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Vinay Kumar Lath v/s State of U.P. & Others

    Criminal Misc. Writ Petition No. 23815 of 2013

    Decided On, 16 July 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE AMRESHWAR PRATAP SAHI & THE HONOURABLE MR. JUSTICE BACHCHOO LAL

    For the Petitioner: Chandrakesh Mishra, Daya Shankar Mishra, Dharmendra Prasad, Prashant Vyas, Advocates. For the Respondents: Govt Advocate.



Judgment Text

Amreshwar Pratap Sahi, Bachchoo Lal, JJ.

Heard Sri Gopal Chaturvedi, learned Senior Counsel assisted by Sri Prashant Vyas for the petitioner and Sri Ajit Ray, learned counsel for the State.

The petitioner has preferred this petition for quashing of the FIR that was registered against him under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The FIR was lodged at Police Station- Cantt Nagar, Gorakhpur on 29th October, 2013.

The submission is that there

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is no material to establish that the petitioner is a member of any gang, or has otherwise indulged into any such activity which may even prima facie establish the status of the appellant as a Gangster for committing any anti-social activity in terms of the 1986 Act. Sri Chaturvedi submits that as is evident from the pleadings that have been brought on record, the FIR dated 29th October, 2013 has nowhere led to the filing of any police report against the petitioner till date, and therefore, this clearly establishes the absence of any material on the basis whereof a case for prosecution is made out. This Court while proceeding to dismiss the writ petition on 04.12.2013 had not considered the aforesaid aspects, as a result whereof, the appellant had approached the Apex Court assailing the said order in Criminal Appeal No. 977 of 2016 that was allowed on 4th October, 2016 whereby the judgment dated 04.12.2013 was set aside and this Court was requested to dispose of this petition within a period of six months.

From the order sheet, it appears that the file remained under nomination after the judgment of the Apex Court and on 7th March 2018, the SSP Gorakhpur was directed by a Division Bench of this Court to file a response which should be in the form of a personal affidavit.

The said affidavit captioned as a compliance affidavit was filed by the SSP, Mr. Shalabh Mathur and in paragraph no. 13 thereof, it has been stated that the investigation of the present case is still pending and likely to be concluded within few days. This has been repeated in paragraph no. 16 of the said affidavit. An affidavit in response to the aforesaid compliance affidavit of the SSP captioned as counter affidavit was filed by the petitioner on 9th July, 2018 denying the contents thereof and in paragraph no. 12, it was asserted that the investigation has not yet been concluded. This fact has been repeated in paragraph nos. 13, 15 and 18 of the said affidavit. In order to clarify the aforesaid fact of the pendency of the investigation, we had also called upon the petitioner to file an affidavit categorically stating about the status of the filing of the police report, if any. Today an affidavit has been filed along with a question answer which is Annexure No. 1 to the affidavit from the Court of the concerned Additional District Judge stating therein that no police report has been filed as yet.

We express our deep concern about this state of affairs, inasmuch as, the First Information Report is of October, 2013 and almost five years have passed by with the investigation not having concluded. Not only this, the petitioner who had approached the Apex Court after the dismissal of the present writ petition was granted relief to the extent of the setting aside of the dismissal order with a clear observation that the petitioner shall make himself available for investigation as and when required. This happened in the year 2016 whereafter almost two years have passed by. Added to this misery and the careless state of affairs of investigation is the fact that the Senior Superintendent of Police, Gorakhpur has filed an affidavit in April, 2018 before this Court confirming and promising that the investigation shall be concluded within a few days. It is surprising that inspite of this undertaking before this Court, the Senior Superintendent of Police has been unable to convey anything further nor any information is coming forth from the concerned Investigating Officer inspite of a written request sent by the learned AGA as informed on 10th July, 2018 when the matter was previously taken up before this Court.

We, however, find from the order of the Apex Court that when the earlier judgment was set aside, observations were made that no reasons had been given and the High Court had without considering the material on record in proper perspective had dismissed the writ petition.

In order to ensure this and the aforesaid facts coming on record, we find it necessary to peruse the case diary pertaining to the investigation and for that we direct the SSP Gorakhpur to forthwith direct the concerned Investigating Officer to be present in this Court along with the case diary on 19th July, 2018.

The learned AGA shall dispatch this order forthwith today to the SSP Gorakhpur bringing to his personal notice and acknowledging the same through FAX in order to ensure compliance of this order or else on the next occasion we may propose to take action against the police officials.

Put up this case on Thursday i.e. 19th July, 2018.

Interim order dated 06.12.2017 shall continue. Copy of the order today.

O R