AFZALversusSTATE OF U.P. AND ANOTHER

           HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 22147 of 2026

Afzal
                                                                        .....Applicant(s)
                                          Versus

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

Counsel for Applicant(s)      : Gaurav Kumar Sharma, Mohammad
                                Belal
Counsel for Opposite Party(s) : G.A.

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

1.Heard 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 Session Trial No.27 of 2015 (State Vs. Mohd. Akram and others) arising
out of Case Crime No.317 of 2014, 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 Dhoomanganj, District Allahabad pending before learned Special
Judge, Gangster Act, District Allahabad as well as to quash the summoning order
dated 20.07.2015 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. 317 of 2014 under Section 2/3 of the Act at Police Station
Dhoomanganj, District Allahabad, wherein it has been averred that the applicant 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 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.
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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. 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.

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."
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"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 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 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
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                                    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 Special Session Trial No. 68 of
                                    2023 (State Vs. Shravan Yadav and others), arising out of Case Crime No. 335 of
                                    2023, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities
                                    (Prevention) Act, 1986, Police Station Line Bazar, District Jaunpur, pending before
                                    learned Special Judge, Gangster Act, Jaunpur as well as charge sheet dated 03.11.2023
                                    and also the summoning order dated 07.12.2023 passed in the aforesaid case are
                                    hereby quashed as against the applicant.

                                    11. Accordingly, the instant application is allowed.




                                                                                           (Dr. Gautam Chowdhary,J.)
                                    September 29, 2026
                                    S.Ali




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