Key Directions to Invoke Gangster Act

It may be recalled that a few months ago last year, we had seen that the Uttar Pradesh State Government had laid down certain clear parameters/guidelines that were pertaining to the invoking of the strict provisions of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 and preparation of gang chart thereunder. It must be disclosed here that the guidelines that were notified on December 2, 2024 had clearly stated that, "It should be ensured that no member of a gang is given benefit of government services, business, lease deeds and government schemes in any situation." We need to note that this big development occurred pursuant to a nudge that came from the top court in April 2024 in the case titled Gorakh Nath Mishra vs State of Uttar Pradesh & Ors., Diary No(s) 2673/2023 of one Gorakh Nath Mishra who was booked under Section 3(1) of the Act. Interestingly enough, it was found by the Apex Court after perusing the case of Gorakh Nath Mishra in detail that the provisions of UP Gangsters Act were not attracted in the case.

It also tagged another case seeking quashing of charges under the law with Mishra's case specifying clearly that the State Government had agreed to revisit all the cases in view of the new proposed guidelines. It also must be borne in mind that the matter was heard by a Bench of Apex Court comprising of Hon'ble Mr Justice Surya Kant and Hon'ble Mr Justice N Kotiswar Singh. The Apex Court Bench clearly held while setting aside the judgment of the Allahabad High Court that, "In light of the guidelines, respondents have considered the case of the petitioner and it has been found that provisions of the Act are not attracted. That being so, the impugned judgment of the High Court is set aside."

Let us now discuss some of the key 29 most commendable guidelines/directions that were issued by the UP State Government in relation to the UP Gangsters Act. They are as follows:-

1. Provisions of the Act be applied only when gangster commits the crime by violence, threat or show of violence or intimidation or coercion etc. as required under Section 2(b) of the UP Gangsters Act alone or in group with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person;

2. In the details of gang-chart this should be mentioned clearly that the crimes mentioned in gang-chart are covered under which sub-section of part B of section 2 of the Gangster Act;

3. Up-to-date status of all the cases mentioned in the gang-chart be clearly mentioned;

4. Complete compliance of the provisions of Rule 5 of the Rules 2021 be made. Those cases be never mentioned in the gang chart, on the basis of which, proceedings under the Act have been conducted earlier against the accused. Whereas, the list of above-mentioned cases shall be enclosed with the Gang-chart given in the specified format under Rule 5;

5. On receiving the case file at the office of the Commissioner of Police/District Magistrate, again end to end perusal of all the facts be made and this be ensured according to rule 5(3)(a) of the Rules 2021 that only after being satisfied by holding a joint meeting with the Senior Superintendent of Police/Superintendent of Police, gang-chart be approved by the Police Commissioner/District Magistrate;

6. The Police Commissioner/Senior Superintendent of Police/Superintendent of Police and the District Magistrate and Nodal Officer, while appending their signatures on the gang-chart shall also ensure to mention the date below their signatures;

7. It should be shown to the satisfaction of the competent authorities that they have applied their mind not only on the gang chart but also on the documents/papers attached with the gang-chart;

8. Date of filing of charge-sheet under the original case should be mentioned in column 6 of the gang chart, except those cases under Rule 22(ii) of the Rules, 2021, where Gangster Act can be invoked during the investigation.

9. As per Rule 8(3) of the Rules, 2021, it is essential to clearly mention the latest status of cases against the gangs shown in the gang chart and the convicts or their trial in the Court. Therefore, the above rule regarding mentioning the latest status of each case on the date of approval of the gang chart should be strictly followed;

10. Under Rule 16(2) Senior Superintendent of Police/Superintendent of Police after going through the recommendation of the Additional Superintendent of Police under Rule 16(1) shall record his satisfaction for approving the same and will forward the same to the District Magistrate or the Commissioner of Police.

11. Under Rule 26(1) of the Rules, 2021, as the case may be, whenever, the chargesheet is sent before the Police Commissioner/Senior Superintendent of Police/Superintendent of Police, for granting the necessary approval under Rule 20, they, unavoidably, shall review the entire record;

12. Investigations of the case from that Police station is not to be done where the matter is registered (If the Station House Officer/Inspector-in-charge of the Police station, of which, the case is registered, reached at that Police station on the basis of work distribution/transfer and is posted at that Police station where the investigations are going on, he doesn't have to investigate that matter after informing the Nodal Officer because in that situation, he takes together the status of both, the complainant and the investigator);

13. It should be ensured that no member of gang is given the benefit of government services, business, lease deeds and government schemes in any situation and wherever necessary, proceedings of attachment of above, appointment of Administrator, suspension of licenses and cancellation and counter offensive should be made;

14. Investigation under this Act should be completed within 6 months. If it is not completed within the specified period, it may be extended maximum for 03-03 months with the approval of District Police In-charge and not beyond that;

15. District Police In-charge should carefully peruse all the facts and evidence collected during the investigation and only thereafter approval be given for filing of charge-sheet/final report in the concerned Court;

16. If deemed fit by the Investigating Officer, police custody remand of gangster be also taken within 60 days.

17. The law enacted in 1986 provides for imprisonment from 2 to 10 years along with a minimum Rs 5000 fine for the violation of the law.

18. However, the minimum jail term increases to 3 years if a gangster commits an offence against a public servant or a public servant's family member.

19. If a public servant provides help or support to a gangster, then that bureaucrat can be punished with a 3 to 10-year jail term.

20. The Act could only be invoked in matters involving serious criminal allegations, not any run-of-the-mill case.

21. The right to life and liberty guaranteed under Article 21 of the Constitution should not be curtailed by invoking such stringent laws merely because criminal cases have been registered against a person.

What also must be underscored and what would be also equally apposite to mention here is that it has been clearly mandated that strict action would be taken against those officers who are found indifferent or ignorant in adhering to the relevant guidelines/Rules. In this context, it would be pertinent to mention here that the Bench of Apex Court comprising of Hon'ble Mr Justice BR Gavai who is now CJI since May 14, 2025 and Hon'ble Mr Justice KV Viswanathan in November 2024 had issued notice on a petition challenging the Constitutional validity of certain provisions of the UP Gangsters Act and UP Gangster and Anti-Social Activities (Prevention) Rules, 2021. It also merits mentioning that the tentative next date of hearing in this leading case is May 20. The UP State Government has in this regard filed the compliance affidavit to ensure the strict compliance of the 29 guidelines/directions that were issued by the UP State Government some of which have been discussed hereinabove read with the 2021 Rules under the Act. Very rightly so! There can be just no denying or disputing it!