Reminding the UP Home Department that “selective investigation” and “selective prosecution” are antithetical to the rule of law, the Allahabad High Court recently flagged frequent misuse of powers by the police while invoking stringent provisions of the UP Gangsters and Anti-Social Activities (Prevention) Act against “petty offenders”, saying “actual gangsters and organised crime syndicates” involved in narcotics trade, financial frauds, land mafia activities, remain largely unaffected by a lack of systemic policy response.
The court was hearing a petition filed by one Rajendra Tyagi and two others challenging the Gangsters Act cases against them.
The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, (or Uttar Pradesh Girohband Aur Samaj Virodhi Kriyakalap (Nivaran) Adhiniyam, 1986) was enacted by the state legislature before getting final assent from the President of India the same year.
According to the state government gazette, the Act was “deemed to have come into force on January 15, 1986,” after being passed by the then Congress government led by Chief Minister Vir Bahadur Singh.
The purpose of the Act, the gazette says, was “to make special provisions for the prevention of and for coping with gangsters and anti-social activities and for matters connected therewith or incidental thereto”.
The documentation for applying the Act against an alleged criminal or gang members is done by police personnel, starting from a police station in-charge to circle officer (CO), additional superintendent of police (ASP) and superintendent of police (SP), and the law is finally invoked after getting final approval from the district magistrate (DM) concerned.
However, in the police commissionerate system, the approval is given by the commissioner of police (CP) who functions as the head of “executive magistracy” and supervises the preventive proceedings under certain key provisions of the Code of Criminal Procedure (CrPC) which otherwise are jurisdiction of the DM in a district.
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Key provisions of the UP Gangsters Act
The gazette states that “any person in individual capacity or in association of others indulges in organised crime using violence, threatening, intimidation, coercion or otherwise causes disturbance to the public order with intention to gain undue advantage for himself or any other person can be held accused and booked under the Act to face the provisions and the court trial”.
The key offences described in the Act are “manufacturing and selling of illicit liquor or indulging in peddling dangerous drugs, narcotics or cultivating any plant or organising fraudulent means to dupe people and earn money in contravention of provisions of the Uttar Pradesh Excise Act and Narcotic Drugs and Psychotropic Substances Act, and Public Gambling Act, respectively”.
Other offences punishable under the Act include “grabbing land or other property using force or illegal means, preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, grabbing government or private undertaking contracts threatening contenders, preventing anyone running his/her business, profession, trade or employment or any other lawful activity, preventing or obstructing any public election, physically preventing the voter from exercising his electoral rights, inciting communal violence, creating panic, alarm or terror in public, terrorising or assaulting employees or owners or occupiers of public or private undertaking or factories”.
Also, “inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country” are punishable under this law.
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Moreover, the suspects arrested for crimes like “kidnapping for ransom, transporting or smuggling of cattle and for acts in contravention of the provisions of the Prevention of Cow Slaughter Act and the Prevention of Cruelty to Animals Act” face action under the Act as well.
The offences like “diverting or preventing any aircraft or public transport vehicle from scheduled course and moneylenders or agencies using force to extort or earn money using illegal means in violation of Regulation of Money Lending Act” too can be booked under this law.
The Act is also invoked to “deal strongly” with offences like “human trafficking for purposes of commercial exploitation, bonded labour, child labour, sexual exploitation, organ removing and trafficking, beggary and similar activities”. Offences under the Unlawful Activities (Prevention) Act (UAPA), printing, transporting and circulating of fake Indian currency, indulging in production, sale and distribution of spurious medicines are also covered under the Act.
Those booked for felling of trees, killing of animals for economic gains, smuggling of products in contravention of the Indian Forest Act and the Wildlife Protection Act and offences in violation of Entertainment and Betting Tax Act too are liable to be punished under the Act.
How the police invoke the Act
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According to the rules, there should be a minimum of two accused in two or more cases to be listed as a gang.
A “gang chart” can be prepared with a single crime case as well but should be backed by “strong reasons to be listed as a gang”. In a single case, for instance, a person with the help of associates dupes people of their assets, money using fraudulent means does not need to be named in several cases to be booked under the Gangsters Act, a senior police officer said.
While preparing the “gang chart”, one of the gang members should be listed as the gang leader who has more than one case lodged against them. In the case, the gang leader does not have any other case lodged before, there should be a description of how he is the person who operates the gang.
The gang chart prepared at the police station with the signature of the station house officer (SHO) or the station officer (SO) is forwarded to the DM or the police commissioner (in a commissionerate) after endorsed by the CO, ASP and the SP or officers of the equivalent ranks. The DM or CP then takes the final call before approving the “gang chart” to invoke the Act against the suspects in the case.
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Most stringent section under the Act happens to be 14 (1) which gives power to the DM to attach, seize the properties of the accused. The SHO/SO prepares the list of the assets supposed to be owned by the accused allegedly disproportionate to his known source of income. The police recommend the seizure alleging the accused amassed the properties by earning through criminal activities. The accused is given a time period depending on DM’s discretion to make a claim with genuine documents to release the seized assets or the legal formalities are forwarded to the court.
Why police find the Act effective
In a case filed under the Act, police get a time period of one year to file the chargesheet against the accused. This effectively means the accused stays behind the bars for at least one year. This is in contrast with other offences wherein police have to file the chargesheet within 60 or 90 days.
On petitions challenging the Act’s provisions, the Allahabad High Court and the Supreme Court have issued directives to the state government to intervene, questioning the intent of the police behind keeping the accused in jail for long.
Following the courts’ intervention, the UP director general of police (DGP) had issued a circular to police across the districts asking to file the chargesheets in such cases within six months.
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But the investigating officers were given relaxation to approach the district police chief if they needed more time to file the chargesheet.
A police officer said they still get one year’s time to file the chargesheet by seeking a three-month extension twice.
The court had also ordered that the “gang chart” be prepared by the circle officer and endorsed by the ASP and the SP before it is forwarded to the DM for approval. An official, however, said that now two gang charts are prepared with one carrying the signature of the SHO/SO and the other of the CO, ASP and the SP.
Also, when the Act is invoked, the police station concerned opens the “history-sheet” of the accused and it is not closed even if they are acquitted in all criminal cases filed against them. With the history-sheet opened, the accused always remains under the watch of the police.
