After SC Intervention, UP Govt Frames Guidelines For Invocation Of Gangsters Act; Finds Provisions Not Attracted Against A Man Booked Under It

After Supreme Court's nudge, the Uttar Pradesh government has laid down parameters/guidelines in relation to invocation of the provisions of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

In April 2024, the top Court, while considering the case of a person booked under the Act, had asked the government to consider desirability of laying down some guidelines. Coming through, the State government not only laid down the guidelines but also found that in the case before the Court, invocation of provisions of the Act was not made out.

The matter was listed yesterday before a bench of Justices Surya Kant and N Kotiswar Singh, which passed an order stating,

"in light of the guidelines, respondents have considered case of the petitioner and it has been found that provisions of the Act are not attracted. That being so, impugned judgment of the High Court is set aside and the instant appeal stands disposed of in terms of the decision taken by the competent authority following the guidelines. It goes without saying that enforcement agencies will be obligated to follow the guidelines strictly to prevent misuse of UP Gangsters Act and shall abide by all checkpoints prescribed."

Put briefly, the issue involved was whether any prima facie case under UP Gangsters Act was made out against the petitioner/accused. After issuance of notice, Additional Solicitor General KM Nataraj (for UP government) sought time to obtain instructions and later informed the Court that the state government was contemplating laying down some guidelines/parameters to be followed before invoking the UP Gangsters Act.

In December last year, the ASG updated the Court that the guidelines had been formulated. The state on its part filed a compliance affidavit explaining that further orders had been issued directing strict compliance with the guidelines read with the 2021 Rules framed under the Act. Regarding preparation of gang chart, these directions reportedly cautioned the authorities that in event of any negligence, penal action will be warranted. 

Yesterday, while passing its order, the Court further noted that a checklist of 29 points and instructions was issued by the government for strict action against officers who would be found indifferent or ignorant in adhering to the relevant guidelines/Rules.

Background

Pursuant to an FIR of 2018, a case was registered against the petitioner under Section 3(1) of the UP Gangsters Act, which prescribes the penalty for being a member of a gang as defined under Section 2(b). For quashing of the FIR and stay of arrest, he approached the Allahabad High Court, however, this plea was dismissed.

Based on judicial precedents, the High Court was of the view that, "there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case."

On facts, it could not prima facie say that no cognizable offence was made out.

Aggrieved by the High Court decision, the petitioner moved the top Court. While the proceedings were pending, on February 2, 2024, the authorities filed a chargesheet. The Supreme Court Bench expressed displeasure with the same, calling it an attempt to render the case infructuous.

"Prima facie, it appears that the Police Authorities and the District Magistrate have tried to overreach this Court by taking peremptory action so as to render these proceedings infrucutuous", the court recorded in the order. It also directed that the chargesheet be kept in abeyance and stayed further proceedings.

Appearance: Advocate-on-Record Sadashiv (for petitioner); ASG KM Nataraj (for UP govt)

Case Title: Gorakh Nath Mishra v. State of Uttar Pradesh & Ors., Diary No(s) 2673/2023

Click Here To Read/Download Order