MOTI CHAND NISHAD AND 5 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 30606 of 2025

Moti Chand Nishad And 5 Others
                                                               .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                     :   Karunesh Pratap Singh
Counsel for Opposite Party(s)                :   G.A.

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

1. Heard Mr. Alok Chandra and Mr. Amit Yadav holding brief of Mr.
Karunesh Pratap Singh learned counsel for the applicants, 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 Special Session Trial No. 750 of 2020 (State Vs. Motichand and
others), arising out of Case Crime No. 562 of 2018, under Section 3(1) of the
Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986,
(hereinafter to be referred to as “the Act) Police Station Khorabar, District
Gorakhpur, pending before learned Special Judge, Gangster Act, Court No.
6, Gorakhpur as well as to quash the charge sheet dated 21.04.2020 and also
the Cognizance-cum-summoning order dated 15.02.2023 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. 562 of 2018, under Section 3(1) of the Act, at
Police Station Khorabar, District Gorakhpur, 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 prepared,
wherein the details of the criminal cases pending against the applicants have
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 applicants as an active
member of the gang, the investigation culminated in submission of charge
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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 applicants. Learned counsel further argued that the
applicants are neither a gang leader nor they are member 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 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 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 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
applicants, 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 applicants, 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
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                                3


(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
     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
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     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 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
applicants 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.
750 of 2020 (State Vs. Motichand and others), arising out of Case Crime No.
562 of 2018, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-
Social Activities (Prevention) Act, 1986, Police Station Khorabar, District
Gorakhpur as well as charge sheet dated 21.04.2020 and also the
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                                    Cognizance-cum-summoning order dated 15.02.2023 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
                                    their logical conclusion on their own merits in accordance with law.



                                                                                   (Dr. Gautam Chowdhary,J.)
                                    September 17, 2026
                                    CP.sahani




Digitally signed by :-
CHANDRA PRAKASH SAHANI
High Court of Judicature at Allahabad