RISHI TYAGI AND 2 OTHERSversusState of UP AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

               APPLICATION U/S 482 No. - 15296 of 2024

Rishi Tyagi And 2 Others
                                                                .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                    .....Opposite
                                                                          Party(s)

Counsel for Applicant(s)      : Adarsh Bhushan, Ishwar Chandra Tyagi,
                                Ram Charan Lal
Counsel for Opposite Party(s) : G.A.

Court No. - 75
              HON'BLE DR. GAUTAM CHOWDHARY, J.

1. Heard learned counsel for the applicants, learned A.G.A. for the State, and
perused the material brought on record.

2. The present application has been filed for quashing of the entire
proceeding of Criminal Case No. 16 of 2021 (State Vs. Rishi Tyagi and
others), arising out of Case Crime No. 953 of 2019, under Section 2/3 of the
Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986,
(hereinafter to be referred to as 'the Act'), Police Station Bisrakh, District
Gautam Buddh Nagar, pending in the court of learned Additional District
Judge-VI, Gautam Buddh Nagar. Further prayer has been made to quash the
cognizance/ summoning order dated charge sheet dated 12.11.2020 as well
as cognizance/ summoning order dated 25.01.2021 passed in the aforesaid
case.

3. The germane facts of the case are that a first information report has been
lodged in Case Crime No. 953 of 2019, under Section 2/3 of the Act, at
Police Station Bisrakh, District Gautam Buddh Nagar, wherein it has been
averred that the applicants along with the co-accused have formed an
organized criminal gang, who are engaged either collectively or individually
are repeatedly indulged in anti-social and violent activities within the
territorial limits of the District for their personal gain. It is further averred
that by unleashing terror, fear in the locality, the applicants and the co-
accused disrupted public peace and created such panic that innocent
members of the public are deterred from coming forward to depose or lodge
complaints against them through ordinary legal machinery. A gang chart was
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prepared, wherein the details of the criminal cases pending against the
applicant has been described. Upon approval of the Gang chart by the
concerned authorities, F.I.R. has been lodged against the applicants and the
co-accused under the Act. The matter was entrusted for investigation, the
investigating officer after collecting credible evidence oral as well as
documentary evidence, disclosing prima facie complicity of the applicant as
an active member of the gang, the investigation culminated in submission of
charge sheet, upon which learned trial Court took cognizance vide order
impugned and therefore the applicants are before this Court challenging the
entire proceedings as well as charge sheet and cognizance order, as detailed
in the preceding paragraph.

4. Learned counsel for the applicants has contended that merely on the basis
of case(s) shown against the applicant in the gang chart, Gangsters Act has
been imposed upon the applicant. Learned counsel further argued that the
applicants are neither gang leader nor they are members of any gang and that
the applicants never acted or conducted themselves as such. He further
submits that the Act of 1986 merely defines the status of accused-applicants
indulging in a crime, specified in the definition clause as a "gangster" going
by the definition of "gang" and "gangsters" provided respectively under sub-
sections (b) and (c) of Section 2. Learned counsel thus argued that the Act of
1986 does not create a crime/offence. Apart from the aforesaid submission,
learned counsel also argued that the gang chart merely demonstrates the
involvement of the applicants in a crime, as specified under the clauses of
Section 2(b) of the Act of 1986 for which punishment is already prescribed.
He thus submits that Gangsters Act has been roped upon the applicants
without an offence being created. It is the settled principle in law that there
can be no punishment without an offence in law. Learned counsel has placed
reliance upon a reported decision of Hon'ble Apex Court rendered in the
matter of Shiv Pratap Singh alias Chinu Vs. State of U.P. and others
passed in Criminal Appeal No. 3979 of 2026: 2026 INSC 894.

5. Learned A.G.A. has vehemently opposed the application and submitted
that the charge sheet has been filed after a comprehensive and fair
investigation which reveals sufficient credible material substantiating the
applicants' complicity in organized gang activities. It is contended that the
statutory requirements prescribed under the Gangsters Act and the Rules of
2021 were strictly adhered to; the gang-chart was prepared collectively
incorporating the substantive base cases of the gang members and was duly
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approved by the competent administrative authorities, upon joint
satisfaction.

6. Learned A.G.A. further contends that even a solitary criminal antecedent
or collective base cases satisfy the threshold under Section 2(b) of the Act,
and that the learned trial court, having found a prima facie case disclosing
the commission of the offence, rightly took cognizance and summoned the
applicant, which calls for no interference by this Court, in exercise of powers
conferred under Section 528 BNSS. However, learned A.G.A. could not
dispute the ratio of the Hon'ble Apex Court in the matter of Shiv Pratap
Singh alias Chinu (supra).

7. I have heard learned counsel for the applicant, learned A.G.A. and
perused the material on record.

8. The Hon'ble Apex Court in the matter of Shiv Pratap Singh alias Chinu
(supra) thoroughly analyzed the foundational architecture of the U.P. Act
1986 Act and in paragraph nos.43, 52, 54 held as under:-

      43. "….... 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 gang, the punishment is prescribed for
      a gangster without an offence being created by statute; which
      makes the penal act, stillborn."

      "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
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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 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."

"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 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
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     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'.

9. The Hon'ble Apex Court has authoritatively held that the Act suffers from
an incurable statutory defect by prescribing penal consequences for being a
"gangster" under Section 3 without actually enacting, creating, or defining
an independent substantive offence under the statute. The executive
apparatus and subordinate rules cannot be permitted to supply or
manufacture a penal offence where the parent statute has failed to create the
same. Furthermore, the practice of preparing an omnibus gang chart wherein
cases are collectively incorporated and approved routinely by executive
authorities without establishing independent statutory culpability cannot
validate an otherwise unconstitutional prosecution. When the foundational
statute itself has been declared "stillborn" for the purposes of prosecuting
individuals under Sections 2 and 3 of the Act, initiating or continuing
criminal trials solely grounded on the inclusion of an accused in an
administrative gang-chart is impermissible and amounts to a sheer abuse of
the process of law and therefore, in the light of the law laid down by the
Hon'ble Supreme Court in Shiv Pratap Singh alias Chinu (supra), this
Court finds that the continuation of criminal proceedings against the
applicant under the provisions of the Act cannot be legally sustained, having
no statutory base to stand on and thus the same is liable to be quashed.

10. In view of the above, the entire proceedings of Criminal Case No. 16 of
2021 (State Vs. Rishi Tyagi and others), arising out of Case Crime No. 953
of 2019, under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986, Police Station Bisrakh, District Gautam
Buddh Nagar including the charge sheet dated 12.11.2020 and also
the cognizance/ summoning order dated 25.01.2021 passed in the aforesaid
case are hereby quashed as against the applicants.

11. Accordingly, the instant application is allowed.

12. It is clarified that this order shall not affect, impede, or prejudice any
pending trial, investigation, or proceedings against the applicants in the
underlying base case(s) under the general penal law, which shall proceed to
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                                    their logical conclusion on their own merits in accordance with law.


                                                                                  (Dr. Gautam Chowdhary,J.)

                                    September 24, 2026
                                    Mustaqeem.




Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad