Supreme Court Issues Notice On Plea Challenging Constitutional Validity Of Provisions Of UP Gangsters Act, Rules

The Supreme Court yesterday (November 29) issued notice on a petition challenging constitutional validity of certain provisions of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986 and the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021.

A bench of Justices BR Gavai and KV Viswanathan passed the order, upon hearing Senior Advocate R Basant (for the petitioners) who assailed the discretionary powers granted to the police and argued that the police itself is complainant, prosecutor and adjudicator under the Gangsters Act and Rules. The senior counsel informed that the issues were raised in an earlier case as well, where notice was issued, however the issues were subsequently not decided.

Briefly put, the petition has been filed challenging Sections 3, 12,14, 15, 16 and 17 of the Gangsters Act along-with Rule 16(3), Rule 22, Rule 35, Rule 37(3) & (4) and Rule 40 of the Gangster Rules, as violative of Articles 14, 19, 20(2), 21 & 300A of the Constitution of India.

"The impugned provisions of the Gangsters Act and Gangsters Rule miserably fail on the touchstone of Article 14 and the parameters for non-arbitrariness provided therein. The Act gives arbitrary powers to Police/Executive to invoke Gangsters Act against any person on their own satisfaction without any reasonable classification", the plea states.

The petitioners, who have themselves been booked under Section 2/3 of the Gangsters Act, allege that the provisions of the Act are being used as a weapon to wreak vengeance, harass and intimidate them to settle scores of family disputes, even though the Act concerns itself merely with the activities of gangsters which seriously endanger public order.

"The provisions of the U.P. Gangster Act are preventive in nature and cannot be allowed to be used as punitive...The Act was brought to cope with the hardened criminals, and now the Police is invoking the Gangsters Act arbitrarily."

It is stated in that the Gangsters Act and Rules do not provide any classification of accused persons, as such, they are being misused and invoked arbitrarily and discriminately.

"The unfettered discretion is left with the Police/Executive to invoke or not to invoke the Gangsters Act against a person who;

i. has no case against him:

ii. has a single case against him.

ill. has more than one case against him."

Relying on the judgment in Shraddha Gupta v. The State of Uttar Pradesh and Others, the petitioners say that unfettered discretionary powers have been left with the Police/Executive. In this case, it was held by the top Court that Gangsters Act can be invoked even in a case of a single offence/FIR/Charge-sheet, if it is found that the accused is a member of a gang, and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.

It is further alleged that the Allahabad High Court has gone one step ahead (in Irfan and Anr. v. State of Uttar Pradesh and Anr.) and granted discretionary power to the police to register an FIR against a person who is not accused of any offense or against whom there is no base case.

As per the petitioners, the Act empowers a court to not only attach properties of an undertrial accused, but also to forfeit or dispose such property even before the trial under the Act has commenced, or rather before the chargesheet against the accused is filed.

"U/s 14 of the Gangsters Act the District Magistrate may order for the attachment of the property of a person even before the cognizance of the offence punishable under the Gangsters Act is taken by the concerned magistrate and the property of a person U/r 37(3) of the Gangsters Rules may be attached even before the case is registered against that person."

With reference to the principle "no man shall be judge in his own cause", it is further averred,

"The property of a person (whether accused or not)"under section 14 of the Gangsters Act r/w rule 37 of the Gangsters Rules may he attached by the order of Commissioner/District Magistrate and representation for release of the property is to be filed before the Commissioner/District Magistrate who is also the adjudicator under Rule 40 of the Gangsters Rules."

"A person who has not involved in any crime may be booked under the Gangsters Act and the Gangster words with attached to his name has live with this tag whole of his life and this will amount to violation of his right under Article 21 of the Constitution of India" the plea adds.

In the facts of their specific case, the petitioners also seek quashing of the FIR registered against them, as well as of the orders of attachment passed by Police Commissioner (Basmandi, Daliganj, Lucknow) in respect of their residential house and agricultural land. The Allahabad High Court upheld these orders.

The petition has been filed through Advocate-on-Record Manish Kumar Gupta.

Case Title: SIRAJ AHMAD KHAN AND ANR. Versus STATE OF UTTARPRADESH AND ANR., W.P.(Crl.) No. 452/2024