2026 INSC 894 Page 1 of 46

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.3979 of 2026

(Arising out of SLP (Crl) No.16398 of 2025)

Shiv Pratap Singh Alias Chinu

…. Appellant(s)

Versus

State of U.P & Ors.

…. Respondent(s)

With

Criminal Appeal No.3980 of 2026

(Arising out of SLP (Crl) No.1997 of 2026)

Himanshu Srivastava

…. Appellant(s)

Versus

State of U.P & Ors.

…. Respondent(s)

J U D G M E N T

“Those who abjure violence can do so only because others

are committing violence on their behalf.”

~ George Orwell

Leave granted.

2. Both the above appeals challenge the proceedings

initiated under the Uttar Pradesh Gangsters and Anti-Social

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Activities (Prevention) Act, 1986

1

and the Uttar Pradesh

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

1

.

3. Though the facts leading to the proceedings are distinct

and different, the issue agitated is the very same; the validity of

the proceedings under the U.P. Act and hence, we heard the

matters together and this common judgment disposes of the

matters jointly.

Special Leave Petition (Crl) No.16398 of 2025

4. The appellant herein is a practicing Advocate who was

involved actively in a dispute with respect to the elections to the

Bar Association, Fatehgarh, Farrukhabad, a brief narration of

which is necessary to understand how it culminated in the

proceedings under the Act and the Rules.

5. On a complaint raised by one individual regarding the

conduct of elections to the Bar Association, Fatehgarh, the Bar

Council of Uttar Pradesh issued a communication dated

07.09.2018 directing the elections to be conducted in

accordance with the rules and the applicable law. On allegations

raised regarding the conduct of election, five Advocates were

debarred from practicing for a period of 10 years, including the

1

Hereinafter referred to as ‘the U.P. Act’ and ‘the U.P. Rules’

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appellant, by proceedings dated 09.02.2019. The Bar

Association, Fatehgarh, challenged the communication dated

07.09.2018 issued by the Bar Council of Uttar Pradesh before the

High Court. The High Court vide Annexure P-3 judgment dated

11.07.2019, struck it down as being without jurisdiction following

an earlier judgment of a Division Bench of that High Court, based

on which Complaint No.90 of 2018 was dismissed, observing

only that the elections to the Bar Association, Fatehgarh, be

conducted as per the Byelaws, evident from Annexure P-4.

6. Again, proceedings were taken by the Disciplinary

Committee of the Bar Council of Uttar Pradesh and an order was

issued on 16.07.2023 debarring the appellant and one Sri

Sanjeev Paria from practicing in the Bar for a period of 15 years,

with a further direction to lodge a complaint before the

Superintendent of Police, Farrukhabad, with a like request to the

District Judge/Chief Judicial Magistrate, Farrukhabad. The

Elders Committee of the Bar was also requested to conduct the

election. The appellant alleges that he was not heard in the

matter and he had just appeared before the Disciplinary

Committee representing the other Advocate, Sri Sanjeev Paria.

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7. Pursuant to the complaint made by the Disciplinary

Committee, an FIR was registered in the Police Station of District

Farrukhabad as FIR No.377 of 2023 under various provisions of

the Indian Penal Code; a copy of which is produced as Annexure

P-6. Later to this, the direction issued by the Bar Council of Uttar

Pradesh dated 16.07.2023 was stayed by the High Court as per

Annexure P-7. Subsequently, the Bar Council of India by

Annexure P-8 dated 31.08.2024 declared the orders of the Bar

Council of Uttar Pradesh a nullity.

8. The Police then registered FIR No.41 of 2024 under the Act,

along with two others arrayed as accused. FIR No.41 of 2024 as is

produced, with a translated copy produced as Annexure P-10, is

dated 13.02.2024, enclosing a Gang Chart of even date prepared

under the U.P. Rules. The appellant was shown as Accused No.3

and one Sanjeev Paria and Dr. Anupam Dubey as Accused Nos.1

& 2.

9. A reading of the First Information Statement (FIS) shows

general allegations without any specifics; that Sanjeev Paria is

the gang leader and the two other members together as a

criminal gang commit offences under Chapter XVI, XVII and XXII

of the IPC and induce fear and terror among the general public

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which makes their free movement, to be against the interest of

the general public. They are said to be indulging in criminal

activities, anti-social activities, embezzling government money

and so on. The investigation undertaken is for an offence levelled

under Section 2 of the U.P. Act. A chargesheet was filed again

under Section 2; the translated copy of which is produced as

Annexure P-14. The appellant had moved the High Court with

two separate applications, one of which stayed the proceedings

in Case Crime No.248 of 2024 arising from FIR No.377 of 2023

and the other resulting in Annexure P-13-Order injuncting the

respondent from taking any coercive action under FIR No.41 of

2024. The chargesheet was filed on 12.02.2025 against which an

application was filed under Section 482 of Code of Criminal

Procedure

2

, 1973, rejected by the impugned judgment in one of

the above appeals.

10. We make it clear that we are not concerned with the

disputes with the Bar Council of Uttar Pradesh or the inter se

dispute in the Bar Association of Fatehgarh against which an

appropriate civil proceeding is taken by the appellant herein,

which as we see from the records, went in favour of the appellant.

2

In short ‘CrPC’

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The thread of arguments against FIR No. 41 of 2024, with which

alone we are concerned at this stage, is the validity of the

proceedings initiated under the Act and the Rules based merely

on a Gang Chart which would result in peremptory conviction

followed with a sentence as stipulated in Section 3 of the U.P. Act.

11. The respondent-State has filed a counter-affidavit and

vigorously argued for rejection of the appeal since the appellant

is a known criminal, and his antecedents being suspect and

highly objectionable, these were considered, culminating in a

valid Gang Chart prepared in accordance with the Rules. It is

pointed out from the FIR produced as Annexure P-6 that the

allegation against the three accused arrayed therein was also of

disrupting the security system of the Court Council, bringing

ammunition inside the Court Council, causing an explosion and

shooting with illegal firearms, endangering the lives of judicial

officers, employees, advocates, litigants etc. The three

Advocates have been debarred from practicing. Immediately

we have to notice, though, the allegations are very serious, there

is no indication of any complaint having been raised by the

District Judge or any Presiding Officer of the Courts in the

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premises of which such ‘horrific’ (sic) acts were alleged to have

been perpetrated.

12. We cannot but also observe that the counter-affidavit seeks

to support the debarring of the accused arrayed and the

proceedings taken by the Bar Council of Uttar Pradesh, which as

is clear from the above narration of facts had been interfered

with by the jurisdictional High Court and the Bar Council of India.

Special Leave Petition (Crl) No.1997 of 2026

13. The appellant herein is also an Advocate, and he is

aggrieved with the proceedings initiated under the U.P. Act and

the U.P. Rules, against himself, his brother; the 3

rd

respondent

herein and his father; the 4

th

respondent herein. The allegation

is of various crimes registered against the appellant and the

party respondents which led to the proceedings under the U.P.

Act and the U.P. Rules.

14. The appellant and the party respondents together filed an

application under Section 482 of the CrPC before the High Court

seeking to quash Charge Sheet No.1 dated 05.12.2023 filed in

Sessions Case No.73 of 2024 arising out of Case Crime No.740 of

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2022 under Sections 2/3 of the U.P. Act registered at Police

Station Loni Border, District Ghaziabad Rural.

15. The appellant herein was applicant No.3 before the High

Court. It was found that the proceedings against applicant Nos.1

and 2 (respondent Nos.3 and 4), challenged by them is pending

consideration, with a stay in operation, by a coordinate bench of

the High Court. Hence, it was found that no proceedings could

be taken against them as of now. Insofar as the appellant, who

was applicant No.3, there was Case Crime No.61 of 2022 pending

against him under Sections 322, 323, 504, 506 and 452 of IPC read

with Sections 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989.

16. It is based on the above FIR that FIR No.740 dated

30.09.2022 was registered under Sections 2/3 of the U.P. Act

registered at Police Station Loni Border, District-Rural

(Commissionerate Ghaziabad). The FIRs narrate the various

crimes registered against the accused arrayed therein and

speaks of Santosh Srivastava being the leader of the gang,

consisting of his two sons, one the appellant here, and another

person. Gang Chart annexed to the FIR has not been produced

along with the records.

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17. In the above case also, the State Government has filed a

counter-affidavit and learned Advocate on Record has argued

vehemently against the relief claimed by the appellant herein. In

the counter-affidavit, attempt is made to bring about the specific

allegations and the provisions under which the charges were

levelled, which we are not concerned with. If crimes are

registered under the IPC and other penal enactments, trial will

have to proceed in accordance with the respective laws and our

decision in the present case would not govern the same at all.

We are only concerned in both the above cases, with the specific

FIR registered under Sections 2/3 of the U.P. Act; the first of

which contains the definition clause and Section 3 deals with the

punishment. The offences as listed out from clause (i) to (xxv) of

Section 2(b); the definition clause, defining ‘Gang’, are

punishable under various penal enactments. We are, here,

concerned only with the absence of an ‘offence’, as coming out

from the subject enactment being Uttar Pradesh Gangsters and

Anti-Social Activities (Prevention) Act, 1986.

The Acts and the Rules

18. The U.P. Act as the preamble suggests, intends prevention

of and proliferation of gangsters and anti-social activities, as also

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matters connected therewith and incidental thereto, a laudable

object indeed. Section 2 is the definition clause which, in

addition to the other definitions, defines ‘Gang’ & ‘Gangsters’.

Sub-sections (b) & (c) of Section 2 are extracted hereinbelow: -

“2. In this Act, —

(a) “Code” means the Code of Criminal Procedure, 1973;

(b) “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, or

(ii) distilling or manufacturing or storing or

transporting or importing or exporting or selling

or distributing any liquor, or intoxicating or

dangerous drugs, or other intoxicants or

narcotics or cultivating any plant, in

contravention of any of the provisions of the U. P.

Excise Act, 1910 or the Narcotic Drugs and

Psychotropic Substances Act, 1985 or any other

law for the time being in force, or

(iii) occupying or taking possession of immovable

property otherwise than in accordance with law,

or setting-up false claims, for title or possession

of immoveable property whether in himself or

any other person, or

(iv) preventing or attempting to prevent any public

servant or any witness from discharging his

lawful duties, or

(v) offences punishable under the Suppression of

Immoral Traffic in Women and Girls Act, 1956, or

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(vi) offences punishable under section 3 of the Public

Gambling Act, 1867, or

(vii) preventing any person from offering bids in

auction lawfully conducted, or tender, lawfully

invited, by or on behalf of any Government

department, local body or public or private

undertaking, for any lease or rights or supply of

goods or work to be done, or

(viii) preventing or disturbing the smooth running by

any person of his lawful business, profession,

trade or employment or any other lawful activity

connected therewith, or

(ix) offences punishable under section 171-E of the

Indian Penal Code, or in preventing or

obstructing any public election being lawfully

held, by physically preventing the voter from

exercising his electoral rights, or

(x) inciting others to resort to violence to disturb

communal harmony, or

(xi) creating panic, alarm or terror in public, or

(xii) terrorising or assaulting employees or owners or

occupiers of public or private undertaking or

factories and causing mischief in respect of their

properties, or

(xiii) inducing or attempting to induce any person to

go to foreign countries on false representation

that any employment, trade or profession shall

be provided to him in such foreign country, or

(xiv) kidnapping or abducting any person with intent

to extort ransom, or

(xv) diverting or otherwise preventing any aircraft or

public transport vehicle from following its

scheduled course ;

(xvi) offences punishable under the Regulation of

Money Lending Act, 1976 ;

(xvii) illegally transporting and/or smuggling of cattle

and indulging in acts in contravention of the

provisions in the Prevention of Cow Slaughter

Act, 1955 and the Prevention of Cruelty to

Animals Act, 1960 ;

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(xviii) human trafficking for purposes of commercial

exploitation, bonded labour, child labour,

sexual exploitation, organ removing and

trafficking, beggary and the like activities;

(xix) offences punishable under the Unlawful

Activities (Prevention) Act, 1966;

(xx) printing, transporting and circulating of fake

Indian currency notes;

(xxi) involving in production, sale and distribution of

spurious drugs;

(xxii) involving in manufacture, sale and transportation

of arms and ammunition in contravention of

sections 5, 7 and 12 of the Arms Act, 1959;

(xxiii) felling or killing for economic gains, smuggling

of products in contravention of the Indian Forest

Act, 1927 and the Wildlife Protection Act, 1972;

(xxiv) offences punishable under the Entertainment

and Betting Tax Act, 1979;

(xxv) indulging in crimes that impact security of State,

public order and even tempo of life.

(c) “gangster” means a member or leader or organizer of

a gang and includes any person who abets or assists in

the activities of a gang enumerated in clause (b), whether

before or after the commission of such activities or

harbors any person who has indulged in such activities;

xxx xxx xxx.”

19. Section 3 refers to penalty which is also extracted

hereinbelow: -

“3. (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

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term which shall not be less than three years and also with

fine which shall not be less than five thousand rupees.

(2) 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 or through others) or

abstains from taking lawful measures or intentionally

avoids to carry out the directions of any court or of his

superior 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.”

20. Section 4 speaks of the special rules of evidence by which

additional aspects, regarding prior specified criminal

antecedents, could be reckoned by the Special Court constituted

to try the cases under the Act, notwithstanding the provisions of

the CrPC and the Indian Evidence Act, 1872. Section 5 enables

constitution of Special Courts and appointment of a Presiding

Judge in consultation with the Chief Justice of the High Court.

Section 6 empowers the Special Courts to sit at any place other

than the ordinary place of sitting, even on a certification made

by the Public Prosecutor, but after hearing the accused. Section

7 dealing with the jurisdiction of the Special Courts, is a non

obstante clause restricting trial of ‘every offence punishable

under any provision of this Act or any rule made thereunder’ to be

exclusively tried by the Special Court.

Page 14 of 46

21. We specifically emphasize and extract the above words

from the provision under Section 7, since ‘any offence punishable

under this Act’ has also been referred to in Sections 8, 10, 11, 12

and 13 of the Act. Section 8 empowers the Special Courts to try

any other offence with which the accused, under any other law is

charged, to be tried along with the offence punishable under the

U.P. Act. Section 9 confers power on the Government to appoint

Public Prosecutors; Additional PP or Special PP too, and

prescribes the eligibility to be so appointed. Section 10 permits

cognizance to be taken by a Special Court, of any offence triable

by it, without a committal proceeding, even on a complaint of

facts received by it or a police report, and enables a summary

trial in cases where the punishment does not exceed three years

imprisonment or with fine or both. It also bestows the Special

Courts with the powers; of a Sessions Court; to convert a

summary trial to a regular one and tender a pardon i n

accordance with the CrPC. Section 11 is with respect to in-

camera proceedings and keeping secret the identity of the

witnesses, which we will deal with a bit later. As of now, we

highlight the employment of the words: ‘an offence under this Act’

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only to emphasize that there is no action or omission penalized

as an offence under the subject Act.

22. The other provisions except Section 19 and Section 23 are

not relevant for our purposes. Section 19 also is a non obstante

clause deeming every offence punishable under the Act or the

Rules made thereunder to be a cognizable offence within the

meaning of Section 2(c) of the CrPC and enhancing the period

for default bail as provided under the CrPC. Sub-section (4) also

stipulates that no person arraigned under the Act shall be

released on bail or on bond, unless the Public Prosecutor is

given opportunity to oppose and on such opposition, the Court

is satisfied that there are reasonable grounds for believing that

the accused is not guilty of such an offence and is not likely to

commit any offence while on bail. Section 23 enables the State

Government to frame rules to carry out the purposes of this Act

which provides that any contravention of any provisions of the

Rules shall also be made punishable with imprisonment for a

term of 6 months with or without fine.

23. Purportedly, in exercise of Section 23, the Rules of 2021

have been brought out wherein the condition of criminal liability

with respect to gangs have been fixed under Rule 3. Rule 3

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speaks of the offences mentioned under clauses (i) to (xxv) of

Section 2(b) of the Act to be punishable under the Act, only if

they disturb public order or causes violence or threat or display

of violence, intimidation, coercion or otherwise, either singly or

collectively, for the purpose of obtaining any unfair advantage;

the advantage being worldly, economic, material, pecuniary or

otherwise. The term ‘worldly’ being defined under the Rules as

audacious acts which are illegal and aimed at seeking temporal

gratification. Rule 4 speaks of a person being liable even if he is

not at the scene of the incident or directly participating in the

incident, if the offence is committed together with his passive

involvement.

24. Chapter 3 prescribes the procedure for preparing the

gang chart which has to be done at the grass root level by the In-

charge of a Police Station/Station House Officer/Inspector,

forwarded with the recommendation of the Additional

Superintendent of Police (ASP), but approved only after due

decision is taken in the joint meeting of the Commissioner of

Police/District Magistrate/Senior Superintendent of Police/

Superintendent of Police. While preparing the gang chart, it is

provided by Rule 6 that the specific provision, the violation of

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which is alleged under sub-section (b) of Section 2 of the Act has

to be mentioned. The other provisions in Chapter 2 provides for,

restriction in; including the charges mentioned in an earlier

gang chart (R.7), stating unconfirmed or false information (R.8)

and requires support by records of; additional aspects as

coming out from Section 4 of the Act (R.9) & also of base cases

(R.10), the present status of the witnesses and the accused (R.11)

and so on and so forth. A procedure is clearly prescribed as to

how the gang chart is to be forwarded under Rule 16.

25. Chapter IV deals with the sanction of investigation and

prosecution. Rule 22 provides that a single prosecution in certain

class of cases, which are enumerated thereunder; all under the

Penal Code, out of the sub-clauses mentioned under the various

clauses of Section 2(b), if committed as a single offence, on which

investigation is pending, to reckon that for inclusion in the Gang

Chart, the it ought to be approved by the Investigating Officer

(I.O) of that single crime too. The provision seems to indicate that

even if there is pending only one crime, which is also in the stage

of investigation then the rigor of the Act can be applied to the

accused, if the I.O in that case approves the Gang Chart.

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26. We cannot but observe that the U.P. Act and the U.P. Rules

proceed on the basis that an offence is specifically provided for

in the Act; which is absent, as we noticed. But for the definition

clause, defining ‘gang’ and ‘gangster’, there is no offence insofar

as the membership in the gang or acting in cohort with a gang,

either singly or together.

27. In Ashok Kumar Dixit v. State of U.P. and Another

3, a Full

Bench of the Allahabad High Court upheld the Act and negatived

the arguments addressed on many facets. The arguments raised

against the U.P. Act were: - (i) no offence having been created,

(ii) an attempt to punish the mere status of a person, (iii)

legislative competence, (iv) in-camera trial impinging upon the

right to an open trial, (v) the identity of the witnesses being kept

secret, (vi) a speedy trial compromising the reasonable

opportunity to defend, (vii) the extended term for default bail

having an impact on the pre-trial liberty of an individual and

(viii) the sustainability of the enactment on the definition of

public order and the established tenets of criminal

jurisprudence.

3

AIR 1987 All 235

Page 19 of 46

28. With regard to sub-section (2) of Section 11, enabling the

Court, on the application of a witness or by the Public Prosecutor,

to keep the identity and address of the witness secret, the

learned Judges found it unnecessary to pronounce on its

constitutionality. The categorical stand taken by the learned

Senior Counsel and the learned Chief Counsel appearing on

behalf of the State that indeed the accused would be provided

with the identity of the witness was recorded, holding that thus

the accused would not be deprived of the very right to defend

themselves. Insofar as Section 19(2), extending the period of

default bail under the CrPC, the challenge was that it has the

effect of keeping, the one accused under the Act, in jail without

bail and without closing the investigation, resulting in a situation

akin to preventive detention, without the safeguards available

thereunder. The challenge was brushed aside, on the premise

that the impugned Act was designed to deal with a class of crime

entirely distinct from the ordinary offences, that too against

persons involved being such, as against whom, it will be difficult

to collect evidence. This reasoning, we have to immediately

observe gives short shrift to the fundamental principle of

criminal jurisprudence that there shall be no conviction without

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evidence; enabling anyone to be punished with a period of

imprisonment. The larger period of remand in that

circumstances cannot be held to be ultra vires was the finding;

difficult to subscribe to. On the other aspects, the Act was

upheld.

29. We reiterate that we are not dealing with a challenge on

the constitutionality of the enactment, hence we would not

examine the U.P. Act in that perspective but however on the facts

coming out from the two cases before us, we have to look at two

issues. The foremost being, the total absence of creation of a

crime, which is mandatory in a penal statute; going by the Latin

principle ‘nulla poena sine lege’, which means ‘no punishment

without law’ or ‘without an offence in law’, which is reflected in the

definition of ‘offence’ as coming out in the General Clauses Act,

‘any act or omission made punishable by any law for the time being

in force’. Equally important is the question as to the punishment

being imposed on a status determined of a person that too on the

ipse dixit of the administrative officers and police personnel by

preparation of a Gang Chart under the Rules, not specifically

provided under the statute.

Page 21 of 46

30. The Allahabad High Court dealt with this ground raised of

a person being punished on the mere status, without there being

any actus reus. In fact, the Full Bench dwelt upon the definition

of the term ‘crime’ with reference to the formal definition coined

by Professor Glanville Williams (1955) 8 Current Legal

Problems, 107, to hold that “the greatest fools can ask questions

that the wisest of men cannot answer” (sic). We cannot but

observe, with respect, that there is always a tendency among the

wisest of men to label a question; to which they find no answer

or a difficult or unpalatable one, as foolish and the one who

raised it, a fool. We hence, endeavoured to find an answer to the

two questions we have posed above, by posing it to the learned

Counsel appearing for the State. We did so, at the risk of being

called foolhardy and our only solace is that the very same

questions were raised before the Full Bench of the Allahabad

High Court, at that juncture, but by wise men, eminent lawyers

of considerable repute. The learned Counsel appearing for the

State neither could give an answer at the time of arguments nor

attempted to do so in the written submissions placed before us.

31. Insofar as the principle of nulla poena sine lege which finds

reflection in the definition of ‘offence’ in the General Clauses Act,

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the petitioners relied on Article 20 which was declared; to have

taken within its broad import, prohibition of convictions and

sentence under ex post fact laws, in Rao Shiv Bahadur Singh and

Another v. State of Vindhya Pradesh

4. This argument too was

brushed aside on the premise that Section 2 of the Act of 1986

encompasses only those social activities enumerated in Section

2 (b) (i) to (xv) [as it then existed which now stands as (i) to (xxv)]

and no one can be punished in respect of any anti-social

activities indulged in, prior to the U.P. Act of 1986. On the issue

raised of actus reus, holding that actus reus and mens rea were

analytical tools, placing reliance on a quote; a question was

posed: ‘Can it be useful to exclude the conduct from the definition

of the basic concepts of crime’. The answer provided, to negative

the challenge on these counts, was the avowed object of the Act;

the need to check anti-social activities and cope with the menace

of gangsters, to which end the U.P. Act was enacted. The said

thread of justification running through the entire decision, we

confess, but with profound respect to the learned Judges, we are

unable to subscribe to.

4

(1953) 2 SCC 111

Page 23 of 46

32. The Full Bench of the Allahabad High Court took note of the

pernicious consequences that arises from the Act, but, however,

sought to sustain it drawing a distinction between habitual

criminals of desperate character and habitual criminals not of a

desperate character; collection of evidence against the later of

whom would be difficult. It was noticed that the provisions of the

Act could be used as a weapon to wreak vengeance or harass or

intimidate innocent citizens or to settle scores on political or

other fronts. However, this observation only resulted in a caution

to the prosecution that they should always bear in mind that they

are obliged to bring home the guilt of the accused. It was also

held that the provision for appeal, ensuring judicial review of an

action proceeded with in sheer bad faith out of malice and by

reason of political vendetta, would suffice. The contention that a

mere status was punished was brushed aside on the finding that

it was not the status but the act which is made punishable. It was

also justified on the ground that activities of gangsters are

offences under the Act since they pose grave threat to the even

tempo of society and therefore, call for sterner and more

deterrent punishment and speedier trial and early booking.

Page 24 of 46

33. S.A. Venkataraman v. Union of India and Anr.

5 though, not

in an identical context could be relied on to understand what an

‘offence’ means in criminal jurisprudence. Therein a

Constitution Bench was considering a petition under Article 32

of the Constitution, praying for a certiorari of the criminal

proceedings initiated against the petitioner by the Special

Judge, Sessions Court, Delhi for offences under the Indian Penal

Code and the Prevention of Corruption Act. The petitioner was a

Member of the Civil Services, employed as a Secretary to the

Government of India, when imputation of misbehaviour was

raised against him. In the public inquiry carried out under the

Public Servants (Inquiries) Act, 1850, a Former Chief Justice of

the Calcutta High Court was appointed as Commissioner under

that Act to conduct an inquiry and report to the Government his

opinion on the articles of charges formulated against the

petitioner.

34. The Commissioner after carrying out a full-fledged inquiry

against the charges drawn up under six heads with various sub-

heads, found four under the various sub-heads to be proved,

which opinion was accepted by the President and a show cause

5

(1954) 1 SCC 586

Page 25 of 46

notice was issued. Considering the representation filed, the

President after consultation with the Union Public Service

Commission imposed the penalty of dismissal on 17.09.1953. On

23.02.1954, a chargesheet was submitted before the Special

Judge under the IPC & the PC Act, the legality of which was

challenged on the ground that it infringes upon the rights of the

petitioner under Article 20(2) of the Constitution. Dilating upon

the principle enshrined in Article 20(2) reliance was placed on

the decision in Maqbool Hussain v. State of Bombay

6 which

held that for application of Article 20, the prosecution and the

punishment of a person must be, in the nature of criminal

proceeding, before a Court of law or Judicial Tribunal and not

before a Tribunal which entertains a departmental or

administrative inquiry.

35. This Court found that the charges levelled though identical,

to that under the Public Servants Act, despite the Commissioner

appointed being a Judicial Tribunal, who adjudicated on the

charges judicially, upon evidence recorded under oath with the

prosecution being conducted by a Prosecutor appointed,

eventually the Commissioner did not have the power to impose

6

(1953) 1 SCC 736

Page 26 of 46

a punishment but could only record his finding and forward the

report to the Government. The Government under Section 22 of

the Act was entitled to pass orders within its authority and

despite the Commissioner being invested with some of the

powers of a Court, it cannot necessarily be concluded that the

inquiry initiated and concluded amounts to prosecution and

punishment for an offence as contemplated in Article 20(2) of the

Constitution. The background of the provisions relating to

inquiry into the conduct of the public servants were examined to

hold that the inquiry conducted under the Public Servants Act

was merely to help the Government to come to a definite

conclusion as to the misbehaviour of the public servant and thus

enable it to determine provisionally the punishment which

should be imposed, prior to the reasonable opportunity under

Article 311(2) of the Constitution.

36. It was held so in paragraph 17 as under: -

17. It may be pointed out that the words

“prosecution” and “punishment” have no fixed

connotation and they are susceptible of both a wider

and a narrower meaning; but in Article 20(2) both

these words have been used with reference to an

“offence” and the word “offence” has to be taken in

Page 27 of 46

the sense in which it is used in the General Clauses Act

as meaning “an act or omission made punishable by

any law for the time being in force”. It follows that the

prosecution must be in reference to the law which

creates the offence and the punishment must also be

in accordance with what that law prescribes. The acts

alleged to have been committed by the petitioner in

the present case and on the basis of which the charges

have been framed against him do come within the

definition of “offences” described in Sections 161 and

165 of the Penal Code and Section 5(2) of the

Prevention of Corruption Act. The Public Servants

(Inquiries) Act does not itself create any offence nor

does it provide any punishment for it. Rule 49 of the

Civil Services Rules mentioned above merely speaks

of imposing certain penalties upon public servants for

good and sufficient reasons. The Rule does not

mention any particular offence and obviously can

create none...

[Underlining by us for emphasis]

37. What assumes relevance for our purpose in the instant

cases is the definition of ‘offence’ as employed in the General

Clauses Act which is “an act or omission made punishable by any

law for the time being in force” (sic). Hence, the penal law under

which the criminal proceeding is initiated should create an

Page 28 of 46

offence and the punishment should also be in accordance with

what that law prescribes. Looking at the enactment, which is up

for scrutiny, we cannot find any offence having been created.

The State seems to proceed on the premise that Section 2 (b) of

the Act creates an offence, which is merely a definition clause.

As we noticed, the definition refers to a group of persons acting

either singly or collectively using violence, threat, display of

violence, intimidation or coercion to disturb public order or gain

undue temporal worldly, economic, material, pecuniary or other

advantage by indulging in the anti-social activities which are

referred to in clauses (i) to (xxv) of Section 2(b). We cannot but

notice that the offences mentioned therein specifically refers to

provisions under penal laws either enacted by the Legislature of

the State or the Union Parliament, some of which are; the Indian

Penal Code, the Narcotic Drugs and Psychotropic Substances

Act, Suppression of Immoral Traffic in Women and Girls Act, the

Public Gambling Act and so on, specifically mentioned in the

various sub-clauses. Insofar as sub-clauses (iii), (iv), (vii), (viii),

(x) to (xv), (xx), (xxi) and (xxv) those are acts which could be

prosecuted under the provisions of the IPC.

Page 29 of 46

38. The indulgence in any of the activities under clauses (i) to

(xxv) would hence lead to initiation of a criminal prosecution

under that penal law which makes that act or omission, an

offence, which is independent of the U.P. Act. The U.P. Act

merely provides for a punishment insofar as involvement in any

of the activities specified under sub-clause (i) to (xxv) which is

already penalised under a different penal law; without creating

a distinct offence under the subject Act. The U.P. Act is said to

have been enacted as an alternative to a measure of preventive

detention, but with a mere semblance of a trial before the Special

Court which cannot at all go beyond the Gang Chart as

prescribed under the Rules, the preparation of which and the

inclusion of such members of a gang, indirectly having been

made an offence in the Rules and not under the Act.

39. The preparation of a Gang Chart for the purpose of

punishing a person for involvement in any of the activities

specified in the sub-clauses under Section 2 (b), dehors the

prosecution and punishment as contemplated under the

respective penal laws, would be beyond the power conferred

under Section 23 of the U.P. Act. It would result in the same

offence being punished under the two laws, one enactment

Page 30 of 46

merely presuming the status of the accused; indulging in a

criminal act punishable under the other law, to punish again for

the very same act. Pertinently, this also enables the investigating

agency to delay investigation and filing of charge sheet,

extending the pre-trial incarceration to an year. There being no

offence created under the U.P. Act, there is no question of a

prescription under the U.P. Rules laying down a procedure by

which an offence is created, and punishment is guaranteed in

accordance with Section 3 of the Act.

40. As we observed, at the time of arguments we queried on

this specific aspect of absence of an offence, to which the

response was to the clauses defining ‘gang’ and ‘gangster’. We

were also informed that this Court has considered the validity of

the enactment multiple times. After going through the decisions,

we are of the opinion that the constitutional validity of the

enactment is still at large, as has been noticed in Dharmendra

Kirthal v. State of Uttar Pradesh and Anr.

7. The learned Judges

observed at the outset itself, twice the constitutionality of the U.P.

Gangsters Act was referred to a Constitution Bench. The

referred matter was posted along with the cases pending

7

(2013) 8 SCC 368

Page 31 of 46

consideration of the vires of the Terrorists Affected Areas

(Special Courts) Act, 1984. When that matter was listed before

the Bench in Kartar Singh v. State of Punjab

8, the Constitution

Bench eventually forbore from considering the constitutional

validity of the Gangsters Act, since the hearing was concluded

only in the matters pertaining to certain other Acts. Again, in

Subhash Yadav v. State of U.P. and Anr.

9, this Court noticed that

the petitioner therein had been discharged and one another

accused acquitted, which made the determination of the

constitutional validity of the Gangsters Act merely of academic

interest.

41. Even in Dharmendra Kirthal

7, the only issue considered

was the constitutional validity of Section 12 of the Act, which

provided for the trial under the Act to have precedence over the

trial of any other case against the accused in any other court till

conclusion of which the other case should be kept in abeyance.

Yet again, the Act was considered in Shraddha Gupta v. State of

Uttar Pradesh and Others

10 only insofar as a single crime being

sufficient to invoke the Act. Therein the commission of a single

8

(1994) 3 SCC 569

9

(2000) 10 SCC 145

10

(2022) 19 SCC 57

Page 32 of 46

crime led to the appellant being proceeded with under the Act,

particularly Sections 2(b) and 2(c) read with Section 3. It was

held that even a single crime committed by a gang or gangster

is sufficient to bring in the provisions of the Act and the definition

clause does not engulf plurality of offences, to enable invocation

of the provisions of the Act. This Court specifically referred to

the Maharashtra Control of Organised Crime Act, 1999 and

Gujarat Control of Terrorism and Organised Crime Act, 2015 and

found the U.P. Act to have no provision in it, as available under

the Maharashtra Act and Gujarat Act to enable invocation only

on more than one offence, on which FIR has been registered or

charge-sheet is filed. This particular question with respect to

requirement of an offence, did not come up for consideration and

it remains res integra insofar as this Court is concerned, though

negatived by a Full Bench of the High Court.

42. The Maharashtra Act & the Gujarat Act defines continuing

unlawful activities (practice), economic offences and organized

crime. Those enactments also provide, under Section 3, that

whoever commits a terrorist act or organised crime, (sub-section

1), conspires or attempts to commit or advocates, abets or

knowingly facilitates such commission (sub-section 2) or

Page 33 of 46

intentionally harbours or conceal or attempts to harbour or

conceal any person who has committed such act, commits an

offence under the respective enactments, which also separately

provides the punishment for such commission of offence. The

said enactments also provide for speedy trial and the trial of any

other offence connected with the offence under the Act as is

provided in the U.P. Act.

43. Mahipal Singh v. Central Bureau of Investigation and

Anr.

11

, considering the definitions of ‘continuing unlawful activity’

and ‘organised crime’ under the Maharashtra Act held that, to

impose punishment for the offence of organised crime under

Section 3 of that Act, the accused is required to be involved in

continuing unlawful activity which inter alia provides that more

than one charge-sheets are to be filed before a competent court

within the preceding period of ten years, and the court had taken

cognizance of such offence. However, what is obviously absent

in the U.P. Act is a provision determining the offence as one

created under the Act. After defining gang, which includes

commission of the offences listed under sub-clauses (i) to (xxv)

and defining gangster as a member or leader or organiser of a

11

(2014) 11 SCC 282

Page 34 of 46

gang, the punishment is prescribed for a gangster without an

offence being created by statute; which makes the penal act,

stillborn.

44. Article 20 is ingrained in judicial minds but none trained in

law has enough of its resonance of double jeopardy, hence we

extract the same; though not in direct application but still has a

bearing considering the point arising of an offence not in

existence being tried to award punishment provided in a penal

law :

20. Protection in respect of conviction for

offences. - (1) No person shall be convicted of any

offence except for violation of a law in force at the

time of the commission of the act charged as an

offence, nor be subjected to a penalty greater than

that which might have been inflicted under the law

in force at the time of the commission of the offence.

(2) No person shall be prosecuted and

punished for the same offence more than once.

(3) No person accused of any offence shall be

compelled to be a witness against himself.

45. Keshavan Madhava Menon v. State of Bombay

12

, held that

every statute is prima facie prospective unless it is expressly or

by necessary implication made to have retrospective operation.

Applying this rule of interpretation, the language in Article 13(1)

12

1951 SCC Online SC 3

Page 35 of 46

of the Constitution was read as indicating no intention to give it

retrospective operation. Therefore, the voidness of the existing

law was limited to the future exercise of the fundamental rights

and it does not obliterate the entire operation of the inconsistent

laws, or wipe them out altogether from the statute book, for to do

so will be to give them retrospective effect, was the finding

(Paras 13 & 14). The prosecutions initiated before the

fundamental rights came into operation were permitted to be

continued, despite a prosecution against a like action, after the

Constitution came into force could be resisted as due exercise of

fundamental rights.

46. In Rao Shiv Bahadur Singh and Anr.

4, the offences alleged

were under an Ordinance, enacted long after the commission,

but given retrospective effect from a prior date. In consideration

was, the proper construction of Article 20, and whether, the

offences for which the appellants were convicted were already

constituted as an offence in the State of Vindhya Pradesh. The

phrase “law in force” used in Article 20 was held to relate not to

a law “deemed” to be in force, but the law factually in operation

at the time or what may be called, the then existing law.

Otherwise the whole purpose of Article 20 would be defeated in

Page 36 of 46

its application even to ex-post facto laws passed after the

Constitution. Finding that the acts alleged were offences under a

criminal law in existence at the time of commission; and that it

was within the legislative competence, though charged under

the Ordinance, the objection raised under Article 20, to the

convictions and sentences were held unsustainable.

47. Soni Devrajbhai Babubhai v. State of Gujarat and Ors.

13

affirmed the view of the High Court that the respondents cannot

be tried and punished for the offence provided in Section 304-B

of the Penal Code, 1860 which was a new offence created,

subsequent to the commission of the offence. The argument that

Section 304-B does not create a new offence, but is a mere rule

of evidence was held untenable, since the rule of evidence to

prove dowry death was incorporated, simultaneously as Section

113-B in the Indian Evidence Act.

48. Mahipal Singh

11 held that the ingredients of the criminal

offence must exist on the date of the Act and later events cannot

supplant the earlier Act with criminality. ‘It is trite that to bring an

accused within the mischief of the penal provision, ingredients of

the offence have to be satisfied on the date the offence was

13

(1991) 4 SCC 298

Page 37 of 46

committed. Article 20(1) of the Constitution of India permits

conviction of a person for an offence for violation of law in force at

the time of commission of the act charged as an offence’ (sic)

(para-14).

49. Union of India and Anr. v. Ganpati Dealcom Private

Limited

14 reiterated that retroactive criminal liability is

impermissible. A punitive confiscation cannot be given

retrospective effect by labelling it, civil or procedure.

50. Another Constitution Bench in Central Bureau of

Investigation v. R.R. Kishore

15 reiterated that the first limb of

Article 20(1) prohibits conviction of any offence, only if there is

violation of a law in force at the time of commission of the alleged

act and the second limb prohibits infliction of a greater penalty

than that which exists under the law in force. It was held so:

38. … The Constitution Bench of this Court in Rao

Shiv Bahadur Singh v. State of Vindhya

Pradesh [Rao Shiv Bahadur Singh v. State of

Vindhya Pradesh, (1953) 2 SCC 111 : 1953 SCR

1188] , highlighted the principle underlying the

prohibition by relying upon judgment of Willes, J.

in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1

at pp. 23 and 25] and of the United States Supreme

Court in Calder v. Bull [Calder v. Bull, 1 L Ed 648 at

14

(2023) 3 SCC 315

15

(2023) 15 SCC 339

Page 38 of 46

p. 649 : 3 Dall 386 : 3 US 386 (1798)] , to hold that it

would be highly unjust, unfair and in violation of

human rights to punish a person under the ex post

facto law for acts or omissions that were not an

offence when committed.

40. The aforesaid rationale and principles of

interpretation equally apply to the second part of

clause (1) of Article 20, which states that a person

can only be subjected to penalties prescribed

under the law at the time when the offence for which

he is charged was committed. Any additional or

higher penalty prescribed by any law after the

offence was committed cannot be imposed or

inflicted on him. The clause does not prohibit

substitution of the penalty or sentence which is not

higher or greater than the previous one or

modification of rigours of criminal law. [ See T.

Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : 1983 SCC

(Cri) 143 and Pratap Singh v. State of Jharkhand,

(2005) 3 SCC 551 : 2005 SCC (Cri) 742. The latter

judgment refers to several judgments.]

51. The principles that can be culled out from the above

decisions are as follows:

i) A later statute cannot make a previously innocent act

criminal

ii) A later statute cannot increase the punishment for an

already committed offence.

iii) A later procedural change may apply to pending

matters if it does not create a new offence or a new

punitive exposure.

Page 39 of 46

iv) If the legislature clearly indicates prospectivity, courts

give effect to that, but if it seeks retrospectivity in

criminal matters, Article 20(1) blocks it.

52. Article 20(1) encapsulates the principle of “nullum crimen

nulla poena sine lege”, (No crime or punishment can exist

without a penal law); there can be no punishment without an

offence in law. As we found, the Act of 1986 does not create a

crime/offence and it merely defines the status of a person

indulging in a crime, specified in the definition clause, as a

‘gangster’ going by the definition of ‘gang’ and ‘gangster’

provided respectively under sub-sections (b) and (c) of Section

2. The status is also determined not by a procedure in the

enactment but a prescription made in the Rules. The power to

frame Rules is found from the Act, in Section 23, which enables

the State Government to make rules for carrying out the

purposes of this Act and to provide any contravention of the

Rules to be punishable with a term of imprisonment not

exceeding 6 months, with or without fine, not exceeding

Rs.1,000/-. The Rules provided for a Gang Chart to be prepared

by the police, recommended through its hierarchy and

approved in a joint meeting of the higher authorities of the Police

Page 40 of 46

and the head of the District Administration. The preparation of

the Gang Chart and the involvement in a crime, as specified

under the clauses of Section 2(b) determines the status of a

person, as a gangster, for which punishment is prescribed, as we

time and again observed in this very same judgment; without an

offence being created.

53. The Rules thus go beyond the powers conferred under the

Statute and the determination of the status as found from the

definition clause of the Statute, without any guidelines in the

Statute itself. The determination of a status as coming out from

the Statute will have to be from the provisions of the Statute itself

and otherwise it would be unbridled and unfettered power

conferred on the executive government. The menace of criminal

gangs is to be curbed, but the end does not justify the means

especially in enacting a penal law, interfering with the liberty of

citizens. Ganpati Dealcom Private Limited

14 held, the mere fact

that the object of the statute is to promote welfare activities or to

eradicate a grave social evil, by itself is not decisive of the

question as to whether the element of a guilty mind is excluded

from the ingredients of an offence.

Page 41 of 46

54. A ‘gangster’ is defined under the Act and the

determination of who a gangster is, for the purpose of

punishment, is as prescribed in the Rules, left to the ipsi dixit of

the Executive. The creation of crime, or to make an act or

omission subject to penal consequences as an offence, is

essentially a legislative function and it cannot be thrown away

and left to sprout in the thickets of subordinate legislation. As we

noticed, the provisions of the Act could lead to a detention of the

accused without trial for long, which is akin to a statute enjoining

preventive detention. Though preventive detention has been

held to be permissible even in the teeth of Article 21, the same

is hedged with safeguards, which are held to be sacrosanct and

even a minor procedural violation would entail release of the

detenu. The safeguards in preventive detention are numerous,

since it is the subjective satisfaction of the Administration and the

Police that leads to a detention, the period in which such

detention continues being the exclusive premise of the State

Government, who also has the authority to release the detenu at

any point of time. The period provided in which such detention

order has to be forwarded to the State Government; the materials

to be supplied to the detenu; the right of representation to the

Page 42 of 46

various authorities, at every stage, as granted to the detenu; the

reference to an Advisory Board constituted by statute and the

decision to be arrived there at within a time frame, mitigates and

erases to an extent the rigour & malice of subjectivity, which

subjectivity pervades a preventive detention order. The subject

enactment, the U.P. Act not only permits detention for a period

without anything more than the inclusion in a Gang Chart but also

enables a trial and punishment on the basis of the very same

Gang Chart, in addition to the pre-trial incarceration, but without

an offence being created by the Act itself. It is akin to the English

proverb: ‘Give a dog a bad name and hang him’.

55. The consideration of continuation of preventive detention,

abound in technicalities and scrupulous compliance of

procedures, within the time frames statutorily stipulated with

strict compliance of the safeguards, especially since the

detention is on a subjective satisfaction made by the

administrative authorities, though approved by an Advisory

Board which cannot supplant the subjective opinion of the

detaining authority. Though, a subjective opinion is arrived at in

ordering a preventive detention it should be supported with

substantive material which should also be provided to the

Page 43 of 46

detenu within the time provided in the statute. In preventive

detention, the procedure sheds the cloak of a handmaiden and

assumes the form of a thumb rule.

56. Here, we have to observe again, with reference to

preventive detention statutes, that the safeguards available

therein are not made applicable in the present case. The

justification seems to be that there is a proper trial conducted

before the Special Court constituted, which is presided over by

a Judicial Officer. However, in the context of the mere status

being punished, which is determined by the administrative and

police authorities by the preparation of a gang chart, nothing

remains to be considered by the Judicial Officer but to punish

him, even if he is acquitted of the predicate offence for reason of

the status determination of a gangster, on the ground only of

being accused of an offence as coming out from Clauses (i) to

(xxv) of Section 2(b). The end result of a trial under the U.P. Act

is a foregone conclusion, a statutory imprimatur to punish.

57. Placed in juxtaposition with a preventive detention statute,

the U.P. Act fails to satisfy the judicial conscience. The trial being

constituted before a Judicial Officer, wherein the predicate

offence is also tried along with the status of the accused; i.e.: of a

Page 44 of 46

gangster, is grossly inadequate, since on determination of status,

mandatory imposition of punishment follows. However

compelling and threatening the social menace, any penal

enactment to curb that, it cannot lead to arbitrary and capricious

actions against the one, alleged with the commission of an

offence. The mere allegation of an offence under Clauses (i) to

(xxv) of Section 2(b) can motivate the preparation of a gang chart

which can lead to the arrest of a citizen and his remand which

could be continued for one year without closing the

investigation. If there are more than one offence; separate

incidents, then definitely they will have to be tried separately

and acquittal in one or both, will not absolve the punishment as

coming out from the U.P. Act. There is no safeguard against

vindictive and malicious action being taken against; ‘the

innocent, the righteous, the virtuous, a whistleblower or plainly

put, a thorn in the flesh’ (quoted from Thankam v. State of Kerala

and Ors.

16

in the context of preventive detention).

58. As we noticed the U.P. Act is stillborn and the proceedings

initiated under it cannot survive. Both the appeals hereinabove

are allowed and the proceedings impugned in the respective

16

2018 SCC OnLine Ker: 4927

Page 45 of 46

appeals, being Charge Sheet No. 1 of 2025 (Annexure P-14 in

Crl. A. @ SLP (Crl) No.16398 of 2025) arising from FIR No. 41 of

2024 registered at Fategarh Kotwali and Sessions Case No.73 of

2024 arising out of ‘Charge Sheet-Case Crime No.01 of 2023 and

FIR No.740 of 2022’ (respectively Annexures P8 & P3 in Crl. A. @

SLP No. 1997 of 2026 registered at Police Station Loni Border,

District Ghaziabad Rural, both under Section 2/3 of the U.P. Act

of 1986 shall stand quashed and set aside. The appellants, if in

custody, shall be released forthwith, if not required in any other

case. If already on bail, bail bonds executed shall remain

cancelled.

59. Before we leave the matter, we take a cue from the quote

of George Orwell, we extracted at the outset, to find that the

enactment under scrutiny on the pretext of adjuring violence, is

in fact perpetuating it on un-suspecting citizens. We make it

clear that we have not gone into the aspect of constitutionality as

argued before the Full Bench of the Allahabad High Court, which

were negated by that Court. We have found the Act to be

stillborn, since there is no crime created under the Act and this

would not in any manner affect the charges levelled under the

other penal laws, which has to proceed on the lines demarcated

Page 46 of 46

in the CrPC and the respective penal statute, which makes the

objectionable act, an offence under law. We also make it clear

that we have not upheld the Gujarat Act or the Maharashtra Act

referred to by us and the attempt was only to draw a distinction

from these; of the creation of an offence under those Acts being

totally absent in the U.P. Act. We may also not be mistaken as

having approved the Full Bench of the Allahabad High Court and

or upheld the negation of all the contentions raised against the

Act, which would be left open for consideration, especially since

we have only held the Act to be stillborn on the provisions as

existing now.

60. The appeals are allowed.

61. Pending application(s), if any, shall also stand disposed of.

.………………………… …... J.

(J. B. PARDIWALA)

..………….…………………. J.

(K. VINOD CHANDRAN )

NEW DELHI;

AUGUST 20, 2026.