S.C. Jain and Santosh Kumar Phaujdar, JJ. - (1.) IN the present writ petition the two petitioners have challenged an F.I.R. (Annexure No. 1 to the writ petition) giving rise to Crime No. 295 of 1993 against the petitioner No. 1, Ashok Rai and Crime No. 296 of 1993 against the petitioner No. 2, Jai Prakash, for an offence under Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. For brevity the aforesaid Act hence force shall be described as the Act. The concerned first information report relates to police station Bhanwarkol district Ghazipur, which was lodged on 22.11.1993 at the instance of the Station Officer of the concerned police station. In this writ petition the petitioners crave issuance of a direction in the nature of a writ of certiorari for quashing the first information report (Annexure No. 1 to the writ petition). In the concerned first information report it was alleged that the two petitioners and others had formed a gang under the leadership of the petitioner No. 1 and for temporal and unlawful monitory gain they had committed offences under Chapters, 16, 17 and 22 of the I.P.C. within jurisdiction of the police stations Bhanwarkol, Karenda, Kotwali and Karimuddinpur and they were also engaged in forming unlawful assemblies, looting and capturing election booths etc. Their actions have scared the people to such an extent that they are not ready to open their mouth against these persons. The first information report also gave out a list of ten cases in which one or more of these persons were involved. On contact, the complainant and the witnesses in those cases indicated that these persons have formed a gang under the leadership of Ashok Rai and for making unlawful gain they were indulging in heinous offences as aforesaid.
(2.) IN the writ petition it was stated that the first information report did not disclose any offence under the Act and the petitioners could not be arrested on the basis of such a first information report. The initiation of the first information report itself was illegal and was violative of the provision of Section 154 Cr.P.C. It was further asserted in the writ petition that of the ten cases mentioned in the first information report the first one was of 1985 and the latest was of 1993 and in only one of such cases the two petitioners, were proceeded against together. The writ petition further asserted that there was no gang within the meaning of the definition and a solitary incident of being together could not be a ground for a conclusion of existence of a gang. It was contended that there were no criminal activities alleged against the petitioner No. 2 after February 1993 and there were no allegations against petitioner No. 1 in the case. There was unusual delay in lodging the first information report and it was lodged nine months after the last alleged incident. The writ petition also stated that the petitioners were supporters and workers of the Congress 'I' party and they were working for Virendra Rai, the Congress nominee and the voting was to take place on 21.11.1993. It was further stated that only with an oblique motive the workers of Sri Virendra Rai, i.e. the two petitioners, were proceeded against under Sections 107/117 Cr.P.C. to prevent them for participating in the election. The State came up with a counter affidavit sworn by Anjan Kanti Basu, Station Officer, Police Station Nonahara, Ghazipur, it was alleged in the counter affidavit that during the elections these petitioners and others were trying to capture the booth for a candidate, namely, Sri Virendra Rai. On receipt of such information the police arrested them and they were proceeded against under Sections 107 and 116 Cr.P.C. Only thereafter the concerned first information report was lodged under the Act. It was stated that all the cases mentioned in the first information report were under trial and one or the other accused persons were involved in one or the other of those cases. A crime chart was appended to this counter affidavit.
(3.) REJOINDER affidavit as well was filed on behalf of the present petitioners. It was stated in the rejoinder affidavit that there was no election at Ghazipur on 22.11.1993 but para 24 of the original writ petition admitted that the election were held on 21.11.1993. It was reiterated in this rejoinder affidavit that for one single incident in 1991 there could not have been an inference of the formation of a gang by the petitioners and the first information report, therefore, was not sustainable. In the course of arguments Sri Chaturvedi and Sri M.P. Rai, learned counsels for the petitioners, urged that the single act committed by the two petitioners jointly could not give rise to an inference of formation of a gang and, accordingly, an offence punishable under Section 3(1) of the Act could only be made out if something is done as under Section 2 of the Act by a person as a member of the gang. According to them, formation of gang is the first criterion before a person may be prosecuted for being a gangster. Learned counsels also contended that an offence in which both the petitioners were involved was committed lastly in 1991 and, therefore, an action towards the latter half of 1993 under the Act was only a stale one. Learned A.G.A. stated that the first information report had made out a cognizable case under Section 3(1) of the Act and it cannot be quashed on the grounds raised by the petitioners.;