This article is penned down by Pranjali Aggarwal, a student of the University Institute of Legal Studies, Panjab University, Chandigarh. This article deals with Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act 1986, its provisions and lacunas, similar laws passed by various states to combat organized crimes, and other measures that can be taken to subdue mafia activities.
The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act was introduced by Chief Minister Vir Bahadur Singh, in 1986. The Act got the assent from the President on March 19, 1986, but it is deemed that it came into force on 15 January 1986. The prime motive of the Act was to book 2500 well-known gangsters of the state and to put them behind bars so as to curb such organized crimes and anti-social activities that disturb the tranquillity of the state.
Important definitions under the Act
- The word gang has been defined under Section 2(b) of the Act.
- According to this provision gang basically means a group of people who engage in anti-social activities either individually or collectively.
- And want to intentionally hamper public order or try to gain any undue benefit or advantage either for himself or any other person through violence or intimidation or coercion or in any other way.
- Anti-social activities have been explicitly mentioned under this Section and it encompasses offences that are punishable under Chapter XVI or Chapter XVII or Chapter XXII of Indian Penal Code,1860 (IPC) and covers almost all the offences under special and local law as enumerated under sub-clause (i) to sub-clause (xxv) of Section2(b) like illegal mining, sale of illicit liquor, kidnapping for ransom, extortion, etc.
- The word gangster has been defined under Section 2(c) of the Act.
- The person can either be a member or leader or organizer of a gang.
- And includes any person that abets or assists in any activity of a gang as mentioned under clause (b).
- The person can play his role either before or after the commission of the Act.
- Or the person who indulges in harbouring the offender (for eg- providing food and shelter to the offender or aiding him any other way).
- This term is defined under Section 2(d) of the Act.
- According to this Section, the term ‘public servant’ under this Act has the same meaning as under Section 21 of the IPC or any other law enforced for the time being.
- And it also includes the person who is helping the police or state authorities lawfully by giving information or evidence regarding offence or offender or any other manner.
About the UP Gangsters Act – powers given to the court and government
This Act provides a broad spectrum of powers to the court as well as state government to deal with organized crimes which are as follows:
Powers of the Court
- Under this Act, if any person who is a gangster as per definition is liable for imprisonment of either description varying from two to ten years and also a fine of a minimum of 5000 rupees.
- If the gangster commits a crime against a public servant or any family member of a public servant then that person shall be liable for imprisonment of a minimum of three years of either description and a fine of a minimum of 5000 Rupees.
- In case it is found that any public servant:
- provides assistance to gangster either before or after the commission of crime and assistance can be directed by him or through others;
- or if he does not perform the legal duty that he is bound to perform in order to curb such activities;
- or if he does not comply or follow the orders laid down by a court or any senior-related to this aspect.
Then such public servants shall be liable under this Act for the imprisonment of either description ranging from three years to 10 years and also fine.
- The District Magistrate can order attachment of any property whether movable or immovable if he has the reason to believe that the property is acquired by the gangster through the commission of an offence which is triable under this Act irrespective of the fact that the cognizance of such offence is taken by any court or not as per Section 14 of the Act.
- If the court receives an application by a witness or prosecutor or according to its motion can take requisite steps to maintain anonymity regarding the identity and address of the witness to ensure the safety of the witness.
- If the court finds it fit according to the reasons that are to be recorded, then it may order to proceed with the trial in the absence of the accused and even evidence of a witness can be recorded; the only condition is that he can be called again for cross-examination if the accused wants.
Powers of the State Government
- Section 5 of the Act, gives the power to the State Government to establish special courts for the whole or any part of the state for the purpose of speedy trial. This can be done by the government wherever it seems necessary.
- The appointment of the presiding judge is done by the State Government with the consent of the Chief Justice of the High Court and can also appoint additional judges as per the requirement.
- The State Government shall appoint a Public Prosecutor for special courts and even can appoint an Additional Public Prosecutor or Prosecutor and Special Public Prosecutor for any particular case or class of cases.
- The State government can make rules for the purpose of this Act by notification.
- The State government or any officer or authority of state government are protected as per provision of Section 22 and no legal proceeding can be filed against them if they acted in good faith or to comply with the rules of the Act.
Misuse of the law in UP
The definitions of gang and gangster under this Act are loosely developed. They do not have any precise procedure or formulae to allege a person as an offender. This definition in itself has a wide perspective. According to the definition, virtually anybody can be framed under this Act and charged as a gangster. In various cases, it is being observed by the courts that canard cases that are based on bald and fictitious allegations are filed under UP Gangsters Act, 1986. These kinds of cases are mainly filed by people or police officials to settle their personal scores or grudges. Even police officials are not complying with the guidelines and are taking arbitrary actions to exploit the provisions of the Act for their own good.
For instance, in the matter of Kapil Raidas v. the State of Uttar Pradesh (Bail Application no. 6671 of 2020), the accused was charged under five (similar) cases. It was alleged that he committed theft and Rs 6600 was recovered from him. On the basis of this single recovery, the amount was divided into Rs 1600, Rs 1800, and Rs 3200, and three cases of theft were framed against him. This scenario of dividing the amount seemed very absurd. On the basis of the single recovery, the Investigating Officer knew the exact amount pertaining to each theft. Thus, the viability of the case so framed against the accused was questioned and as the deliberate intention of the police to misuto the Act came forward the accused was granted bail. In this case, Hon’ble Justice Dinesh Kumar observed that police is prima facie misusing the Gangsters and Anti-social Activities (Prevention) Act,1986 thoroughly as it has become a general practice that police file several cases against the accused on the basis of the false, fake, or bogus charges to just implicate him under this Act as this was not the only case in which such scenario came up.
In another case of Smt. Aalia v. State of Uttar Pradesh (Bail Application no. 23691 of 2021), Hon’ble Justice Vivek Kumar held that it was unusual to frame the lady under the UP Gangsters Act as only two cases were pending against her in this case. The Court even ordered that the District Magistrate should submit a personal affidavit stating the reasons why the lady was remarked as criminal under this Act as only two cases were pending against her.
In the case before Allahabad High Court, the accused was claimed to be a ‘dreaded criminal’. He was denied bail for three months as he was booked under the stringent UP Gangsters Act in the police station of District Amroha. On further investigation, it was revealed that police officers falsely claimed him to be a dreaded criminal and the Akbarabad police station mentioned for the purpose of the case does not even exist. Thus, this case unveils the capricious practices followed by the police officers.
In another case, the petitioner was a businessman against whom a single case was filed under various sections of IPC,1860 that were Sections 364A, 302, 404, 201, 120B but he was not convicted of any offence in this case. The Court observed that charging the person under this Act and categorizing him as ‘Goonda’ will directly impact a person’s reputation and social standing. The term ‘goonda’ is perceived as the antithesis of the reputed person and thus it would taint his reputation in society. This will naturally vitiate his fundamental right because the Right to reputation is enveloped under Article 21- Right to Life as decided in the case of Subramanian Swamy v. Union of India, Ministry of Law & Others (2016). So it was held by the court that no person should be charged unnecessarily or without proper evidence under this Act which is being frequently done by police officials.
Daya Shankar Misra, an advocate of the Allahabad High Court is of the view that some provisions of the Act are ultra vires of the Constitution of India. For instance, in the case of minor offences also the minimum imprisonment provided is two years which makes it violative of Articles 14, 19, 21 and 22 of the Constitution of India. Thus, these provisions lead to grave consequences and people suffer egregiously in the case of petty offences. No doubt, these provisions are made strict but these should be in accordance with the fundamental rights of the citizens.
In this Act, the authority is solely in the hands of the police and they do not require any sanction of the Executive or Judiciary to charge the person. This allows police officials to use the Act according to their will. This Act is used by police to reduce the number of pending cases. They pick up random people who already have a criminal history and force them to give confessions and then frame them as criminals in those pending cases. This elucidates the fact that the police are clearly using this Act as per their whims for their advantage as stated by the lawyer in the interview with The Economic Times.
“Bail, not jail” norm for gangsters
The Act was formulated to redress the issue of hike in organized crimes in the state of Uttar Pradesh because of several gangsters present in the state. The legal lacunas and loopholes were realized within six months of the passing of the Act. The major cavity that existed was the easy bail policy in the Act as by September, 475 of 771 alleged gangsters arrested under this Act were able to get the bail successfully. The provisions for bail are mentioned under Section 19(4)(b) of the Act according to which the court should consider all these aspects:
- Prima facie case against the accused
- Gravity and nature of the offence
- Nature of the supplementary charge
- Background of the accused
And if the Court is satisfied that the accused, if released on bail, will not engage in any anti-social activities and will not endanger the peace of the society, then the accused can be granted bail. But the callous and careless behavior administered by the police aids the accused in obtaining bail in these cases. Police act casually and do not indulge in proper digging of the cases against the accused. Despite the fact that information is available at their fingertips because of technology, still incomplete gang charts are being submitted by the police in the cases filed under the U.P. Gangsters Act. This behavior of police makes it very convenient for the accused to obtain bail in such cases as half-baked information does not present them as a potential threat to society. This observation was made by the Honorable Allahabad High Court in the landmark case of [email protected] v. the state of U.P (Bail Application No.-14323 of 2021).
Recent developments in the Act
The Allahabad High Court recently observed and dismissed 12 writ petitions filed by Ritesh Kumar alias Rikki and others stating that even if there was only a single FIR filed against the accused then also the accused can be charged under Uttar Pradesh Gangsters and Anti-Social Activities,1986. The Court held that even though the word used is ‘anti-social activities’ but it also includes the singular aspect and the case is maintainable on the solitary FIR also. The High Court relied on the judicial precedent of Rinku Alias Hukku v. State Of U.P. And Another on 12 January 2000 and Subash v. State of U.P. & anr:1988 SCC Online All 973 to conclude this judgment.
Recently powers have been given to Deputy Commissioners also by the Yogi government to attach the property but only in the territories of Noida and Lucknow under U.P. Gangsters Act, 1986. This power was earlier vested only with Commissioners and District Magistrates.
Laws related to organized crime in other states of India
Organized Crimes refer to the crimes in which several people are involved in the commission of the offence and they have their specific roles and tasks which they have to perform for the commission of an offence. Drug smuggling, human trafficking, brothels are some of the examples of organized crimes. In India, there is no particular national law to combat organized crime but the offenders can be charged under Section 120B (Criminal Conspiracy) of IPC, The National Security Act,1980, The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988, The Immoral Traffic (Prevention) Act 1867, etc. Several states like Maharashtra, Haryana, Gujarat, Andhra Pradesh, Karnataka, Telangana have introduced their own statutes to control the organized crimes. This power to introduce laws to maintain peace and tranquillity among the public has been given to the state governments under the 7th Schedule of the Constitution of India.
The Maharashtra Control of Organized Crime Act, 1999
The prime objective for which the MCOCA Act,1999 was instituted was to regulate and battle against the rising cases of organized crime and terrorism. This law has deterrent provisions like the power to intercept wire, electronic or oral communication in order to stop the commission of the offence and arrest the offenders at the embryonic stage only. Under this Act, the confession before the police officer can be used as evidence. The cases are tried by special courts.
Punishment for the offender under this Act is as follows-
- If the death of any person is caused in the consequence of the offence committed then the accused is liable for death or life imprisonment with a fine of Rs. One lakh.
- In other cases, like where death is not caused, a person who intentionally abets or conspires, any person who harbours or conceals the offender, etc) the punishment varies from five years to imprisonment for life and a minimum fine of Rs. five lakhs.
The Union Ministry of Home Affairs ordered the application of this Act in the National Capital Territory of Delhi also in the year 2002.
The Karnataka Control of Organised Crime Act, 2000
The Karnataka Control of Organised Crime Act, 2000 is modelled on the Maharashtra Control of Organized Crime Act 1999 to overcome the upsurge of unlawful activities in the state. After the 2009 Amendment, terrorist activities have also been included under the definition of organized crimes. Under this Act, organized crime has been defined under Section 2(e) which states that any continuing unlawful activity which is committed by an individual either singly or jointly with the purpose to achieve any pecuniary benefits or to hamper public peace by the use of coercion, intimidation, etc. The punishment propounded under this Act is similar to that propounded by the MCOCA,1999. This Act also has the provision for the formation of special courts and interception of telephones. In the year 2017, the Act was used in the murder case of Gauri Lankesh and 17 persons were arrested.
Several other states like Gujarat (Gujarat Control of Organised Crime Act,2003), Telangana (Telangana Control of Organized Crime Act, 2001), Andhra Pradesh (Andhra Pradesh Control of Organized Crime Act,2001), Haryana (Haryana Control of Organized Crime Act, 2019) have passed the similar legislatures to combat organized crimes in their states which are almost verbatim of the Maharashtra Act.
Control of mafia activities in the country – what more can the law do
The following measures can be taken by the government to control and eradicate the rising mafia activities in the country:
- A National Act can be formulated so that there is a uniform system to combat the menace of organized crimes and no person can escape the liability because of irregularities in the Act.
- As these crimes involve a large group of people, it is very difficult to collect evidence against all the people. Thus, police personnel need to have more powers and resources to facilitate proper and intensive investigation on the matter.
- These crimes are not particularly related to one state but spread throughout the country. So, a mechanism of state coordination should be set up where all the information regarding these crimes could be shared. This will help in the prevention of organized crimes.
- Ordinarily, trucks and containers are used to smuggle goods, weapons, and other related stuff. So strict watch should be kept on such vehicles to mitigate their use in organized crimes.
- The cases should be disposed of speedily so that prospective threats to society could be abated. In order to do that more special courts dealing with organized crimes should be incorporated.
- The technology should be put into use to increase surveillance and monitor such mafia activities in the country. Moreover, the evidence obtained electronically would be more reliable than the oral evidence and thus will aid in the conviction of gangsters.
- More undercover operations with the help of the investigating agencies can be initiated to infiltrate among the offenders which will help to discover the mastermind of the plan or to avoid potential offences.
- Public awareness should be created so that they help in preventing organised crimes. A vigilant citizen can help to locate anti-social activities. In some cases where the gang mafias become a legend for some people and people follow them blindly, the awareness will also help to curb these instances.
- Mass media should play its role to expose organized crime and acquaint the general public against such illicit happenings in the country so that the public can play its role to combat the issue.
- Generally, these mafia activities are operational even cross-borders so the system of international cooperation should be set up to fight against the crime together. The countries could set up uniform policies to apprehend such criminals.
The anti-social and unlawful activities are ramping up day by day in the country. No doubt several measures have been employed to abate such crimes but in reality, these Acts are not enough to eradicate the issue because these activities have percolated deep down in the country. The target for the action taken should be to eradicate the problem from the roots so that it is not capable of growing again. The Gangsters Act, no doubt has stringent measures to overcome the mafia activities but it has various loopholes that favour the accused and thus the purpose of the Act remains unfulfilled. The precise definitions of gangster and gang should be propounded so that no guilty person can escape the punishment. The provisions should be checked and loopholes should be tightened so that it is not misused by the police. The procedure for speedy disposal of the cases should be laid down and other measures should be incorporated to combat such crimes. The collective effort and coordination of all the stakeholders can surely pave the way to get rid of the mafia activities from the country.
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