NAFEES Vs. STATE OF U P

JUDGEMENT

(1.) AFFIDAVIT filed by State is taken on record. Heard learned counsel for parties and perused the materials on record.

(2.) LEARNED counsel for the petitioners, at the outset, made a limited prayer that the impugned order taking cognizance under the U.P. Gangsters and Anti-Social activities (Prevention) Act, 1986 (for short, 'the Gangsters Act') only on the basis of case crime No. 144 of 2007 registered under Section 307,323,506 and 427 IPC against the petitioners would not be sustainable in Law. it is contended that the FIR in question was lodged in respect of an incident which occurred when the complainant side came to take forcible possession of a disputed land. The Settlement Officer, Consolidation, in an appeal by one Maqbool Ahmad, father-in- law of petitioner No. 1 Nafees, relating to the land in question had remanded the matter for afresh consideration which was pending before the Consolidation Officer at the time of incident. According to the learned counsel, the occurrence in question cannot be said to be an act of disturbing the public order or indulging in anti-social activities. Moreover, the land was purchased by Maqbool Ahmad, brother of petitioner No. 2 mehmood and father-in-law of petitioner No. 1 Nafees. Thus, both the petitioners are in no manner connected with that land and the order taking cognizance under the provisions of the Gangsters Act in the instant case suffers from the non application of mind. If such proceedings are allowed to continue, that will amount to abuse of the process of law and Court.

(3.) THUS it appears that a group of persons can form a gang in terms of Section 2(b) of the Gangsters Act only when they indulge in anti-social activities by way of violence or threat or show of violence or intimidation or coercion etc. with an object of disturbing public order and of gaining any undue temporal or pecuniary material or other advantage for himself. In the instant case, the alleged occurrence is said to have taken place as a result of a civil litigation between two parties over a property and prima facie it does not appear to be an act of disturbing public order. In para 22 of the judgment, while dealing with the statement of objects and reasons of Gangsters and Anti-social Activities (pre) Act. 1986(Act No. 7 of 1986), the Court has held that;