MOHD. JAVEDversusSTATE OF U.P. AND ANOTHER

      HIGH COURT OF JUDICATURE AT
              ALLAHABAD

   APPLICATION U/S 482 No. - 28058 of 2024


Mohd. Javed
                                         .....Applicant(s)
                       Versus
State of U.P. and Another
                                         .....Opposite
                                               Party(s)

Counsel for Applicant(s)      : Mohammad Zakir,
                                Shivam Agarwal
Counsel for Opposite Party(s) : G.A.

Court No. - 75

  HON'BLE DR. GAUTAM CHOWDHARY, J.

1.Heard Mohd. Zakir, learned counsel for the
applicant, learned Additional Government Advocate
(A.G.A.) for the State, and perused the record.

2. The present application has been filed seeking for
quashing of the entire proceedings C.C. No. 76 of
2009 (State Vs. Sandeep and others) arising out of
Case Crime No.140 of 2009, 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 Badalpur, District
Gautambudh Nagar, pending before learned Special
Judge, (Gangster Act), District Gautambudh Nagar as
well as to quash the charge sheet dated 18.10.2009 and
also to quash the summoning order dated 20.11.2009
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.
140 of 2009 under Section 2/3 of the Act at Police
Station Badalpur, District Gautambudh Nagar wherein
it has been averred that the applicant along with the
co-accused have formed an organized criminal gang,
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                     2


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 applicant 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 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
applicant 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 applicant is 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 applicant 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 applicant is neither a gang leader nor
he is a member of any gang and that the applicant
never acted or conducted himself as such. Learned
counsel further argued that though the proceedings
arises out of Case Crime 140 of 2009 in which charge
sheet was submitted on 18.10.2009 and summoning
order was passed on 20.11.2009 but till date not even a
single witness has been examined and the case is
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                     3


pending consideration since, 2009 as is evident from
the perusal of the order sheets of the case, copy of
which is annexed as Annexure-5 to the affidavit
accompanying the application. He further submits that
the Act of 1986 merely defines the status of accused-
applicant 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 applicant 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 applicant
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 Additional Government Advocate 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
applicant's 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 approved by the
competent administrative authorities, upon joint
satisfaction.
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                     4


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
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                5


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 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
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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 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
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                      7


     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
C.C. No. 76 of 2009 (State Vs. Sandeep and others)
arising out of Case Crime No.140 of 2029, under
Section 2/3 of the Uttar Pradesh Gangsters and Anti-
Social Activities (Prevention) Act, 1986, Police
Station Badalpur, District Gautambudh Nagar,
pending before learned Special Judge, (Gangster Act),
District Gautambudh Nagar as well as charge sheet
dated 18.10.2009 and also the summoning order dated
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                                                             8


                                        20.11.2009 passed in the aforesaid case, are hereby
                                        quashed as against the applicant.

                                        11. Accordingly, the instant application is allowed.

                                                                 (Dr. Gautam Chowdhary,J.)

                                        September 23, 2026
                                        S.Ali




Digitally signed by :-
SHAUKAT ALI
High Court of Judicature at Allahabad