Definitions
Gang
The definition of a gang is provided in Section 2(b) of the Act. According to this provision, a gang refers to a group of individuals who engage in anti-social activities, individually or collectively. The purpose of their actions is to deliberately disrupt public order or to obtain unjustified benefits or advantages, either for themselves or for others, using violence, intimidation, coercion, or any other means. The Act explicitly outlines the scope of anti-social activities, which includes offences punishable under Chapter XVI, Chapter XVII, or Chapter XXII of the Indian Penal Code, 1860 (IPC). Additionally, it encompasses various offences under special and local laws, as specified in sub-clauses (i) to (xxv) of Section 2(b). These offences include illegal mining, the sale of illicit liquor, kidnapping for ransom, extortion, and others.Gangster
The term gangster is defined in Section 2(c) of the Act. A gangster can be a gang member, leader, or organizer. This definition also includes individuals who aid, assist, or abet the activities of a gang as outlined in clause (b). The role of a gangster can be played either before or after the commission of the specific act. Additionally, it encompasses individuals who engage in harbouring offenders, such as providing them with food, shelter, or any other form of assistance.Public Servant
The definition of this term can be found in Section 2(d) of the Act. According to this section, the term 'public servant' as used in this Act carries the same meaning defined in Section 21 of the Indian Penal Code (IPC) or any other applicable law. This definition also encompasses individuals who assist the police or state authorities in a lawful manner by providing information, or evidence related to an offence or offender, or any other form of assistance.Powers to Court and Government
This Act grants extensive powers to both the court and the state government to address organized crimes, encompassing the following provisions:Powers of the Court
Under this Act, individuals classified as gangsters, per the provided definition, are subject to imprisonment ranging from two to ten years, along with a minimum fine of 5000 rupees. If a gangster commits a crime against a public servant or a family member of a public servant, they shall be liable for a minimum of three years imprisonment and a fine of at least 5000 rupees. If a public servant engages in the following actions:- Assisting a gangster, either before or after the commission of a crime, whether directly or through intermediaries.
- Failing to fulfil their legal duties in curbing such activities.
- Disregarding court orders or orders from superiors related to this matter.
- Then, such public servants shall be liable for imprisonment ranging from three to ten years, as well as a fine, as per the provisions of this Act.
- The District Magistrate has the authority, under Section 14 of the Act, to order the attachment of any property, whether movable or immovable, if there is reason to believe that the gangster acquired the property through the commission of an offence triable under this Act, regardless of whether a court has taken cognizance of such offence.
- Upon application by a witness or prosecutor, or at its own discretion, the court may take necessary steps to maintain the anonymity of the witness, including concealing their identity and address, to ensure their safety.
- If the court deems it appropriate and records the reasons, it may proceed with the trial in the absence of the accused and record the evidence of a witness. The accused will have the opportunity for cross-examination if they so desire.
Powers to State Government
According to Section 5 of the Act, the State Government can establish special courts throughout the state or specific regions to facilitate speedy trials. The government holds the authority to determine the necessity of such courts. The appointment of the presiding judge for these special courts is carried out by the State Government in consultation with the Chief Justice of the High Court. Additionally, the State Government can appoint additional judges as required. The State Government appoints a Public Prosecutor for the special courts. They also have the discretion to appoint an Additional Public Prosecutor, Prosecutor, or Special Public Prosecutor for specific cases or categories of cases. Through a notification, the State Government can establish rules pertaining to the Act for proper implementation. Section 22 of the Act protects the State Government, its officers, and authorities. They are safeguarded against legal proceedings if their actions were performed in good faith or in compliance with the rules of the Act.
Misuse of the law in UP
The definitions of "gang" and "gangster" in this Act lack precision and a specific procedure for identifying offenders. The broad perspective of these definitions allows virtually anyone to be accused and charged as a gangster under this Act. Courts have observed that cases filed under the UP Gangsters Act, 1986, are sometimes based on false and baseless allegations. These cases are often filed by individuals or even police officials to settle personal scores or grievances. Unfortunately, police officials are not adhering to guidelines and are taking arbitrary actions to exploit the provisions of the Act for their own benefit.
For example, in the case of Kapil Raidas v. the State of Uttar Pradesh (Bail Application no. 6671 of 2020), the accused was charged with multiple cases of theft based on a single recovery of Rs 6600. The amount was divided into different sums, and separate theft cases were framed against the accused. This division of the amount seemed illogical, and it raised questions about the case's viability. The court observed that the police were misusing the Gangsters and Anti-social Activities (Prevention) Act, 1986, as it had become common practice to file multiple cases with false charges to implicate individuals under this Act.
In another case, in Smt. Aalia v. State of Uttar Pradesh (Bail Application no. 23691 of 2021), the court found it unusual to charge a woman under the UP Gangsters Act when only two cases were pending against her. The court ordered the District Magistrate to provide a personal affidavit explaining the reasons for categorizing the woman as a criminal under this Act.
There have been instances where individuals have been labelled as "dreaded criminals" and denied bail under the stringent UP Gangsters Act, only to later discover that false claims were made by police officers, and even nonexistent police stations were mentioned in the cases. These cases shed light on the arbitrary practices followed by police officers.
In another case, a businessman petitioner faced charges under various sections of the Indian Penal Code, 1860, but was not convicted of any offence. The court observed that charging a person under this Act and labeling them as a "goonda" would directly impact their reputation and social standing. The term "goonda" is seen as the opposite of a respected individual and would tarnish their reputation in society. The court emphasized that no person should be charged unnecessarily or without proper evidence under this Act, which is frequently done by police officials.
Some legal experts argue that certain provisions of the Act are unconstitutional. For instance, even for minor offences, the Act mandates a minimum imprisonment of two years, which violates Articles 14, 19, 21, and 22 of the Indian Constitution. These provisions have severe consequences, and individuals suffer greatly even for petty offences. While it is important to have strict provisions, they should be in accordance with the fundamental rights of citizens.
Under this Act, the authority rests solely with the police, and they do not require the sanction of the Executive or Judiciary to charge individuals. This grants police officials the power to use the Act according to their discretion. The Act is often used by the police to reduce the number of pending cases by targeting individuals with a criminal history, coercing confessions from them, and framing them as criminals in those pending cases.
Norms for Gangsters
The Act was enacted to address the increasing incidents of organized crime in Uttar Pradesh, mainly due to the presence of numerous gangsters in the state. However, within six months of its implementation, certain legal gaps and loopholes were identified. One major flaw was the lenient bail policy outlined in the Act, as evidenced by the fact that by September, 475 out of 771 alleged gangsters arrested under this Act had been granted bail successfully. The provisions for bail are specified in Section 19(4)(b) of the Act, which requires the court to consider several factors, including:
- The existence of a prima facie case against the accused;
- The seriousness and nature of the offence;
- The nature of the additional charges;
- The background of the accused.
Recent developments in the Act
The Allahabad High Court recently addressed and dismissed a dozen writ petitions brought forth by Ritesh Kumar, also known as Rikki, and others. The court held that the accused could still be charged under the Uttar Pradesh Gangsters and Anti-Social Activities Act of 1986, even if only one First Information Report (FIR) has been filed against them. According to the court's interpretation, the term 'anti-social activities' mentioned in the Act also encompasses solitary offences, thus, a case can be established based on a single FIR. This judgment was guided by the previous court decisions in Rinku Alias Hukku v. State Of U.P. And Another in January 2000 and Subash v. State of U.P. & Another in 1988. Furthermore, the Yogi government has recently expanded the authority to seize property under the U.P. Gangsters Act, of 1986. Previously exclusive to Commissioners and District Magistrates, this power has been extended to Deputy Commissioners.
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