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Judgment
Hon’ble Siddhartha Sah, J. (Oral)
By means of this Criminal Misc. Application, under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks quashing of the summoning order dated 21.01.2021 and the charge sheet dated 09.08.2020, as well as the entire proceedings of S.S.T. No.07 of 2021, State Vs. Akash & others, pending before the court of Special Judge Gangster Act, Dehradun.
Admit.
Brief facts, as per the affidavit in support of the instant criminal misc. application and the annexures thereof, are as under:
On 01.01.2020, an F.I.R. was registered against the applicant and one co-accused, Akash, as F.I.R. No. 0002 at P.S. Doiwala, District Dehradun, under Sections 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short, “Gangster Act”), alleging that both the above-named accused had formed a gang and were indulging in anti-social activities, and that there was fear among the general public due to the acts of the accused persons.
In pursuance of the aforesaid F.I.R., the investigation ensued and culminated in the filing of a charge sheet bearing No. 01 dated 09.08.2020 in respect of the aforesaid F.I.R. On the basis of the aforesaid charge sheet, the learned Trial Court registered the case against the applicant and co-accused Akash as S.S.T. No. 07/2021 (State vs. Akash and another) under Sections 2/3 of the Gangsters Act, took cognizance, and issued summons to the accused vide order dated 21st January, 2021.
Assailing the cognizance and summoning order dated 21.01.2021, the charge sheet, and the entire proceedings of the said S.S.T. No. 07 of 2021, learned counsel for the applicant submitted that, as per the gang chart, only two cases have been shown against the applicant and the co-accused Akash as follows:
Case Crime No. 223 of 2019 under Sections 379 and 411 IPC, P.S. Dhalanwala, Dehradun.
Case Crime No. 228 of 2019 under Sections 457, 380 and 411 IPC, P.S. Dhalanwala, Dehradun.
It is further the case of the applicant that, in respect of Case Crime No. 228 of 2019 under Sections 457, 380 and 411 IPC, the applicant was tried in Criminal Case No. 1452 of 2020 (State vs. Akash Singh and another), and the learned Chief Judicial Magistrate, Dehradun, vide judgment and order dated 27.09.2020, acquitted the applicant in the above case. A certified copy of the judgment has been placed on record as Annexure No. 5 to the affidavit in support of the criminal miscellaneous application.
It is further the case of the applicant that, in the other case also, namely, Case Crime No. 223 of 2019 under Sections 379 and 411 IPC, the applicant has been acquitted on the basis of compounding vide judgment and order dated 12.03.2022. A copy of the judgment and order dated 12.03.2022 has been placed on record as Annexure No. 6 to the affidavit in support of the criminal miscellaneous application.
Thus, it is argued on behalf of the applicant that, as such, in the only two cases registered against the applicant, on the basis of which he has been implicated under the Gangsters and Anti-Social Activities (Prevention) Act, 1986, the applicant has been acquitted by the competent court of law. Therefore, the instant proceedings against the applicant under Section 2/3 of the Gangster Act are an abuse of the process of law.
He would further submit that the co-accused Akash in the present case also filed a criminal miscellaneous application under Section 482 Cr.P.C., registered as C-482 No. 1902 of 2022 (Akash vs. State of Uttarakhand), before this Court. The Co-ordinate Bench of this Court was pleased to allow the said application and quash the proceedings of S.S.T. No. 07 of 2021 (State vs. Akash and another) qua the co-accused Akash vide judgment and order dated 2nd May, 2023, a copy whereof is placed on record as Annexure No. 7 to the affidavit in support of the criminal miscellaneous application.
It is thus submitted on behalf of the applicant that it is clear from the record of the present case, as well as from the other evidence on record, that the prosecution implicated the applicant in the present case based on the above-mentioned two criminal cases (Case Crime No. 223 of 2019 and Case Crime No. 228 of 2019), and in both cases, the applicant has already been acquitted by the competent court of law. Thus, the basis of the present F.I.R. against the applicant does not survive any longer, and continuation of the proceedings of S.S.T. No. 07 of 2021 under Section 2/3 of the Gangster Act against the applicant is a futile exercise. Once the very basis of initiation of proceedings under the Gangster Act has already been decided by the competent court of law, resulting in acquittal, the entire trial or proceedings under the Gangster Act will be nothing but a wastage of the Trial Court's time.
It is also argued on behalf of the applicant by learned counsel that proceedings under the Gangster Act are not independent proceedings. Implication of the applicant under the Gangster Act was solely because of the two cases registered against him, in which he has been acquitted. In view of the said facts and circumstances, the proceedings under the Gangster Act based on the set of cases are liable to be quashed.
The Court has also perused the order dated 02nd May, 2023 passed by the Co-ordinate Bench of this Court in the case of co-accused Akash. In the said order dated 02nd May, 2023, the Co-ordinate Bench considered that the offence under Section 2/3 of the Gangster Act would not be made out because, in the two offences shown in the gang chart, the accused had been acquitted. In this regard, reference was made to the judgment rendered by the Allahabad High Court in the case of Sartaj vs. State of U.P., reported in 2020 111 AllCriC51. It was held therein that, while exercising power under Section 482 Cr.P.C., once an accused has been acquitted of the offences on the basis of which Section 2/3 of the Gangster Act was attracted, no offence under Section 2/3 of the Gangster Act can be said to be made out against him. The relevant reasoning given therein by the Allahabad High Court in paragraphs 6 and 8, which are extracted herein for ready reference:-
“6.Learned counsel for the applicant submits that the very basis of initiation of F.I.R. under Gangster Act was the statements recorded under Section 161 Cr.P.C. of case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act, Police Station Kotwali, District Meerut. Learned counsel submitted that said basis for initiation of F.I.R. under Gangster Act has been disbelieved by the trial Court as the applicant has been acquitted in the aforesaid crime, which acquittal order has not been challenged as yet. It is further contended that once very basis of initiation of Gangster's Act proceedings diminished, the entire trial procedure and rigmarole of proceedings of criminal trial under that Act will be nothing but only wastage of time of Court. The learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Pritam Singh and another vs. State of Punjab, AIR, 1956 Supreme Court 415 in support of his contention that once the revisionist was acquitted by the competent court for the case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act, his trial under the provisions of Gangster Act would not be justified since the basis of implication in the case under the Gangsters Act was the case registered against the applicant in case crime no.166 of 2000, under Section 384/506 I.P.C. read with Section 7 Criminal Law Amendment Act. His contention is that his trial under the Gangster's Act would require trial regarding the same offence which was not found to have been proved by the trial court in the earlier case. He has relied upon the following observations of the Apex Court in the above mentioned case:-
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial".
7
8.Reference to the Apex Court judgment in the case of Manipur Administration, Manipur vs. Thokchon Veere Singh, AIR 1965 (SC) 87 has also been made wherein paragraph 6 are as follows:-
Before referring to the decision of this Court in Pritam Singh v. State of Punjab(1) it would be convenient to refer to and put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section is as follows:- "403
(1)A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under s. 236, or for which he might have been convicted under section 237.
(2)A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1).
(3)A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4)A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5)Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
Explanation-The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." Section 26 of the General Clauses Act which is referred to in s. 403 enacts:
"26.Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." We might also, in this connection, refer to Art. 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads:
"20(2). No person shall be prosecuted and punished for the same offence more than once."
As has been pointed out by this Court in State of Bombay v. S. L. Apte, both in the case of Art. 20(2) of the Constitution as well as s. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.
Based on the aforesaid judgment of the Allahabad High Court, the Co-ordinate Bench of this Court allowed C-482 No. 1902 of 2022 vide order dated 02nd May, 2023 and quashed the proceedings of Criminal Case No. 7 of 2021 (State vs. Akash) qua the applicant therein.
Learned DAG for the State, Mr. S.S. Chauhan, does not dispute that the case of the applicant is covered by the judgment rendered by the Co-ordinate Bench in the case of Akash in C-482 No. 1902 of 2022.
After hearing the learned counsel for the parties and perusing the entire record, along with the order dated 02nd May, 2023 passed by the Co-ordinate Bench in C-482 No. 1902 of 2022, it is amply clear that the applicant, Mohit Ubhan, has been acquitted in Case Crime No. 223 of 2019 as well as Case Crime No. 228 of 2019, which formed the basis for the initiation of proceedings under Section 2/3 of the Gangster Act.
Since it is not disputed that the case of the applicant is covered by the order dated 02nd May, 2023 passed by the Co-ordinate Bench of this Court in C-482 No. 1902 of 2022, the present criminal miscellaneous application under Section 482 Cr.P.C. also deserves to be allowed on the aforesaid grounds.
Accordingly, the summoning order dated 21.01.2021 and the charge sheet dated 09.08.2020, as well as the entire proceedings of S.S.T. No. 07 of 2021, State Vs. Akash & others, pending before the Court of Special Judge, Gangster Act, Dehradun, are hereby quashed qua the applicant.
Pending applications, if any, also stand disposed of.
The instant criminal misc. application under Section 482 Cr.P.C. is accordingly allowed.