JUDGMENT Vinod Prasad, J.
1. The two petitioners Udham Singh and Ranjeet Yadav have approached us through the instant writ petition with the prayer to issue a writ of certiorari quashing the FIR dated 28.2.2008 of Crime No. 297/2008, under Section 2/3 of U.P. Gangster Act and Anti Social Activities (Prevention) Act 1986 (annexure 1), to the writ petition. The ancillary prayer is for the mandamus restraining the respondents authorities from arresting the petitioners in connection with the above FIR. Before adverting to the contentions raised by the learned Counsel for the petitioners, a short narration of the allegations levelled against them are sketched below:
2. The State through SHO R.P. Sharma, Incharge Inspector, Police Station, Nawabad, district Jhansi, lodged FIR of Crime No. 297/2008, under Section 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act 1986, hereinafter referred to as the Act on 28.2.2008 at about 10 p.m. at P.S. Nawabad, district Jhansi in respect of the incidents occurred at different dates and times. The petitioners before us are the malefactors in the aforesaid FIR along with their accomplices. According to the allegations levelled in the FIR, the informant received informations from the various persons of his jurisdiction that Raghunath alias Batoli Yadav s/o Gajraj Yadav, r/o Mustra, P.S. Nawabad, district Jhansi has got a known gang of which he is the leader. The two petitioners Ranjeet and Udham Singh along with Bahadur Yadav are the members of his gang, which indulge in commission of penal offences under Chapter XVI, XVII and XXXII of IPC for economical, physical and other benefits singularly or in conjunction with other groups. Because of the activities of the aforesaid gang, general public is not ready to give evidence in court nor can muster the courage to lodge the FIR against them. With the aforesaid allegations the informant was of the opinion that it is essential to proceed against the said gang under the Act and therefore, he lodged the FIR Under Section 2/3 of the Act after getting the gang chart approved by the District Magistrate, Jhansi. Gang chart indicates that above gang leader is involved in four cases of very serious nature. Crime No. 990/90 is Under Sections 147, 148, 149 307 IPC, Crime No. 1223/07 is Under Sections 147, 148, 149, 307, 302 IPC, Crime No. 02/06 is Under Sections 395, 397, 427 323, 504 and 506 IPC and NCR No. 11 of 2008 is Under Section 506 IPC. Out of the aforesaid crimes the two petitioners are involved in murder offence vide Crime No. 1223/07. Gang chart further reveals that it has been approved by the Circle Off ice, S.P. (City) as well as District Magistrate Jhansi vide his noting dated 28.2.2008. It is this FIR, which is now being prayed to be quashed through the present writ petition.
3. On such facts, we have heard Sri V.C. Mishra, learned Senior uounsel assisted by Sri Vivek Mishra in support of this writ petition and learned AGA in opposition.
Sri V.C. Mishra learned Senior Counsel vehemently argued before us that on the basis of the single incident, no offence under Gangster's Act can be said to be made out. Secondly, he contended that no satisfaction has been recorded in the impugned FIR regarding existence of the gang and indulging into the activities. Lastly, it is canvassed that petitioners do not have any criminal history but for one case of murder, referred to above, and therefore, on the basis of a single incident they cannot be booked under the Gangster's Act. Learned Senior Counsel has placed reliance on the judgments of Subhash v. State of U.P. and Anr. 1998 JIC 405 and State of U.P. v. Phool Mia 1998 (2) ACC 270.
4. Learned AGA on the other hand contended that for making out the offence under the Act the registration of the FIR is not essential. He further contended that only FIR has been registered and the investigation is yet to take place and since the FIR discloses commission of cognizable offence of serious nature and the gang chart has been sanctioned by the various district authorities after being satisfied that there is an existence of gang as is mentioned in the FIR, therefore, the impugned FIR cannot be quashed and the investigation must take place. He concludingly urged that the writ petition is bereft of any merit and deserves to be dismissed.
5. We have heard the arguments advanced from both the sides and perused two judgments cited at the bar by the learned Counsel for the petitioners. Before we advert to the contentions raised by the learned Senior Counsel some essential indispensable facts and law have to be taken note of.
6. Gangster's Act was necessitated with a view to control gangsterism and anti social activities of the Gangster. The vires of the Act has been up held by a Full Bench of this Court in Ashok Kumar Dixit v. State of U.P and Anr. 1987 (24) ACC 164 vide para 22 thereof. It was held by Full Bench of this court in the aforesaid decision that "There need not be any overt of positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime." The aforesaid observation of the Full Bench of this court has been approved in the case of Subhash (supra) on which petitioners have placed reliance.
7. Coming to the first contention of the learned Counsel for the petitioners that on the basis of a single incident, the petitioners cannot be booked under the Act, we need to observe only this much that vide para 14 of the aforesaid judgment of Subhash (supra), the said contention has already been negated by the Division Bench of this Court on which decision, reliance has been placed by the petitioners themselves. It has been held in the aforesaid decision of Subhash (supra) as follows:
The words used in Section 2 are no doubt in plural indicating "indulges in anti social activities" but the sentence does not stop with the words "anti social activities". It goes on with the words "viz." followed by 15 Clauses of anti social activities enumerated therein. The plural in "anti social activities" referred to the large number of activities to be brought under the umbrella of this single offence and it would never mean that there must be plurality of actions before a person could be prosecuted or convicted for an offence under the Act. When a specific offence has been created, it is open to be punished even for a single act, if it is covered by the requirements of law. We thus, answered point No. 1 framed by us.
8. In view of the above law laid down by this court, we unhesitatingly hold the first contention of the learned Counsel for the petitioners to be unmerited.
There is another aspect of the matter which we would like to discuss. Under the definition Clause of the Act Under Sections 2(b) and (c), it is not required that the FIR must be registered against the gangster before he is booked under the Act. Sine qua non to prosecute an individual under the Act is commission of an offence as a "gangster" . Gang means a group of persons, who acting either signally or collectively, by violence, or threat or show violence or intimidation, or coercion or other wise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti social activities. It is not the requirement of law that no body can be prosecuted under the Act if no FIR is registered against him. It is the activity of an individual which is the determinative factor for bringing him under the mischief of the Act and nothing else. If he acts as a member or leader of a gang he can be booked under the Act irrespective of any previous FIR being registered against him or not. The plain reading of different definition Clauses clearly indicates that if the person indulges into the commission of offence enumerated Section 2(b)(l) to (XV) as a member or leader of a gang for gaining any undue temporal, pecuniary, material or other advantage then he is purviewed within the ambit of the Act and it is not the requirement of law that the FIR for the input offence must be registered before he is booked under the Act. Since the purpose of the Act is to curb the activities of gangster, which are more often than not commit not in any public gaze therefore the provisions of Act have to interpret in a manner which fosters its purpose and the intention of legislature best.
9. The uproot of the above discussion is that the first contention of the learned Counsel for the petitioners is hereby repelled.
Coming to the second contention of the learned Counsel for the petitioner that there is no satisfaction of the authorities mentioned in the impugned FIR, we say only this much that the gang chart forms the part of the FIR and in the gangs chart it is clearly mentioned that there is a gang, which indulges in to the offences, which are mentioned in the gang chart for the purposes of gaining any undue temporal, pecuniary, material or other advantage. The perusal of the gang chart by itself is indicative of the satisfaction, which authorities have while sanctioning registration of the FIR under the Act against the petitioners. We cannot carve out any exception of the act of the authorities in forming the said opinion as in our view also existence of gang and indulging into the offences by it mentioned in the gang chart is writ large on the face of the record. In this view of the matter, the second contention of the learned Counsel for the petitioner is also repelled.
10. Coming to the third contention of the learned Counsel for the petitioners that the petitioners do not have any criminal history, we need to say only this much that according to the case of the petitioner themselves they are involved in a case of murder. The other accused in that murder case are also involved in many other offences of serious nature. According to the informant's contention this is an act of gang and the petitioners are the members thereof. The said aspect of the matter is yet to be investigated. Up till now only the FIR has been registered. The petitioners may participate in the investigation and prove their innocence and their none attachment with any gang. Before us there is no material for coming to a conclusion that the petitioners are not the members of a gang which indulge into the commission of cognizable offence of serious nature for gaining any undue temporal, pecuniary, material or other advantage.
11. Coming to the two judgments cited at bar, the decision of Subhash (supra) is of no help to the case of the petitioners at all, as we have discussed above. Another judgment of Phool Mia (supra) cited at the bar is also of no help to the petitioners, as that decision was rendered after a full trial, which is not the case before us.
The above discussion leads us to the conclusion that this writ petition is bereft of any merits and hence is hereby dismissed.