Private Bank-Member

(vi) Senior most officer of Income Tax

Department-Member

(vii) Senior most officer of the GST/Sales

Tax Business Tax Department-Member;

(e) In addition to reviewing the criminal cases, the said

Committee will provide proper information to the

Investigating Officers regarding the activities related to

the property acquired by the gangster under the Act and

share the relevant information with all the concerned at

the divisional level;

(f) Minutes of the decisions taken and the review done

in the Divisional Level Supervision Committee will be

prepared and sent to the Home Department of the

Government as soon as possible with the signature of

27

the Chairman;

(g) In addition to the above, the said Committee shall

have the authority to get the properties of any gang or

criminals investigated by any appropriate institution

and to issue all such orders so that such gangs or

criminals cannot get the benefit of any government

services, business, contracts, leases, State schemes, etc.

and if such benefit has been received by them, the same

should be recovered. The compliance of the Witness

Protection Scheme, 2018 and the instructions related to

witness protection in force for the time being shall also

be ensured by this Committee.

(3) State Level Supervision Committee-

(a) The State Level Supervision Committee shall

supervise the Divisional Level Supervision Committee

and District Level Committees half-yearly and make

policy after considering their reports regarding

punishment of criminals and disposal of their illegal

properties in favour of the State;

(b) The State Level Supervision Committee will be

constituted at the State level to take appropriate action as

follows:

(i) Additional Chief Secretary, Home-

Chairman

(ii) Principal Secretary, Justice/Legal Adviser-

Vice President

(iii) Director General of Police-Vice President

(iv) Director General, Prosecution-Member

Secretary

(v) Head of State of National and Private

Bank-Member

28

(vi) Senior most officer of Income Tax

Department-Member

(vii) Senior most officer of GST/Sales Tax

Business Tax Department-Member;

(c) In addition to the above, the said Committee shall have

the authority to get the properties of any gang or criminals

investigated by any appropriate institution and issue all such

orders so that such gangs or criminals cannot get the benefit

of any government services, business, contracts, leases, State

schemes, etc. and if such benefit has been received by them,

the same should be recovered. The compliance of the

Witness Protection Scheme, 2018 and the instructions related

to witness protection in force for the time being shall also be

ensured by this Committee.”

36. The afore-quoted Rule 64 describes three-tier system

where the Committee, namely District Level Supervision

Committee, shall be constituted in relation to the regular

supervision and review of any proceedings under the Act and

disposal and management of their ancillary matters. The

importance of Rule 64 is that every action under the Act, right

from the beginning till end, has to be under regular supervision

and review of such Committees but what the Court finds in

almost all the cases, including the present one, that the gang-

charts are hurriedly prepared containing various infirmities and

irregularities which are altogether ignored by the members of the

said Committee and taking advantage of the technical shortfalls,

even a hard core criminal easily escapes from the stringent

action under the Act.

37. It is now necessary to give reference to certain judicial

29

pronouncements on purposive interpretation of a statute.

38. Jurisprudence of statutory interpretation has moved from

"literal interpretation" to "purposive interpretation", which

advances the purpose and object of a legislation. The Supreme

Court, in catena of judgments, has dealt with the issue of literal

interpretation vis-a-vis purposive interpretation.

39. The Apex Court, in Central India Spinning and

Weaving Manufacturing Comp. versus Municipal

Committee, Wardha, AIR 1958 SC 341, has held that it is a

recognised principle of construction that general words and

phrases, however wide and comprehensive they may be in their

literal sense, must usually be construed as being limited to the

actual objects of the Act.

40. The Supreme Court, in Girdhari Lal & Sons versus

Balbir Nath Mathur; 1986(2) SCC 237, has held that the

primary and foremost task of a Court in interpreting a statute is

to ascertain the intention of the legislature, actual or imputed.

Having ascertained the intention, the Court must then strive to so

interpret the statute as to promote and advance the object and

purpose of the enactment. For this purpose, where necessary the

Court may even depart from the rule that plain words should be

interpreted according to their plain meaning and there need no

meek and mute submission to the plainness of the language. To

avoid patent injustice, anomaly or absurdity or to avoid

invalidation of a law, the court would be well justified in

departing from the so-called golden rule of construction so as to

give effect to the object and purpose of the enactment by

30

supplementing the written word if necessary. It went to observe

that ascertainment of legislative intent is a basic rule of statutory

construction and that a rule of construction should be preferred

which advances the purpose and object of a legislation and that

though a construction, according to plain language, should

ordinarily be adopted, such a construction should not be adopted

where it leads to anomalies, injustices, or absurdities, vide K.P.

Varghese v. ITO, (1981) 4 SCC 173, State Bank of

Travancore v. Mohd. M. Khan, (1981) 4 SCC 82, Som

Prakash Rekhi v. Union of India (1981) 1 SCC 449, Ravula

Subba Rao v. CIT, AIR 1956 SC 604, Govindlal V

Agricultural Produce Market Committee, (1975) 2 SCC 482

and Babaji Kondaji v. Nasik Merchants Co-op Bank Ltd.

(1984) 2 SCC 50.

41. The Supreme Court, in Utkal Contractors & Joinery

Pvt. Ltd. versus State of Orissa; 1987 (3) SCC 279, has

observed that a statute is best understood if we know the reason

for it. The reason for a statute is the safest guide to its

interpretation. The words of a statute take their colour from the

reason for it. There are external and internal aids. The external

aids are Statement of Objects and Reasons when the Bill is

presented to Parliament, the reports of Committees which

preceded the Bill and the reports of Parliamentary Committees.

Occasional excursions into the debates of Parliament are

permitted. Internal aids are the Preamble, the scheme and the

provisions of the Act. Having discovered the reason for the

statute and so having set the sail to the wind, the interpreter may

proceed ahead. No provision in the statute and no word of the

31

statute may be construed in isolation. Every provision and every

word must be looked at generally before any provision or word

is attempted to be construed. The setting and the pattern are

important. It is again important to remember that Parliament

does not waste its breath unnecessarily. Just as Parliament is not

expected to use unnecessary expressions, Parliament is also not

expected to express itself unnecessarily. Even as Parliament does

not use any word without meaning something, Parliament does

not legislate where no legislation is called for. Parliament cannot

be assumed to legislate for the sake of legislation; nor can it be

assumed to make pointless legislation. [See-Eera (through Dr.

Manjula Krippendorf) v. State (NCT of Delhi) and Anr

2017(15) SCC 133].

42. The more stringent the Law, the less is the discretion of

the Court. Stringent laws are made for the purpose to achieve its

objectives. This being the intendment of the legislature, the duty

of the court is to see that the intention of the legislature is not

frustrated. If there is any doubt or ambiguity in the statutes, the

rule of purposive construction should be taken recourse to, to

achieve the objectives. (See Swedish Match AB & Anr.

Securities & Exchange Board, India & Anr., (2004) 11 SCC

641).

43. The Apex Court, in Reserve Bank of India Vs.

Peerless General Finance and Investment Co. Ltd. & Ors.

(1987) 1 SCC 424, held that Interpretation must depend on the

text and the context. They are the bases of interpretation. One

may well say if the text is the texture, context is what gives the

colour. Neither can be ignored. Both are important. That

32

interpretation is best which makes the textual interpretation

match the contextual. A statute is best interpreted when we know

why it was enacted. With this knowledge, the statute must be

read, first as a whole and then section by section, clause by

clause, phrase by phrase and word by word. If a statute is looked

at, in the context of its enactment, with the glasses of the statute-

maker, provided by such context, its scheme, the sections,

clauses, phrases and words may take colour and appear different

than when the statute is looked at without the glasses provided

by the context. With these glasses we must look at the Act as a

whole and discover what each section, each clause, each phrase

and each word is meant and designed to say as to fit into the

scheme of the entire Act. No part of a statute and no word of a

statute can be construed in isolation. Statutes have to be

construed so that every word has a place and everything is in its

place.

44. Same view has been reiterated in S. Gopal Reddy Vs.

State of Andhra Pradesh, (1996) 4 SCC 596, Prakash Kumar

Alias Prakash Bhutto Vs. State of Gujarat, (2005) 2 SCC

409, Anwar Hasan Khan Vs. Mohd. Shafi & Ors. (2001) 8

SCC 540, Union of India & Ors. Vs. Filip Tiago De Gama of

Vedem Vasco De Gama, (1990) 1 SCC 277, Reserve Bank of

India v. Peerless General Finance and Investment Co. Ltd.,

(1987) 1 SCC 424: (AIR 1987 SC 1023) and N. K. Jain v. C.

K. Shah (1991) 2 SCC 495: (AIR 1991 SC1289).

REFERENCE TO A LARGER BENCH

45. This Court is satisfied in the present case that

33

preparation/forwarding as well as approval of the gang-chart is

in teeth of Rules 5, 8, 10, 16 and 17 of the Rules, but since our

esteemed Co-ordinate Benches of this Court, in above-noted

judgments, have interpreted Rule 10 contrary to the view taken

by this Court in this judgment, the question on interpretation of

Rules 5, 10, 22 and 60 needs to be referred to the larger Bench.

46. As regards second limb of argument of learned counsel

for the petitioner regarding validity of an F.I.R. under section 3

of the Act only, without mentioning any other offences described

it section 2(b) thereof, learned counsel for the petitioner placed

reliance on a recent decision of this Court in Criminal Misc.

Writ Petition No.18729 of 2023 (Asim @ Hassim vs. State of

U.P. and another) decided on 02.12.2023 and reported in 2024

(1) ADJ 125(DB).

47. The Court has perused the said judgment wherein an

F.I.R. lodged under Section 3(1) of the Act of 1986 was quashed

by the Court on the ground that apart from Section 3(1) of the

Act, no corresponding provision mentioning anti-social

activities, in which the accused was allegedly involved and was

named as gangster as per one or the other sub-section of Section

2, was there in the F.I.R.

48. This Court, having gone through the Scheme of the Act

read with general penal law covered by Indian Penal Code, 1860

is of the view that First Information Report is always lodged

under the provision inflicting penalty of imprisonment and/or

fine against the accused and not under the provision where the

offence itself is defined. For example, ‘cheating’ is defined

34

under Section 415 of Indian Penal Code, 1860, whereas F.I.R. in

relation to commission of ‘offence of cheating’ is lodged under

Section 420 I.P.C. which is a penal provision. Similarly,

‘criminal breach of trust’ is defined under Section 405 but FIR is

registered under Section 406 IPC; ‘forgery’ is defined under

Section 463 IPC but F.I.R. is lodged under Section

465/467/468/471 IPC, murder is defined under Section 300 but

F.I.R. is lodged under Section 302, so on and so forth.

49. Admittedly, Section 3 is the penal provision under the

Act, 1986 in relation to the offences described under various

sub-sections of Section 2 of the Act and, hence, this Court is of

the view that it is not necessary to mention any one or the other

clause of Section 2 while registering F.I.R. under the Act of

1986, for which, mentioning of Section 3 is sufficient.

Therefore, this Court is in respectful disagreement with the

judgment of our esteemed Co-ordinate Bench in Criminal Misc.

Writ Petition No.18729 of 2023 (Asim @ Hassim vs. State of

U.P. and another) decided on 02.12.2023 and reported in 2024

(1) ADJ 125(DB) and reference on this point is also required to

be made and is being made.

50. In connection to the aforesaid, we may take aid to a

very recent decision dated 19.02.2024 pronounced by the

Hon’ble Supreme Court in Criminal Appeal Nos(s).... of 2024

(arising out of SLP (Crl.) No(s). 437 of 2023 (Farhana vs.

State of U.P. and others) connected with another case can be

taken. The Supreme Court was dealing with a case where the

accused had been exonerated/acquitted in the base case,

35

however, the acquittal was not taken note of while preparing the

gang-chart and, hence, the Supreme Court quashed the FIR and

also reversed the decision of this Court, by which, this Court had

declined quashing of the FIR by placing reliance upon

judgement in the case of Shraddha Gupta (supra) and. In

‘paragraph 13’ of the judgement in the case of Farhana (supra),

the Supreme Court observed as follows:-

“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 anti-social activities as defined

under Section 2(b).”

51. It is clear from a bare reading of paragraph 13 of the

said judgement that the prosecution would be under an

obligation to clearly state that the accused persons are being

prosecuted for any one of the offences covered by anti-social

activities as defined under Section 2(b), however, that stage

would come while framing the charge for the offence under the

Gangster Act. It is, thus, apparent that there is no such

requirement at the time of bare registration of FIR and, therefore,

mentioning Section 3 of the Act, 1860 only would suffice at that

stage.

52. Therefore, the judicial propriety demands that the

aforesaid aspects should also to be referred for being answered

by a Larger Bench.

36

53. The Registry is, accordingly, directed to place this

matter before Hon’ble the Chief Justice for constituting Larger

Bench to answer the following questions:-

(A) Whether, in the light of Rule 60 of the Uttar Pradesh

Gangster and Anti-Social Activities (Prevention) Rules, 2021 the

words “certified copy of the charge-sheet” used in Rule 10(1)

mean certified copy issued from the trial Court after submission

of police report by the Investigating Agency before the trial

Court and after the Court takes cognizance thereupon, or a

certification made on the charge sheet by the police officer

involved in investigation prior to its submission before the trial

Court is sufficient as per section 76 of the Evidence Act, 1872,

where the offences are not covered by those specified under Rule

22(2)?

(B). Whether in view of the scheme of penal law covered by

Indian Penal Code, 1860 and/or the Uttar Pradesh Gangster and

Anti-Social Activities (Prevention) Act, 1986, is it necessary at

all to mention in the F.I.R. any one or more of the offences

described under Section 2(b) of the Act?

54. Till the aforesaid questions are answered by the Larger

Bench, interim protection granted to the petitioners under the

order dated 08.02.2024 shall remain in operation.

55. Although we have referred the above-noted questions

for being answered by the Larger Bench, it is made clear that in

the peculiar facts and circumstances of the present case, the

protection granted to the petitioners or reference made to the

Larger Bench would, under no circumstances, be treated as a

judgment/order in rem so as to install any proceedings in any

37

other case pending in the State of U.P. under the Uttar Pradesh

Gangster and Anti-Social Activities (Prevention) Act, 1986

before any Authority or Court, including this Court.

Order Date:-04.03.2024

Jyotsana

(Kshitij Shailendra, J.) (Mahesh Chandra Tripathi, J.)