Writ Petition (Crl.) No. 100 of 2010. Case: Dharmendra Kirthal Vs State of U.P. and Anr.. Supreme Court (India)

Case NumberWrit Petition (Crl.) No. 100 of 2010
CounselFor Appellant: Dinesh Kumar Garg, Ritu Puri Bala and Abhishek Garg, Advs. and For Respondents: Irshad Ahmad, AAG, Raman Yadav and Archana Singh, Advs. for Kamalendra Mishra, Adv.
JudgesH.L. Gokhale and Dipak Misra, JJ.
IssueUttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 - Sections 2, 3, 5, 5(1), 7, 7(1), 7(2), 8, 8(1), 10, 11, 12, 19, 19(4), 19(5); Terrorist Affected Areas (Special Courts) Act, 1984; Narcotics Drugs and Psychotropic Substances Act, 1988; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; ...
Citation2013 (3) ACR 3421, 2013 (VIII) AD (SC) 568, AIR 2013 SC 2569, 2013 (83) ALLCC 111, 2013 AllMR 3275 (Cri), 2013 (3) ALT 82 (Cri), JT 2013 (11) SC 523, 2013 (9) SCALE 729, 2013 (8) SCC 368
Judgement DateAugust 02, 2013
CourtSupreme Court (India)


Dipak Misra, J.

1. In this writ petition preferred under Article 32 of the Constitution of India, the Petitioner who is undergoing trial before the learned Special Judge, District Baghpat, U.P., has called in question the constitutional validity of number of provisions of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 (Act 7 of 1986) (for short "the Act") being violative of Articles 14, 21, 22(4) and 300A of the Constitution of India and further prayed for issue of a writ of certiorari for quashment of the First Information Report dated 2.5.2010 giving rise to Crime No. 100 of 2010 registered at Police Station Ramala, District Baghpat.

2. At the very outset, it is imperative to state that this Court, on 20th September, 2010, while issuing notice, had passed the following order:

Issue notice in regard to the validity of Section 12 of the U.P. Gangster & Anti-Social Activities (Prevention) Act, 1986.

Regard being had to the aforesaid, we shall only dwell upon and delve into the constitutional validity of the Section 12 of the Act.

3. It is necessary to state here that the validity of the Act was called in question before the High Court of Judicature at Allahabad and a Full Bench of the High Court in Ashok Kumar Dixit v. State of U.P. and Anr. AIR 1987 All 235 upheld the constitutional validity and dismissed the writ petition. The assail to the constitutional validity travelled to this Court in Subhash Yadav v. State of U.P. and Anr. Writ Petition (Crl.) No. 317 of 1987 dt. 9.12.1987 and a two-Judge Bench of this Court referred the matter to the Constitution Bench by stating thus:

Heard learned Counsel for the parties at some length.

We are informed that the question of vires of the Terrorist Affected Areas (Special Courts Act) 1984, is pending before a Constitution Bench. In the light of this, in our opinion, it would be proper that these matters wherein the constitutional validity of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, is challenged, should also be heard by the Constitution Bench.

4. When the matter was listed before the Constitution Bench along with connected matters, the larger Bench in Kartar Singh v. State of Punjab (1994) 3 SCC 569 observed as follows:

Though originally, a number of other matters falling under various Acts such as the U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986 (U.P. Act 7 of 1986), the Prevention of Illicit Traffic of Narcotics Drugs and Psychotropic Substances Act, 1988 and some provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), were listed for hearing, we have fully and conclusively heard only the matters pertaining to the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976.

5. Thus, the constitutional validity of the Act was not decided by the said Constitution Bench. Thereafter, the matters relating to this Act were placed before another Constitution Bench. The Court, in Subhash Yadav v. State of U.P. and Anr. (2000) 10 SCC 145, took note of the challenge and the decision rendered in Ashok Kumar Dixit (supra) and observed thus:

3. We had started hearing arguments in the writ petitions when the matters remained part-heard. We have now been informed that Subhash Yadav, Petitioner in Writ Petition (Crl.) No. 317 of 1987 was discharged by the trial court as early as on 3-4-1990 while Amar Mani Tripathi, Petitioner in Writ Petition (Crl.) No. 407 of 1987 was acquitted by the trial court on 20-5-1992. Learned Counsel for Jitender, Petitioner in Writ Petition (Crl.) No. 562 of 1987 submits that despite numerous attempts made to contact the Petitioner and find out about the position of the criminal case against him, there is no response. Learned Counsel has, therefore, reported no instructions to pursue the writ petition any further.

4. In view of the developments which have taken place by the discharge of Petitioner Subhash Yadav and acquittal of Petitioner Amar Mani Tripathi and no instructions having been reported on behalf of Petitioner Jitender, nothing survives for consideration in these writ petitions, as the exercise to determine the constitutional validity of the Act, would now be only of an academic interest insofar as these cases are concerned. Writ Petitions (Crl.) Nos. 317 and 407 of 1987 are, therefore, dismissed as infructuous while Writ Petition (Crl.) No. 562 of 1987 is dismissed for non-prosecution.

6. In view of the aforesaid position, the constitutional validity of the Act is still alive, but as a restricted notice was issued pertaining only to the validity of Section 12 of the Act and the learned Counsel for the parties confined their submissions in that regard, we would, as stated earlier, address ourselves singularly on that point. Be it noted, Section 12 of the Act provides that the trial under the Act of any offence by special court shall have precedence over the trial of any other case against the accused in any other court and shall be concluded in preference to the trial of such other case and accordingly trial of such other case shall remain in abeyance.

7. We have heard Mr. D.K. Garg, learned Counsel for the Petitioner, and Mr. Irshad Ahmad, learned Additional Advocate General for the State of U.P.

8. Assailing the validity of the said provision, Mr. Garg, learned Counsel for the Petitioner, has raised the following contentions:

(a) The provision frustrates the basic tenet of Article 21 of the Constitution as has been interpreted by this Court to encapsulate in a sacrosanct manner the concept of speedy and fair trial, for the trial before the other courts are kept in abeyance and precedence is given to the trial before the special courts under this Act as a consequence of which the trial in other Court does not take place.

(b) The precedence conferred on the cases before the special courts tantamounts to illegal detention of an accused as he is deprived of his liberty as the trial in other cases are not allowed to proceed and the accused is compelled to languish in custody.

(c) The detention which is virtually in the nature of a preventive detention violates Article 22(4) of the Constitution.

(d) The accused, who is tried by the special courts under this Act, is treated differently because trial in other courts are kept in abeyance whereas the accused tried by other courts gets the benefit of speedy trial. There is no justification to treat the accused under this Act in such a manner as it violates the equal treatment before the law as envisaged under Article 14 of the Constitution.

9. Mr. Irshad Ahmad, learned Additional Advocate General for the State of U.P., resisting the aforesaid preponement, contended as follows:

(i) The submission that the fundamental concept of speedy trial is throttled and stifled is neither correct nor sustainable as, on the contrary, the purpose of the legislature is to guarantee speedy trial by providing the precedence of the trial under this Act over other cases and keeping other cases before other courts in abeyance. From the scanning of the scheme of the Act, the emphasis on speedy trial is luminous and, hence, the ground urged on this score deserves to be repelled.

(ii) The liberty of the accused is not jeopardized but schematic canvas and conceptual interpretation would reveal that the command of the legislature is for speedy trial and further there are provisions for grant of bail.

(iii) The contention that it is in the nature of preventive detention has no legs to stand upon as preventive detention and detention in connection with the crime under the Act have different connotations altogether.

(iv) The accused in other cases, who is not tried under this Act, stands on a different footing altogether and such a classification is permissible in the constitutional backdrop and, therefore, it does not invite the frown of Article 14 of the Constitution.

10. To appreciate the rival submissions raised at the Bar in their proper perspective, we think it seemly to refer to the Statement of Objects and reasons of the Act which is as follows:

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...

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