S.K.Phaujdar, J.C.Misra - (1.) -In all these matters, the respective petitioners have challenged their prosecution for an offence under Section 2/3 of the U. P. Gangsters and Anti-Social Activities (Prevention) Act (in short 'the Act'). Prayers have been made for quashing the respective F.I.Rs. and for interim orders protecting them from arrest.
(2.) THE questions, that have been raised, may be categorised as follows : 1. THEre could not be prosecution under the Act for a single incident as the Act spoke of "anti-social activities" (in plural). 2. Prosecution under the Act for past offences was not thought of. 3.If at all the Act created a new concept of an offence, there must be some allegation that any act or omission towards the commission of the offence was there. 4.THE words "indulges in" as used in Section 2 of the Act would only mean that there should be habituality of the acts covered by Section 2. In addition to these major points, the individual cases will be dealt with separately. The Act was necessitated with a view to control gangsterism and anti-social activities which were on the increase in the State. The Act was preceded by an Ordinance and the objects and reasons of the Ordinance were quoted by a Full Bench of this High Court in the case of Ashok Kumar Dixit v. State of U. P. and another, 1987 (24) ACC 164 at para 22. We may again quote the object and reasons behind the instant enactment : "Gangsterism and anti-social activities were on the increase in the State posing threat to lives and properties of the citizens. The existing measures were not found effective enough to cope with this new menace. With a view to break the gangs by punishing the gangsters and to nip in the bud their conspiratorial designs, it was considered necessary to make special provisions for the prevention of, and for coping with gangsters and anti-social activities in the State. Since the State Legislature was not in session and immediate legislative action in the matter was necessary, the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Ordinance, 1986 (U. P. Ordinance No. 4 of the 1986) was promulgated by the Governor on January 15, 1986, after obtaining prior instructions of the President. The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Bill, 1986 is accordingly introduced with certain necessary modifications to replace the aforesaid Ordinance." In that paragraph of the judgment itself the Preamble of the Act was also quoted, as below : "An Act to make special provisions for the prevention of, and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto." In the case of Ashok Kumar Dixit (supra), the constitutional validity of different provisions of the Act were discussed threadbare and the Full Bench was of the view that the Act was not ultra vires the Constitution and it was within the legislative competence of the State Legislature to enact the U. P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. We must, therefore, start with the backdrop of this decision in our mind to see if the objections now raised by the petitioners are sustainable.
(3.) IT has been contended before the Full Bench that the Act desired to punish a mere status of a person without there being any actus reus. This contention was negatived and the Court held that a person was not liable to be punished under the Act merely because he happened to be a member of a group. The Court was of the view that under this Act, a person could be accused of an offence only if he had chosen to join a group which indulged in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The element of actus reus was clearly present in the offence created under the statute, as observed by the Full Bench. In paragraph 58 of the judgment, the Full Bench met the argument of the counsel that there would always be an apprehension that a person, though not physically present on the scene of occurrence, could be roped in under the provisions of the Act in relation to that occurrence on the facile ground that he was a gangster. The Court observed that the apprehension was not very real, but it also uttered a word of caution that it could not be dismissed as altogether imaginary or absurd. The Court observed that "Police is sometimes prone to be overzealous and in order to win laurels, books all and one within the range of its rod. Needless to say, the Act has to be enforced in a reasonable manner. Care should be taken that no unnecessary inroad is made into the exercise of fundamental rights of the citizen or interference in the peaceful prosecution of their avocation". In paragraph 59 of the judgment the Court further observed : "Thus, for booking a person under the provisions of the Act, the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.";