WASEEM Vs. STATE OF U P AND ANOTHER

JUDGEMENT

(1.) Three persons namely Sunil Kumar Dhaka, Puneet Kumar Giri and Sudhir Kumar were murdered and the dead bodies were found dumped in an Esteem Car. In respect of this incident Case Crime No. 95 of 2008 under Sections 364, 302 and 201 I.P.C. was registered at P.S. Balani, District Baghpat and another case was registered at Case Crime No. 190 of 2008 under Sections 147, 148, 149, 364, 302 and 201 I.P.C. at Police Station Kotwali, District Meerut. During the course of investigation a case under Section 2/3 of the U.P. Gangsters And Anti Social Activities (Prevention) Act (for short the "the Act") was also filed against the revisionist. The matter was investigated and a chargesheet under various sections of I.P.C. and under Section 2/3 of the Act was filed in the court of Special Judge (Gangsters Act), Meerut. From perusal of the records it appears that nine persons including the revisionist were chargesheeted in the case. At the stage of framing of charges, an application was moved before the learned Special Judge to discharge all the chargesheeted accused of the charges mentioned in the chargesheet. After hearing both the parties the learned Special Judge vide his order dated 19.1.2010 rejected the discharge application. It appears that thereafter charges were framed on 21.4.2010. Feeling aggrieved by rejection of their discharge application, all the 9 accused persons preferred a Criminal Revision No. 343 of 2010 before this Court. It also appears that another Criminal Revision No. 2011 of 2010 was filed against another order of the learned lower court dated 21.4.2010 whereby charges were framed against the accused under various sections of I.P.C. and under Section 3(2) of the the Act. Both the revisions were connected to each other and after hearing the parties another bench of this Court vide its order dated 20.8.2010 partly allowed both the revisions. The Bench ordered that the revisionists were discharged of the offence punishable under Section 2/3 of the Act and the charge framed against them on this count on 21.4.2010 was quashed. Thereafter, another application was moved by the accused persons of this case with a prayer that the court of Special Judge (Gangsters Act) had no jurisdiction to proceed with the case and, therefore, the accused persons should be discharged. After hearing both the parties the learned lower court vide its order dated 29.9.2010 rejected the application. Feeling aggrieved by such rejection the present revision has been filed.

(2.) I have heard Mrs. Swetashwa Agrawal learned counsel for the revisionist, Mr. Anoop Trivedi learned counsel for opposite party no. 2 as well as the learned A.G.A. and perused the records.

(3.) It has been submitted from the side of the revisionist that the Act, only in limited cases, confers jurisdiction upon the special court to try the offences relating to the Act and only then the procedure prescribed in Section 10 of the Act is followed in such cases. The special court can take cognizance of the offence punishable under the Act and which is triable by it without the accused being committed to it for trial. Since in the instant case from the very beginning filing of a chargesheet under Section 3 of the Act has been held to be illegal by this Court, therefore, the matter should be sent back to the court of learned Magistrate who may or may not take cognizance of the case keeping in view the facts contained in the case diary. It has further been submitted that if the Magistrate decides to commit the case to the court of sessions under Section 209 of Criminal Procedure Code (for short 'the Code') only then a cognizance under Section 193 Cr.P.C. can be taken by the learned Sessions Judge and after such cognizance a regular session trial number shall be allotted to the case and, therefore, the applicant will have an opportunity to argue out the matter before the learned Sessions Judge under Section 227 of the Code. It has also been submitted that there are provisions in the Act which permits and commands the special court to adopt a different procedure from the regular procedure prescribed in Indian Evidence Act and the Code while trying routine sessions trials. It has also been submitted that the Act prescribes certain presumptions against the accused in respect of law relating to Indian Evidence Act and the Code. These different provisions of law are, generally speaking, prejudicial to the accused facing trial under the Act and he is denied the benefits which are available to him in respect of the presumptions if the accused is tried under the regular provisions of the Code and the Evidence Act. It has further been submitted that when the application under Section 227 Cr.P.C. was argued for the first time before the lerned Special Judge, the same was considered and disposed of keeping in view the special provisions of the Act and the case of the revisionist was not considered under the general provisions governing a sessions trial keeping in view the law and procedure laid down in the Code and the Evidence Act. This has definitely caused prejudice to the accused persons. It has also been submitted that when this Court has quashed the charges under Section 2/3 of the Act as it has found that no chargesheet should have been filed against the accused persons under Section 2/3 of the Act. My attention has been drawn towards Sections 4, 8 and 10 of the Act. Specific arguments have been advanced from the side of the revisionist with respect to Clauses (a) and (e) of Section 4 of the said Act. In the above background it has been submitted that special case pending before the court of Special Judge (Gangsters Act), Meerut be directed to be sent to the court of learned Chief Judicial Magistrate or any other court of a Magistrate having jurisdiction and direct such Magistrate to proceed in accordance with law as the chargesheet was not filed directly in his court by the prosecution.