Shraddha Gupta vs The State Of Uttar Pradesh

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 569-570 OF 2022

Shraddha Gupta …Appellant

Versus

The State of Uttar Pradesh and Others …Respondents

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated

27.09.2019 passed by the High Court of Judicature at Allahabad in

Criminal Miscellaneous Writ Petition No. 21964 of 2019 and the

subsequent order dated 10.11.2020 passed in Criminal Miscellaneous

Review Application No. 2/2019, the original accused, Shraddha Gupta,

against whom an FIR has been filed under Section 2/3 of the Uttar Signature Not Verified

Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 Digitally signed by R Natarajan Date: 2022.04.26 17:19:03 IST Reason: 1 (hereinafter referred to as the ‘Gangsters Act, 1986’), has filed the

present appeals.

2. The facts leading to the present appeals in nutshell are as under:

That a written report was made by respondent no.4 herein (original

informant) on 24.05.2016 to the effect that her sister and her family

members had previous enmity with the accused persons, namely, (1)

Shravan Kumar (husband of the appellant herein), (2) Guddu @

Sudhanshu, (3) Munna @ Brajendranth Sharma, (4) Kamal Sharma and

(5) Bhure. That on 23.5.2016, her sister Kumari Sadhna Sharma, In-

charge, DGC(Crl.) in the Court of the District Judge, Badaun, had gone

to the Court on her scooty to pursue the cases on behalf of the

Government. Bhure and others had a hearing date in the Court of

District Judge, Badaun for appearance. At about 5:30 p.m. her sister was

returning from Badaun to Ujhani, sitting on the rear seat of the scooty

being driven by her servant Bihari. When the scooty reached near Balaji

temple, they saw a car parked near the temple in which all the above-

named accused were present. The car followed the scooty of her sister

Sadhna and when she reached near Jiorlia village, the car of the

accused rammed into her sister’s scooty with the result both Sadhna and

Behari fell on the road. Then the accused drove their car towards her

sister, stopped it near Behari and shouted, ‘kill this fellow also otherwise

2 he may also give evidence’. The accused, however, ran away on the

arrival of the people. The incident was witnessed by the passer-by and

with their help Behari took her sister to Badaun hospital in a vehicle. Her

sister Sadhna died in the hospital. The complainant further stated that

she had come to the hospital at 11:00 on getting the information and lost

her consciousness on seeing the dead body of her sister. The autopsy

of the deceased was conducted in the night. When she regained her

consciousness, Behari told her the entire incident. After making

arrangements for the last rites of her sister, she came to the police

station to lodge the report. The complainant alleged that she

apprehends the association of the former BJP MLA Yogender Sagar in

the entire conspiracy. On the basis of this report, a case under Section

147, 304, 504, 323, 506, 120-B IPC was registered against the above

named six accused persons at P.S. Ujhani, District Badaun, vide Case

Crime No. 337/2016 dated 24.05.2016.

2.1 That subsequently on 27.05.2017, a case under Sections 2/3 of

the Gangsters Act, 1986 was registered against eight accused persons

vide Case Crime No. 268/2017. The charge sheet was filed against the

said eight accused persons on 26.5.2018 and the cognizance of the

same was taken by the learned Special Judge under the Gangsters Act,

Badaun on 2.7.2018.

3 2.2 It appears that thereafter on further investigation and on the basis

of the call recordings between the co-accused, handed over to the

Investigating Officer by the complainant, the names of the appellant –

Shraddha Gupta, her husband Sharvan Gupta and Kamlesh Sharma,

came to light and accordingly they were arrayed as accused in Case

Crime No. 337/2016.

2.3 That in the course of investigation, it also revealed that the

appellant – Shraddha Gupta, her husband – Sharvan Gupta and

Kamlesh Sharma were also involved in the offence pertaining to the

conspiracy of murder of deceased Sadhna Sharma. Therefore,

supplementary charge sheet was also filed against the aforesaid three

accused persons, namely, Shraddha Gupta, Sharvan Gupta and

Kamlesh Sharma. That subsequently, it was brought to the notice of the

Senior Superintendent of Police, Badaun, that the case under the

Gangsters Act, 1986 has been registered only against eight accused

persons and the charge sheet has been filed against eleven accused

persons in Case Crime No. 337/2016.

2.4 Thereafter, a gang chart was prepared against the appellant and

other two accused, which was sent to the Senior Superintendent of

Police, District Badaun on 19.03.2019. That thereafter the Joint Director

(Prosecution), Badaun granted approval on 1.4.2019 to register a case

4 against the aforesaid three persons under Sections 2/3 of the Gangsters

Act, 1986. SSP, Badaun, vide communication dated 2.4.2019

communicated to the Investigating Officer and accordingly FIR dated

27.05.2019 in Case Crime No. 268/2017 under Sections 2/3 of the

Gangsters Act has been lodged/registered against the appellant and

other two co-accused. Thus, the FIR for the offences under the

Gangsters Act has been registered against eleven accused in all (eight

accused charged earlier and the three accused including the appellant

herein charge sheeted subsequently).

2.5 That the appellant herein filed the present Criminal Miscellaneous

Writ Petition No. 21964/2019 before the High Court under Section 482 of

the Criminal Procedure Code and prayed for the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari to quash the orders dated 7.6.2019 and 2.4.2019 passed by the respondent no.3;

ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned FIR dated 27.5.2017 as Case Crime No. 268/2017 under Section 2/3 Gangsters Act, P.S. Ujhani, Dist.

Badaun, only to the extent of the petitioner;

iii) Issue a writ, order or direction in the nature of mandamus commanding respondents no. 2 and 3 not to arrest the petitioner in case Crime No. 268/2017 under Sections 2/3 Gangsters Act, P.S. Ujhani, District Badaun.

5 2.6 It was the case on behalf of the appellant that she has been falsely

implicated in the case; she was not named in the FIR; in the FIR, no role

has been assigned to her; her name has surfaced in further investigation

under Section 173(8) Cr.P.C.; the Senior Superintendent of Police,

Badaun maliciously submitted the supplementary gang chart against her

approved by the District Magistrate, Badaun; that she is neither a gang

leader nor a member of the gang being a household lady. It was also the

case on behalf of the appellant-accused that solely on the basis of the

single FIR/charge sheet, she cannot be charged for the offences under

the provisions of the Gangsters Act.

2.7 That by the impugned order, the High Court has dismissed the said

writ petition and has refused to quash the criminal proceedings under

Sections 2/3 of the Gangsters Act. A review application was also filed

which has also been dismissed.

2.8 Feeling aggrieved and dissatisfied with the impugned orders

passed by the High Court dismissing the writ petition under Section 482

Cr.P.C. and dismissing the review application, the accused Shraddha

Gupta has preferred the present appeals.

3. Shri Divyesh Pratap Singh, learned counsel appearing on behalf of

the appellant has, as such, reiterated what was argued before the High

Court.

6 3.1 It is vehemently submitted by the learned counsel appearing on

behalf of the appellant that in the facts and circumstances of the case,

the appellant has been wrongly booked/charged for the offences under

Sections 2/3 of the Gangsters Act, 1986.

3.2 It is contended that by no stretch of imagination, the appellant can

be said to be a ‘Gangster’ and/or a member of the ‘Gang’. It is submitted

that solely on the basis of a single FIR/charge sheet and that too with

respect to a single murder, the appellant cannot be said to be a

‘Gangster’ and/or a member of the ‘Gang’.

3.3 It is submitted that the allegations against the appellant cannot be

said to be in connection with anti-social activities for which she is to be

charged for the offences under Sections 2/3 of the Gangsters Act, 1986.

3.4 Relying upon the decision of this Court in the case of Piyush

Kantilal Mehta v. Commissioner of Police, Ahmedabad City, 1989 Supp

(1) SCC 322, it is submitted that as held by this Court only such activity

which adversely affect and/or likely to affect the maintenance of public

order can be said to be an anti-social activity.

3.5 Relying upon the decision of the Gujarat High Court in the case of

Karansinh Chetansinh Vaghela v. State of Gujarat, 2021 SCConLine

Gujarat 1260, it is submitted that as held by the Gujarat High Court, a

7 single FIR cannot be said to be sufficient for invocation of the preventive

statutes.

3.6 It is further submitted by the learned counsel appearing on behalf

of the appellant-accused that she cannot be implicated in the FIR in

question under the Gangsters Act solely on the basis of an isolated case.

It is contended that the appellant cannot be said to be a habitual offender

and she does not indulge in anti-social activities.

3.7 That in the present case, as such, the appellant was implicated in

the case on further investigation and by way of supplementary charge

sheet. That prior thereto eight persons were already charge sheeted

including for the offence under the Gangsters Act, 1986 and the learned

Special Court took cognizance against eight accused persons. It is

submitted that subsequently, the appellant and other two co-accused are

implicated along with eight accused persons and also charged for the

offences under the Gangsters Act also. It is contended that once the

Special Court took cognizance against eight persons, thereafter it was

not open to implicate the present accused, who were charge sheeted

subsequently for the offences under the Gansters Act.

4. The present appeals are vehemently opposed by Shri Sanjay

Kumar Tyagi, learned counsel appearing on behalf of the State of Uttar

8 Pradesh and Shri Shuvodeep Roy, learned counsel appearing for

respondent No.4 herein (original informant).

4.1 It is vehemently submitted that in the facts and circumstances of

the case, the appellant and two other accused are rightly charged for the

offences under Sections 2/3 of the Gangsters Act, 1986.

4.2 It is contended that in the present case, the provisions of the

Gangsters Act are invoked after following due procedure under the

Gangsters Act and after the gang chart was prepared and the same was

approved by the higher authority as well as the District Magistrate.

4.3 It is submitted that as such the eight co-accused persons, against

whom the earlier charge sheet was filed, were already charged for the

offences under Sections 2/3 of the Gangsters Act with respect to the

same offence.

4.4 That however after the initial charge sheet was filed against the

eight accused persons, during the course of further investigation, the

names of the appellant and two other accused persons came to surface

and therefore they were also arrayed as an accused. It is submitted that

therefore with respect to the same offence, when the other accused

persons were also charged for the offences under the Gangsters Act,

being co-accused and considering the definitions of ‘Gang’ and

‘Gangster’ under the Gangsters Act, 1986, the appellant and other two

9 co-accused who were charge sheeted subsequently were also required

to be prosecuted for the offences under the Gangsters Act also. It is

urged that therefore the appellant and other two co-accused are rightly

being prosecuted for the offences under the Gangsters Act.

4.5 It is submitted that in the present case, it has been revealed that

the father of the appellant Ramindra Nath Sharma had five daughters

and had no son. The deceased Sadhna Sharma was the eldest

daughter while the complainant Viparna Gaur, respondent no.4 herein is

the youngest. Late Ramindra Nath Sharma had left behind huge

immovable properties and it was found during investigation that there

was a chequered litigation amongst the daughters over the division of the

properties left behind by their father.

4.6 It is submitted that during the course of the investigation, it has

been revealed that the accused Shraddha Gupta, Sharvan Gupta and

Kamlesh Sharma are also involved for the offence pertaining to the

conspiracy of the murder of the deceased Sadhna Sharma.

4.7 It is pointed that the main co-accused P.C. Sharma, who is the

Gang Leader, is a dangerous criminal. He has an organised gang. He

along with his accomplices, with the purposes of making pecuniary gain

indulges and causes to indulge in offences relating to human body and

murder. It is submitted that all the accused now charge sheeted have

10 joined hands, connived and hatched the conspiracy to kill the deceased

with a view to make a pecuniary gain.

4.8 It is submitted that the appellant herein, being a member of the

‘Gang’, as defined under Section 2(b) of the Gangsters Act and is found

to have indulged in anti-social activities, mentioned in Section 2(b) of the

Gangsters Act, is also liable to be prosecuted for the offences under the

Gangsters Act being ‘Gangster’ as defined in Section 2(c) of the

Gangsters Act.

4.9 It is contended that even in case of a single FIR/charge sheet but

with respect to anti-social activities mentioned in Section 2(b) of the

Gangsters Act, there can be a prosecution under the Gangsters Act. It is

urged that under the Gangsters Act, there is no bar like in the other

statutes, such as, Maharashtra Control of Organized Crime Act, 1999

and the Gujarat Control of Terrorism and Organized Crime Act, 2015.

4.10 Learned counsel appearing on behalf of the respondents -State

has heavily relied upon the various decisions of the High Court of

Allahabad in which the High Court had an occasion to consider a similar

issue and had taken the view that considering the provisions of the

Gangsters Act, more particularly Sections 2(b) and 2(c), even in case of

a single FIR/charge sheet for the anti-social activities mentioned in

Section 2(b) of the Gangsters Act, an accused can be prosecuted for the

11 offences under the Gangsters Act. (Reference is made to Criminal

Miscellaneous Application No. 2226/2002, titled ‘Vishnu Dayal

Vishwanath v. State of UP’, decided on 15.06.2007; Writ Petition No.

4936/1999, titled ‘Rinku @ Hukku v. State of U.P.’, decided on 12.1.2000;

Application u/s 482 No., 32940/2015, titled ‘Mohit Chaudhary v. State of

U.P.’, decided on 10.12.2015; Criminal Miscellaneous Writ Petition No.

3938/2021, titled ‘Ritesh Kumar @ Rikki v. State of U.P.’, decided on

5.8.2021; and Criminal Miscellaneous Writ Petition No. 16164/1994, titled

‘Ajay Rai v. State of U.P.’, decided on 22.11.1994).

4.11 Making the above submissions and relying upon the above

decisions, it is prayed to dismiss the present appeals.

5. We have heard the learned counsel for the respective parties at

length.

6. The short question which is posed for the consideration of this

Court is, whether, a person against whom a single FIR/charge sheet is

filed for any of the anti-social activities mentioned in section 2(b) of the

Gangsters Act, 1986 can be prosecuted under the Gangsters Act. In

other words, whether a single crime committed by a ‘Gangster’ is

sufficient to apply the Gangsters Act on such members of a ‘Gang’.

7. While considering the aforesaid issues/questions, the relevant

provisions of the Gangsters Act, 1986 are required to be referred to. The

12 object and purpose of enactment of the Gangsters Act, 1986 is to make

special provisions for the prevention of, for coping with, gangsters and

anti-social activities and for matters connected therewith or incidental

thereto. Section 2(b) defines ‘Gang’ and Section 2(c) defines ‘Gangster’.

Sections 2(b) and 2(c) read as under:

“2(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 (Act no. 2 of 1974), namely—

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act no. 45 of 1860), 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 (U.P. Act no. 4 of 1910) or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or

(iii) occupying or talking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or (Act no. 61 of 1985)

(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 Art, 1956, or

(vi) offences punishable under section 3 of the Public Gambling Act, 1867 (Act no. 104 of 1956), 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 right or supply of goods or work to be done, or

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(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 undertakings 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;

(c) “gangster” means a member or leader or organiser 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 harbours any person who has indulged in such activities.”

7.1 Section 3 of the Gangsters Act, 1986 provides for punishment,

which reads as under:

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

(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

14 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.” 7.2 Section 5 of the Gangsters Act provides for constitution of Special

Courts for the speedy trial of the offences under the Act. Section 6

provides that a Special Court may, if it considers it expedient or desirable

so to do, hold its sitting for any of its proceedings at any place, other than

the ordinary place of its sitting or seat. Section 8 of the Act provides that

when trying any offence punishable under the Gangsters Act, a Special

Court may also try any other offence with which the accused may, under

any other law for the time being in force, be charged at the same trial.

Under Section 9 of the Gangsters Act, the State Government shall

appoint a person to be the Public Prosecutor for every Special Court.

Section 10 provides that a Special Court may take cognizance of any

offence triable by it, without the accused being committed to it for trial

upon receiving a complaint of facts which constitute such offence or upon

a police report of such facts. Section 12 provides that the trial under the

Gangsters Act of any offence by Special Court shall have precedence

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

(not being a Special Court) and shall be concluded in preference to the

trial of such other case and accordingly the trial of such other case shall

15 remain in abeyance. Section 13 of the Gangsters Act provides that

where, after taking cognizance of any offence, a Special Court is opinion

that the offence is not triable by it, it shall, notwithstanding that it has no

jurisdiction to try such an offence, transfer the case for trial of such

offence to any other court having jurisdiction under the Code and the

court to which the case is transferred may proceed with the trial of the

offence as if it has taken cognizance of the offence.

8. From the aforesaid, it can be seen that all provisions are to ensure

that the offences under the Gangsters Act should be given preference

and should be tried expeditiously and that too, by the Special Courts, to

achieve the object and purpose of the enactment of the Gangsters Act.

9. Now so far as the main submission on behalf of the accused that

for a single offence/FIR/charge sheet with respect to any of the anti-

social activities, such an accused cannot be prosecuted under the

Gangsters Act, 1986 is concerned, on a fair reading of the definitions of

‘Gang’ and ‘Gangster’ under the Gangsters Act, 1986, it can be seen that

a ‘Gang’ is a group of one or more persons who commit/s the crimes

mentioned in the definition clause for the motive of earning undue

advantage, whether pecuniary, material or otherwise. Even a single

crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on

16 such members of the ‘Gang’. The definition clause does not engulf

plurality of offence before the Gangsters Act is invoked.

A group of persons may act collectively or anyone of the members

of the group may also act singly, with the object of disturbing public order

indulging in anti-social activities mentioned in Section 2(b) of the

Gangsters Act, who can be termed as ‘Gangster’. A member of a ‘Gang’

acting either singly or collectively may be termed as a member of the

‘Gang’ and comes within the definition of ‘Gang’, provided he/she is

found to have indulged in any of the anti-social activities mentioned in

Section 2(b) of the Gangsters Act.

10. On a fair reading of the definitions of ‘Gang’ contained in Section

2(b) and ‘Gangster’ contained in Section 2(c) of the Gangsters Act, a

‘Gangster’ means a member or leader or organiser of a gang including

any person who abets or assists in the activities of a gang enumerated in

clause (b) of Section 2, who either acting singly or collectively commits

and indulges in any of the anti-social activities mentioned in Section 2(b)

can be said to have committed the offence under the Gangsters Act and

can be prosecuted and punished for the offence under the Gangsters

Act. There is no specific provision under the Gangsters Act, 1986 like the

specific provisions under the Maharashtra Control of Organized Crime

Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act,

17 2015 that while prosecuting an accused under the Gangsters Act, there

shall be more than one offence or the FIR/charge sheet. As per the

settled position of law, the provisions of the statute are to be read and

considered as it is. Therefore, considering the provisions under the

Gangsters Act, 1986 as they are, even in case of a single

offence/FIR/charge sheet, if it is found that the accused is a member of a

‘Gang’ and has indulged in any of the anti-social activities mentioned in

Section 2(b) of the Gangsters Act, such as, 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 and he/she

can be termed as ‘Gangster’ within the definition of Section 2(c) of the

Act, he/she can be prosecuted for the offences under the Gangsters Act.

Therefore, so far as the Gangsters Act, 1986 is concerned, there can be

prosecution against a person even in case of a single offence/FIR/charge

sheet for any of the anti-social activities mentioned in Section 2(b) of the

Act provided such an anti-social activity is 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.

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11. In the present case, it is alleged that the main accused P.C.

Sharma was a gang leader and who was the mastermind and he

hatched the criminal conspiracy along with other co-accused including

the appellant herein to commit the murder of the deceased Sadhna

Sharma for a pecuniary benefit as there was a property dispute going on

since long between the family members. It is also to be noted that the

other co-accused were already charge sheeted/prosecuted for the

offence under the Gangsters Act and therefore the appellant and the

other two co-accused being members of the ‘Gang’ were also required to

be prosecuted for the offences under the Gangsters Act also like other

co-accused. Therefore, in the facts and circumstances of the case, it

cannot be said that no prosecution could have been initiated against the

appellant-accused for the offences under Sections 2/3 of the Gangsters

Act, 1986.

12. In view of the above discussion and for the reasons stated above,

the High Court has rightly refused to quash the criminal proceedings

against the appellant-accused under Sections 2/3 of the Gangsters Act,

1986, in exercise of powers under Section 482 Cr.P.C. We are in

complete agreement with the view taken by the High Court. Under the

19 circumstances, the present appeals fail and the same deserve to be

dismissed and are accordingly dismissed.

………………………………….J. [M.R. SHAH]

NEW DELHI; …………………………………J. APRIL 26, 2022. [B.V. NAGARATHNA]

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