AKHILESH KUMAR PANDEYversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                   APPLICATION U/S 482 No. - 29856 of 2024

Akhilesh Kumar Pandey
                                                             .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)      : Avinash Singh           Chauhan,     Virendra
                                Singh Chauhan
Counsel for Opposite Party(s) : G.A.

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

1. Counter affidavit filed on behalf of State is on the record.

2. Learned counsel for the applicant submits that he does not want to file
rejoinder affidavit and the case may be heard on merits.

3. Heard learned counsel for the applicant, Shri Rajendra Singh, learned
A.G.A. for the State, and perused the material brought on record.

4. The present application under Section 528 BNSS has been filed for
quashing of entire proceeding of Sessions Trial No. 92 of 2011 (State Vs.
Yasonandan and others), arising out of Case Crime No. 1799 of 2010,
under Section 3(1) of the Uttar Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986, (hereinafter to be referred to as the,
'Act, 1986'), Police Station Civil Line, District Rampur, pending in the
court of learned Additional Sessions Judge-3rd (Gangster Act), Rampur.

5. The germane facts of the case are that a first information report has
been lodged in Case Crime No. 1799 of 2010, under Section 3(1) of the
Act, 1986, at Police Station Civil Line, District Rampur, wherein it has
been averred that the applicant along with other 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 applicant
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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
case 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 to 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
detailed in the preceding paragraph.

6. Learned counsel for the applicant has contended that merely on the
basis of one case 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. 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.

7. Learned A.G.A. has vehemently opposed the application and submitted
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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.

8. 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, thus, the present proceeding calls for no
interference by this Court in exercise of powers conferred under Section
482 Cr.P.C. 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).

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

10. 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
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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 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
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     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 and hang him'.

11. 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
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                                    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.

                                    12. In view of the above, the entire proceedings of Sessions Trial No. 92
                                    of 2011 (State Vs. Yasonandan and others), arising out of Case Crime No.
                                    1799 of 2010, under Section 3(1) of the Uttar Pradesh Gangsters and Anti
                                    Social Activities (Prevention) Act, 1986, (hereinafter to be referred to as
                                    the, 'Act, 1986'), Police Station Civil Line, District Rampur, pending in
                                    the court of learned Additional Sessions Judge-3rd (Gangster Act),
                                    Rampur, is hereby quashed as against the present applicant.

                                    13. Accordingly, the instant application is allowed.

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



                                                                                   (Dr. Gautam Chowdhary,J.)
                                    September 18, 2026
                                    Mustaqeem.




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