TMI Blog2013 (8) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 another[1] 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 another[2] and a two-Judge Bench of this Court referred the matter to the Constitution Bench by stating thus: - 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 Activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctuous 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 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 sacros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 others[14]. 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 another[15]: - 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 interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Home Secretary, State of Bihar[17], Sunil Batra v. Delhi Administration (I)[18], Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna[19], Hussainara Khatoon (VI) v. Home Secretary, State of Bihar, Govt. of Bihar, Patna[20], Kadra Pahadia v. State of Bihar (II)[21], T.V. Vatheeswaran v. State of T.N.[22], and Abdul Rehman Antulay v. R.S. Nayak[23]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Maharashtra[26]. 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an 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 Edmo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 Others[29] 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urb 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. Vishwanath and others[30], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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