SHAUKIN Vs. STATE OF U.P. AND ORS.

JUDGEMENT

(1.) Heard learned counsel for the applicant and learned AGA appearing on behalf of State and perused the record. The instant writ petition has been filed on behalf of the petitioner with a prayer to quash the first information report dated 27.9.2018 lodged against him by the respondent no.2 vide Case Crime No. of 201 under sections 3(1) U.P. Gangsters & Anti-social Activities (Prevention) Act 1986, Police Station , District Shamli during the pendency of trial.

(2.) It is submitted by the learned counsel for the petitioner that a case was registered under section 3/4 Public Gambling Act 1986 on 18.8.2018 vide Case Crime No. 478 of 2018 against nine persons inclusive of the petitioner. In the said first information report it has been divulged that in the house of co-accused Abid, the petitioner and accused persons were indulged in gambling activities. Against co-accused Abid two more cases were registered on the same day vide Case crime No. 479 of 2018 under sections 3/25 Arms Act and Case Crime No. 480 of 2018 under sections 30 Arms Act respectively. In both the cases, petitioner was neither named nor arraigned as an accused. The petitioner moved an application in the aforesaid case and was granted bail by the court below vide order dated 20.8.2018. The respondent authorities could not digest the liberation of the petitioner and lodged the first information report dated 27.9.2018 under section 2/3 U.P. Gangsters and Anti-social Activities (Prevention) Act 1986 against the petitioner and eight others contending that they had committed offence under section 2/3 of the Public Gambling Act. The offence under the Gambling Act has been included and defined under section 2 (vi) of the Gangsters Act which covers only the offence under section 3 of the Public Gambling Act and not any offence under section 4 of the Public Gambling Act and therefore, the petitioner cannot be held liable to any prosecution under the Gangsters Act. Section 3 of Public Gambling Act pertains who is owning, keeping and having charge of the gambling house and according to the FIR, the co-accused Abid is the owner of the gambling house from where the petitioner and other persons were arrested as such the petitioner does not fall within the ambit of Gangsters Act. A person is not liable to be punished under the Gangsters Act merely because he happens to be a member of a group. He comes within the clutches of the Act only if he chooses to join a group which indulges in anti-social activities defined under the Act with use of force for gaining material advantage to himself or any other person. No element of actus reus is clearly present in the offence alleged to have been committed by the petitioner. Learned counsel for the petitioner has drawn attention to section 2 of the Gangsters Act which defines as under :

(3.) From the bare perusal of above, it is evident that the persons forming group may be said to be a gang if they by use of violence, threat, show of violence, intimidation, coercion or otherwise with the object of disturbing public order or if unlawfully gaining temporal, pecuniary, material or other advantages either for himself or for any other person indulged in any of the anti-social activity enumerated under sub-clause (i) to (xv) of clause (b) and those persons indulging in aforesaid activities as member, leader, organizer of the gang may be treated as gangster and may be liable for punishment under Section of the Act hence the impugned FIR is liable to be quashed.