Allahabad High Court: A writ petition filed for quashing of an FIR registered against five accused under Section 3 of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 (‘the Act of 1986’), allegingthat incorrect details of the criminal cases have been furnished against the accused in the gang-chart attached to the police report and that the same has been passed by various authorities without application of mind and that the due procedure was not followed as established under the Act of 1986 and the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021 (‘Rules of 2021’) for the filing of the charge sheet.The division bench of Kshitij Shailendra and Mahesh Chandra Tripathi, JJ. viewed that there is no requirement of mentioning any one or the other offences mentioned in subclause (b) of Section 2 at the time of bare registration of FIR and, therefore, mentioning Section 3 of the Act, 1860 only would suffice at that stage.However, citing judicial propriety, it referred important issues to the larger bench, while stating that interim protection granted to the petitioners under the order dated 08-02-2024 shall remain in operation
Issues and Analysis:
Whether 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 FIR?
The Court took note of the relevant provisions of the Act of 1986 and the Rules of 2021 and said that if certain words are described in the Act itself, the meaning assigned to them would be understood as it is but, in any other eventuality, aid of Penal Code, 1860 and Code of Criminal Procedure, 1973 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 IPC and CrPC.
The Court explained the requirement of attaching certified copy of the charge-sheet as per Rule 10.
After taking note of Rule 60, the Court said that it 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 trial itself. Therefore, proving certified copy of the chargesheet has nothing to do with preparation or approval of the gang-chart at the initial stage of proceedings, rather Rule 60 would come into application during 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.
Therefore, the Court said that Rule 60 would come into play at that stage when gang-chart along with 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 along with gang-chart.
The Court added that a 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.
Concerning the meaning and significance of words “charge-sheet” used in Rule 10 of the Rules, the Court said that since the words “charge-sheet” have not been defined either in the Act of 1986 or the Rules of 2021 or even in CrPC., 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.
The Court said that 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, as per which a single act/omission can also constitute an offence under the Act of 1986 and an FIR may be registered based on a single case.
After referring to Rule 17, which casts a mandatory duty on the Competent Authority to exercise its own independent mind while forwarding the gang-chart.,the Court said 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.
The Court added that the base case is not covered by Rule 22(2) of the Rules 2021 in the sense that it is not an offence mentioned in Sections 302, 376-D, 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, that the present case is not the one which falls within exception to the general Rules 5 and 10. Hence, the Court viewed that without completion of investigation and without forwarding the charge sheet to the Court, the gang-chart, could not be approved.
The Court remarked that importance of Rule 64 is that every action under the Act, right from the beginning till the end, has to be under regular supervision and review of the District Level Supervision Committee, however, 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.
The Court held that the rules shall be interpreted keeping in mind the objective of the statute. In case of any doubt or ambiguity in the statutes, the rule of purposive construction should be followed to achieve the objectives of the statute.
Whether the registration of the FIR mentioning offences only under Section 3 and none under Section 2(b) of the Act of 1986 would vitiate the FIR?
The Court held that it is not necessary to mention all the applicable sections and offences while registering an FIR under the Act of 1986. The Bench further explained that the Prosecution would be under an obligation to clearly state what the accused are being prosecuted for by mentioning all or 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 Act of 1986. The Court said that there is no such requirement at the time of registration of the FIR.
However, the following issueswere referred to a larger bench:
-
Whether it is necessary to mention any one or more of the offences in the FIR as described under Section 2(b) of the Act of 1986 under the scheme of the penal laws.
-
Whether a certified copy mentioned in Rule 10 (1) being read in light of Rule 60 of the Rules of 2021 mean a certified copy issued from the Trial Court after submission of the Police Report or a certification made on the charge-sheet by the police officer prior to its submission before the Trial Court for its meaning under section 76 of the Evidence Act, 1872.
Thus, the Court said that interim protection granted to the petitioners under the order dated 08-02-2024 will remain in operation, till the aforesaid questions are answered by the Larger Bench.
[Dharmendra v. State of UP, 2024 SCC OnLine All 634, Order dated 04-03-2024]
Advocates who appeared in this case :
Counsel for Petitioner: Advocate Mohit Singh, Advocate Anil Kumar
Counsel for Respondent : Government Advocate
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
