The Allahabad High Court, while hearing a petition of Ghosi MP Atul Rai, said that any subsequent criminal activity of a person though may be taken note of during trial of a previous criminal case, the said person cannot be tried or convicted for any subsequent criminal activities in the pending trial. In the spirit of criminal jurisprudence, every accused is presumed to be innocent till proven otherwise.
The Division Bench of Justice Sunita Agarwal and Justice Sadhna Rani Thakur passed this order while hearing a petition filed by Atul Rai.
By means of the petition, the petitioner herein seeks for quashing of the FIR dated October 23, 2021 registered as Case lodged in Police Station Lanka, District Kashi (Commissionerate Varanasi).
It is argued by the Senior Advocate for the petitioner that the basis of lodging the first information report on October 23, 2021 alleging commission of the offense under Section 3(1) of the Uttar Pradesh Gangster & Anti Social Activities (Prevention) Act, 1986 is the Case which was lodged under Sections 147/148/ 149/ 364/ 307/ 342/ 352 /323/504/34 IPC.
The said FIR was challenged before the Court in petition (Atul Rai vs. State of UP and 2 others), wherein order dated July 26, 2017, while disposing of the petition, it was directed by the Court that the petitioner herein shall not be arrested till cogent and credible evidence is collected showing the complicity of the petitioner in the said case or till submission of the police report under Section 173(2) CrPC before the Court concerned, whichever is earlier.
It is submitted that as against the spirit of the aforesaid interim order, the petitioner had been arrested on December 10, 2017 and the Investigating Officer sought remand from the concerned Magistrate.
The remand Magistrate had rejected the request of remand while observing in the order December 10, 2017 that the Investigating Officer could not collect cogent and credible evidence till that date and hence in accordance with the order of the High Court, the petitioner could not be taken into custody.
A contempt application was, thereafter, filed before the Court namely Contempt Application (Atul Rai vs. Sri Sanjeev Mishra Station Officer P.S. Lanka and 3 others) wherein by the order dated January 23, 2018, the Court has called upon the Senior Superintendent of Police to file his personal affidavit to explain the background in which the observation had been made by the Remand Magistrate.
It is contended that after the order passed by the contempt Court, in a hurried manner, charge sheet had been submitted against the petitioner on February 17, 2018, which had further been subjected to challenge in Application U/S 482 (Atul Rai vs. State of UP and another), wherein the Court had passed an order dated July 16, 2018 directing that no coercive measure shall be taken against the applicant.
The submission, thus, is that the lodging of the FIR under the Gangster Act on October 23, 2021 is nothing but violation of the interim protection repeatedly granted by the Court staying arrest of the petitioner and further that the Investigating Officer is bent upon to keep the petitioner behind bars. The contention is that the current FIR is an act of revenge on the part of the Investigating Officer.
In this regard, the contention of the counsel for the petitioner is that the substantive offence which has been taken note to book the petitioner under the Gangster Act and Criminal Case cannot be said to be the basis of implicating the petitioner under the Gangster Act. The petitioner was arrested on February 26, 2019 and is confined in jail and his bail application has been rejected. The trial in the aforesaid case is going on under the direction of this Court and the entire prosecution evidence has already been concluded.
It is argued that there was virtually no occasion for recording satisfaction in the FIR regarding any gang activity of the petitioner that too on the statement of the public, when the petitioner was already behind the bar on the date, i.e October 23, 2021, when evidence regarding gang activity was allegedly collected by the first informant. The interim protection granted by the Court in Case has been violated with impunity by the Investigating Officer.
The above circumstances are sufficient to conclude that the first information report is a result of malice of the Investigating Officer.
Lastly, it is argued that at the previous point of time between 2009 till 2012, four criminal cases under the Gangster Act have been lodged against the petitioner. In all those cases, trials are going on.
The contention, thus, is that separate FIR for the same offence, i.e the offence under the Gangster Act allegedly committed in 2017 and 2019 cannot be registered. The basis of this argument is the provisions contained in Section 8 of the Evidence Act which says that any subsequent activity of the accused can be taken into consideration by the concerned court during the course of trial. The contention, thus, is that once the provision of taking into consideration of subsequent activities is in the statute, there is no occasion for lodging of the first information report with the object to book the petitioner to retain him behind the bar.
The AGA, on the other hand, submitted that repeated criminal activities of the petitioner are evident from the record and no interference as such can be made.
The Court noted that the charge sheet in the Case was submitted on February 17, 2018 where after order was passed in the contempt proceeding in January, 2018 calling upon the Senior Superintendent of Police to submit his stand as to whether there was cogent and convincing evidence before the Investigating Officer on the date of arrest.
The Court further noted that no report of any gang activity was lodged at that point of time. While the petitioner was out under the interim protection granted by the Court, he has been implicated in another criminal case in the year 2019, under Sections 420, 376, 504 and 506 IPC. The charge sheet in the said case was submitted on June 30, 2019. The current first information report has been lodged on October 23, 2021 after a period of two years of the order passed by the contempt Court.
It, therefore, cannot be accepted that the current FIR is a result of malice of the Investigating Officer or any police authority who had been called in the contempt proceeding before the Court two years earlier. As regards the contention of counsel for the petitioner that the petitioner being in jail and his bail application having been refused, he could not have been booked under the Gangster Act, the Court said.
The Court did not find any substance in the said submission and sufficed it to say that the FIR cannot be quashed on this ground.
As regards the contention of the counsel for the petitioner regarding pending trials under the Gangster Act and the provisions of Section 8 of the Evidence Act, the court observed that the said argument being wholly misconceived, inasmuch as, any subsequent criminal activity of a person though may be taken note of during the course of trial of a previous criminal case, but the said person cannot be tried or convicted for any subsequent criminal activities in the pending trial.
In the spirit of the criminal jurisprudence, every accused is presumed to be innocent till proven otherwise. It is the duty of the prosecution to prove beyond all reasonable doubts that the accused is guilty of committing the crime alleged.
The accused person cannot be tried for an offense without collecting cogent or credible evidence against him during the course of investigation and submission of the police report in a first information report alleging commission of the offense.
The Court said that there is no argument that the alleged activities, which have been reported in the first information report do not fall within the meaning of Anti-social activity so as to bring it within the meaning of ‘Gang’ under the Gangster Act. It cannot be said that from the reading of the first information report, no offense can be made out.
The Court also noted that the FIR itself narrates that the Gang Chart dated October 22, 2021 was approved by the competent authority which contains two recent criminal cases against the petitioner. Apart from this, as brought before us, trials in four criminal cases under the Gangster Act are going on against the petitioner. For all the noted reasons, we do not find any case for quashing of the FIR.
Accordingly, the Court dismissed the writ petition.