Dharmendra Kirthal Vs State of U.P. & Anr.

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 100 OF 2010

Dharmendra Kirthal ... Petitioner

Versus

State of U.P. and another ... Respondents

J U D G M E N T

Dipak Misra, J.

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.

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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

another1 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 another2

and a two-Judge Bench of this Court referred the

matter to the Constitution Bench by stating thus: -

1 AIR 1987 All 235 2 Writ Petition (Crl.) No. 317 of 1987 dt. 9.12.1987

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“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 Punjab3

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

3 (1994) 3 SCC 569

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Yadav v. State of U.P. and another4, 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 4 (2000) 10 SCC 145

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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

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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.

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9. Mr. Irshad Ahmad, learned Additional Advocate

General for the State of U.P., resisting the aforesaid

proponements, 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

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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 conspiratoral 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 action in the matter was necessary, the Uttar Pradesh Gangsters and Anti-social Activities (Prevention) Ordinance 1986 (U.P. Ordinance No. 4 of 1986) was promulgated by the Governor on January 15,

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1986, after obtaining prior instructions of the President.

The Uttar Pradesh Gangsters and Antisocial Activities (Prevention) Bill, 1986 is accordingly introduced with certain necessary modifications to replace the aforesaid Ordinance.”

11. The Preamble of the Act reads as follows: -

“An Act 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.”

12. Reference to the Statement of Objects and Reasons

and the Preamble of the Act is meant to appreciate

the background and purpose of the legislation. In

this context we may refer with profit to the dictum in

Gujarat University and another v. Shri Krishna

Ranganath Mudholkar and others5, where the

majority observed as follows: -

“Statements of Objects and Reasons of a Statute may and do often furnish valuable historical material in ascertaining the reasons which induced the Legislature to enact a Statute, but in interpreting the Statute they must be ignored.”

13. In Shashikant Laxman Kale and another v.

Union of India and another6, a three-Judge Bench

of this Court has expressed: - 5 AIR 1963 SC 703 6 AIR 1990 SC 2114

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“For determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide a remedy for the then existing malady.”

14. In New India Assurance Co. Ltd. v. Asha Rani

and others7, the Court referred to the Statement of

Objects and Reasons of the Motor Vehicles

Amendment Act, 1994 to understand the purpose

behind the legislation.

15. The Statement of Objects and Reasons and Preamble

make it quite clear that the Legislature felt the

compulsion to make special provisions against

gangsterism and anti-social activities. While

speaking about terrorism, the majority in Kartar

Singh (supra) opined that it is much more rather a

grave emergent situation created either by external

forces particularly at the frontiers of this country or

by anti-nationals throwing a challenge to the very

existence and sovereignty of the country in its

7 (2003) 2 SCC 223

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democratic polity. The learned Judges put it on a

higher plane than public order disturbing the “even

tempo of the life of community of any specified

locality” as has been stated by Hidayatullah, C.J., in

Arun Ghosh v. State of West Bengal8.

16. The present Act deals with gangs and gangsters to

prevent organized crime. Section 2 of the Act is the

dictionary clause. Section 2(b) defines the term

“gang” and we think it apt to quote the relevant part

which is as follows: -

““Gang” means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities”

After so defining, the legislature has stipulated the

offences which are punishable under the Act, but they

need not be referred to.

17. The term “gangster” has been defined under Section

2(c) which is as follows: -

8 (1970) 1 SCC 98

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““gangster” means a member or leader or organizer of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities.”

18. Section 3 of the Act deals with penalty. It is apt to

reproduce the same : -

“3. Penalty. – (1) A gangster, shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:

Provided that a gangster who commits an offence against the person of a public servant or the person of a member of the family of a public servant shall be punished with imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees.

(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any Court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine.”

19. Section 5 of the Act deals with Special Courts and

Section 5(1) provides that for the interest of speedy

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trial of offences under this Act, the State Government

may, if it considers necessary, constitute one or more

special courts. Section 7 deals with the jurisdiction of

the Special Courts. Section 7(1) provides that

notwithstanding anything contained in the Code,

where a Special Court has been constituted for any

local area, every offence punishable under any

provision of this Act or any rule made thereunder

shall be triable only by the Special Court within

whose local jurisdiction it was committed, whether

before or after the constitution of such Special Court.

Sub-section (2) of Section 7 lays the postulate that all

cases triable by a Special Court, which immediately

before the constitution of such Special Court were

pending before any court, shall on creation of such

Special Court having jurisdiction over such cases,

stand transferred to it.

20. Section 8 deals with the power of Special Courts with

respect to other offences which reads as follows: -

“8. Power of Special Courts with respect to other offences. – (1) When trying any offence punishable under this Act a Special Court may also try any other offence with which the

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accused may, under any other law for the time being in force, be charged at the same trial.

(2) If in the course of any trial under this Act of any offence, it is found that the accused has committed any other offence under this Act or any rule thereunder or under any other law, the Special Court may convict such person of such other offence and pass any sentence authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof.”

21. Section 10 provides the procedure and powers of

Special Courts and Section 11 provides for protection

of witnesses. Section 12, the validity of which is

under attack, is as follows: -

“12. Trial by Special Courts to have precedence. – The trial under this Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance.”

22. At this juncture, we may profitably recapitulate that it

is the duty of the Court to uphold the constitutional

validity of a statute and that there is always the

presumption in favour of the constitutionality of an

enactment. In this context, we may fruitfully refer to

the decision in Charanjit Lal Chowdhury v. The

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Union of India and others9 wherein it has been

ruled thus: -

“It is the accepted doctrine of American Courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”

23. In Ram Krishna Dalmia v. Shri Justice S.R.

Tendolkar and others10, this Court had ruled that

there is always a presumption in favour of the

constitutionality of an enactment and the burden is

on him who challenges the same to show that there

has been a clear transgression of the constitutional

principles and it is the duty of the Court to sustain

that there is a presumption of constitutionality and in

doing so, the Court may take into consideration

matters of common knowledge, matters of common

report, the history of the times and may assume

every state of facts which can be conceived existing

at the time of the legislations.

9 AIR 1951 SC 41 10 AIR 1958 SC 538

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24. In State of Bihar and others v. Bihar Distillery

Limited11, the said principle was reiterated.

25. In Burrakur Coal Co. Ltd. v. Union of India12,

Mudholkar, J., speaking for the Constitution Bench,

observed: -

“Where the validity of a law made by a competent legislature is challenged in a court of law, that court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.”

26. In Pathumma and others v. State of Kerala and

others13, the seven-Judge Bench has opined thus: -

“The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such a right clashes with the larger interest of the country it must yield to the latter.”

11 AIR 1997 SC 1511 12 AIR 1961 SC 954 13 (1978) 2 SCC 1

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Again in the said judgment, it has been ruled thus: -

“It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds.”

27. The said principles have been reiterated by the

majority in another Constitution Bench in State of

Gujarat v. Mirzapur Moti Kureshi Kassab Jamat

and others14.

28. At this juncture, we think it condign to sit in a time

machine and refer to the opinion expressed by

Krishna Iyer, J., in R.S. Joshi, Sales Tax Officer,

Gujarat and others v. Ajit Mills Limited and

another15: -

“A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal – in interpreting the organic law of the nation. We must also remember the constitutional proposition

14 (2005) 8 SCC 534 15 (1977) 4 SCC 98

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enunciated by the U.S. Supreme Court in Munn v. Illinois16 viz., ‘that courts do not substitute their social and economic beliefs for the judgment of legislative bodies’. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognized by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution.”

29. We have referred to the aforesaid authorities for the

sanguine reason that the submissions raised at the

Bar are to be considered in the backdrop of the

aforesaid “caveat”. The “Modus Vivendi” which

needs a purposive and constructive ratiocination

while engaged in the viceration of the provision,

which draws its strength and stimulus in its variations

from the Constitution, we have to see whether the

provision trespasses the quintessential

characteristics of the Organic Law and, therefore,

should not be allowed to stand.

30. Keeping the aforesaid enunciation in view, we shall

presently proceed to deal with the stand and stance

of both the sides. The first submission which pertains

to the denial of speedy trial has been interpreted to 16 (1876) 94 US 113 (quoted in Labor Board v. Jones & Laughlin, 391 US 1, 33-34-Corwin, Constitution of the USA, Introduction, p. XXXI)

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be a facet of Article 21 of the Constitution. In Kartar

Singh (supra), the majority, speaking through

Pandian,J., has expressed thus: -

“85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.

86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.”

31. Be it noted, the Court also referred to the

pronouncements in Hussainara Khatoon (I) v.

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Home Secretary, State of Bihar17, Sunil Batra v.

Delhi Administration (I)18, Hussainara Khatoon

(IV) v. Home Secretary, State of Bihar, Patna19,

Hussainara Khatoon (VI) v. Home Secretary,

State of Bihar, Govt. of Bihar, Patna20, Kadra

Pahadia v. State of Bihar (II)21, T.V.

Vatheeswaran v. State of T.N.22, and Abdul

Rehman Antulay v. R.S. Nayak23.

32. The present provision is to be tested on the

touchstone of the aforesaid constitutional principle.

The provision clearly mandates that the trial under

this Act of any offence by the Special Court shall

have precedence and shall be concluded in

preference to the trial of such other courts to achieve

the said purpose. The legislature thought it

appropriate to provide that the trial of such other

case shall remain in abeyance. It is apt to note here

that “any other case” against the accused in “any

other court” does not include the Special Court. The

17 (1980) 1 SCC 81 18 (1978) 4 SCC 494 19 (1980) 1 SCC 98 20 (1980) 1 SCC 115 21 (1983) 2 SCC 104 22 (1983) 2 SCC 68 23 (1992) 1 SCC 225

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emphasis is on speedy trial and not denial of it. The

legislature has incorporated such a provision so that

an accused does not face trial in two cases

simultaneously and a case before the Special Court

does not linger owing to clash of dates in trial. It is

also worthy to note that the Special Court has been

conferred jurisdiction under sub-section (1) of Section

8 of the Act to try any other offences with which the

accused may, under any other law for the time being

in force, have been charged and proceeded at the

same trial.

33. As far as fair trial is concerned, needless to

emphasise, it is an integral part of the very soul of

Article 21 of the Constitution. Fair trial is the

quintessentiality of apposite dispensation of criminal

justice. In Zahira Habibulla H. Sheikh and

another v. State of Gujarat and others24, it has

been held as follows: -

“33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing

24 (2004) 4 SCC 158

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circumstances, and exigencies of the situation— peculiar at times and related to the nature of crime, persons involved—directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.”

In the said case, emphasis was laid on the

triangulation of the interest of the accused, the victim and

the society and stress was further laid on the fact that it is

the community that acts through the State and the

prosecuting agencies and the interests of the society are

not to be treated completely with disdain and as persona

non grata. In paragraphs 39 and 40 of the said judgment,

it has been ruled thus: -

“39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.

40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

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34. In Mohd. Hussain alias Julfikar Ali v. State

(Government of NCT of Delhi)25, this Court

observed that “speedy trial” and “fair trial” to a

person accused of a crime are integral part of Article

21. There is, however, qualitative difference

between the right to speedy trial and the right of the

accused to fair trial. Unlike the right of the accused

to fair trial, deprivation of the right to speedy trial

does not per se prejudice the accused in defending

himself.

35. Same principle was reiterated in Niranjan

Hemchandra Sashittal and another v. State of

Maharashtra26.

36. On a careful scrutiny of the provision, it is quite vivid

that the trial is not hampered as the trial in other

courts is to remain in abeyance by the legislative

command. Thus, the question of procrastination of

trial does not arise. As the trial under the Act would

be in progress, the accused would have the fullest

opportunity to defend himself and there cannot be

25 (2012) 9 SCC 408 26 (2013) 4 SCC 642

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denial of fair trial. Thus, in our considered opinion,

the aforesaid provision does not frustrate the concept

of fair and speedy trial which are the imperative

facets of Article 21 of the Constitution.

37. The next limb of attack pertains to scuttling of liberty

of the person who is made an accused for an offence

under the Act. There can never be any shadow of

doubt that sans liberty, the human dignity is likely to

be comatosed. The liberty of an individual cannot be

allowed to live on the support of a ventilator. Long

back in the glory of liberty, Henry Patrick, had to say

this: -

“Is life so dear, or peace so sweet as to be purchased at the price of chains and slavery? – Forbid it, Almighty God! – I know not what course others may take, but, as for me, give me liberty or give me death.27”

38. When the liberty of an individual is atrophied, there is

a feeling of winter of discontent. Personal liberty has

its own glory and is to be put on a pedestal in trial to

try offenders, it is controlled by the concept of

“rational liberty”. In essence, liberty of an individual

27 HENRY, Patrick, Speech in the Virginia Revoluntionary Council, Richmond, 1175 in Henry, William Writ, Patrick Henry: Life Correspondence and Speeches (New York: Charles Scribner’s Sons, 1891), Vol. 1, p.268.

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should not be allowed to be eroded but every

individual has an obligation to see that he does not

violate the laws of the land or affect others’ lawful

liberty to lose his own. The cry of liberty is not to be

confused with or misunderstood as unconcerned

senile shout for freedom. It may be apt to add here

that the protection of the collective is the bone

marrow and that is why liberty in a civilized society

cannot be absolute. It is the duty of the courts to

uphold the dignity of personal liberty. It is also the

duty of the court to see whether the individual

crosses the “Lakshman Rekha” that is carved out by

law is dealt with appropriately. In this context, we

may profitably reproduce a passage from the

judgment in Ash Mohammad v. Shiv Raj Singh

alias Lalla Babu and another28: -

“17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an

28 (2012) 9 SCC 446

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individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others’ rights. It is a well- accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, “it is regulated freedom”.

39. From the aforesaid, it is quite clear that no individual

has any right to hazard others’ liberty. The body polity

governed by Rule of law does not permit anti-social acts

that lead to a disorderly society. Keeping the aforesaid

perspective in view, the submission of the learned counsel

for the petitioner and the argument advanced in

oppugnation by the learned counsel for the respondent

are to be appreciated. It is urged that an accused tried

under this Act suffers detention as the trial in other cases

are not allowed to proceed. As far as other cases are

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concerned, there is no prohibition to move an application

taking recourse to the appropriate provision under the

Code of Criminal Procedure for grant of bail. What is

stipulated under Section 12 of the Act is that the trial in

other case is to be kept in abeyance. Special courts have

been conferred with the power to try any other offence

with which the accused under the Act is charged at the

same trial. Quite apart from the above, the Act empowers

the special courts to grant bail to an accused under the

Act though the provision is rigorous. Sections 19(4) and

19(5) deal with the same. They are as follows: -

“19. Modified application of certain provisions of the Code –

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless:

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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(5) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code.”

40. The said provisions are akin to the provisions

contained in Section 37 of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

41. The provision under Section 37 of the NDPS Act,

though lays conditions precedent and they are in addition

to what has been stipulated in the Code of Criminal

Procedure, yet there is no deprivation of liberty. Be it

noted, a more stringent provision is contained in MCOCA

under Section 21 (5). It reads as under:-

“21(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.”

A three-Judge Bench in State of Maharashtra v.

Bharat Shanti Lal Shah and Others29 dealing with said

facet has opined thus:-

“63. As discussed above the object of MCOCA is to prevent the organized crime and, therefore, there could be reason to deny consideration of grant of bail if one has committed a similar offence once again after being released on bail but the same

29 (2008) 13 SCC 5

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consideration cannot be extended to a person who commits an offence under some other Act, for commission of an offence under some other Act would not be in any case in consonance with the object of the Act which is enacted in order to prevent only organized crime.”

Thereafter, the learned judges observed that the

expression “or under any other Act” in the provision being

discriminatory was violative of Articles 14 and 21 of the

Constitution. Such a provision is absent in Section 19 of

the Act. Thus, there being a provision for grant of bail,

though restricted, we are disposed to think that the

contention that the accused is compelled to languish in

custody because of detention under the Act does not

deserve acceptation and is, accordingly, negatived.

42. The next submission of the learned counsel is that it

is in the nature of preventive detention as is

understood under Article 22(4) of the Constitution of

India. The said contention is to be taken note of only to

be rejected, for the concept of preventive detention is

not even remotely attracted to the arrest and detention

for an offence under the Act.

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43. The next proponement, as noted, pertains to the

violation of the equality clause as enshrined under

Article 14 of the Constitution. Mr. Garg has

endeavoured to impress upon us that the accused who

is only tried by other courts gets the benefit of speedy

trial whereas the accused tried under this Act has to

suffer because trial in other courts are kept in

abeyance. We have already expressed our view that

the concept of speedy and fair trial is neither

smothered nor scuttled when the trial in other courts

are kept in abeyance. As far as Article 14 is concerned,

we do not perceive that the procedure provided in the

Act tantamounts to denial of fundamental fairness in

trial. It does not really shock the judicial conscience

and by no stretch of imagination, it can be said to be

an anathema to the sense of justice. It is neither unfair

nor arbitrary. It is apposite to note here that there is a

distinction between an accused who faces trial in other

courts and the accused in the special courts because

the accused herein is tried by the Special Court as he is

a gangster as defined under Section 2(c) of the Act and

is involved in anti-social activities with the object of

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disturbing public order or of gaining any undue

temporal, pecuniary, material or other advantage for

himself or any other person.

44. It is a crime of a different nature. Apart from normal

criminality, the accused is also involved in organized

crime for a different purpose and motive. The accused

persons under the Act belong to altogether a different

category. The legislature has felt that they are to be

dealt with in a different manner and, accordingly, the

trial is mandated to be held by the special courts in an

expeditious manner. The intention of the legislature is

to curb such kind of organized crimes which have

become epidemic in the society. In Kartar Singh

(supra), the majority has said, “Legislation begins

where Evil begins”. The legislature, as it seems to us,

being guided by its sacrosanct duty to protect the

individual members of society to enjoy their rights

without fear and see that some people do not become

a menace to the society in a singular or collective

manner, has enacted such a provision. In this context,

we may refer with profit to the authority in The Works

Manager, Central Railway Workshop, Jhansi v.

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Vishwanath and others30, wherein a three-Judge

Bench, though in a different context, has observed that

certain types of enactments are more responsive to

some urgent social demands and also have more

immediate and visible impact on social vices by

operating more directly to achieve social reforms. We

have referred to the said observations only to highlight

how the legislature in a welfare State immediately

steps in for social reforms to eradicate social vices.

Similarly, sometimes it is compelled to take steps to

control the frenzied criminal action of some anti-social

people. In the case at hand it can be stated with

certitude that the legislature has felt that there should

be curtailment of the activities of the gangsters and,

accordingly, provided for stern delineation with such

activities to establish stability in society where citizens

can live in peace and enjoy a secured life. It has to be

kept uppermost in mind that control of crime by

making appropriate legislation is the most important

duty of the legislature in a democratic polity, for it is

necessary to scuttle serious threats to the safety of the

30 (1969) 3 SCC 95

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citizens. Therefore, the legislature has, in actuality,

responded to the actual feelings and requirements of

the collective.

45. Thus, the accused under the Act is in a distinct

category and the differentiation between the two,

namely, a person arrayed as an accused in respect of

offences under other Acts and an accused under the

Act is a rational one. It cannot be said to be arbitrary.

It does not defeat the concept of permissible

classification. The majority in Kartar Singh (supra)

has expressed thus: -

“218. The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances.”

46. Tested on the touchstone of the abovestated

principles, the irresistible conclusion is that the

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classification is in the permissible realm of Article 14 of

the Constitution. Therefore, the submission that

Section 12 invites the wrath of Article 14 of the

Constitution is sans substratum and, accordingly, we

have no hesitation in repelling the same and we so do.

47. In view of the aforesaid analysis, we uphold the

constitutional validity of Section 12 of the Uttar

Pradesh Gangsters and Anti-Social Activities

(Prevention) Act, 1986 as it does not infringe any of the

facets of Articles 14 and 21 of the Constitution of India.

Ex-consequenti, the writ petition, being devoid of merit,

stands dismissed.

..…………………………….J. [H.L. Gokhale]

….………………………….J. [Dipak Misra]

New Delhi; August 02, 2013

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