The Supreme Court has held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, in its present form, does not create an independent criminal offence despite prescribing punishment for a person identified as a “gangster”. 

The bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran described the enactment as “stillborn” and quashed the proceedings initiated against two advocates under Sections 2 and 3 of the Act.

The central question before the Court was not whether the allegations of ordinary criminal offences against the appellants were true. Rather, the Court examined whether proceedings under the U.P. Gangsters Act could legally continue when the Act itself did not expressly create a distinct offence corresponding to the status of being a “gangster”.

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The Court emphasised that the offences referred to in Section 2(b) of the U.P. Act are already offences under other penal statutes. According to the judgment, the Act defines a “gang” and a “gangster” and provides punishment, but does not itself create an independent offence for which a person can be prosecuted and convicted.

This distinction became decisive because criminal liability cannot be founded merely upon an administrative determination that a person falls within a particular statutory status.

The first appeal arose from a dispute concerning elections to the Bar Association, Fatehgarh, Farrukhabad. The appellant, a practising advocate, had faced disciplinary proceedings concerning the conduct of the Bar Association elections.

The Bar Council of Uttar Pradesh initially proceeded against several advocates and, by an order dated February 9, 2019, debarred five advocates, including the appellant, from practising for ten years. The relevant proceedings were subsequently challenged before the High Court, which struck down the communication issued by the Bar Council as being without jurisdiction.

Fresh disciplinary proceedings were later initiated. On July 16, 2023, the Disciplinary Committee of the Bar Council of Uttar Pradesh passed an order debarring the appellant and another advocate for 15 years and directed that a complaint be lodged with the police and judicial authorities. The High Court subsequently stayed the Bar Council’s direction, while the Bar Council of India, by an order dated August 31, 2024, declared the orders of the Uttar Pradesh Bar Council to be a nullity.

Despite this background, the police registered FIR No. 41 of 2024 under the U.P. Gangsters Act on February 13, 2024. A Gang Chart was prepared on the same date, showing Shiv Pratap Singh as Accused No. 3 along with two other persons. The allegations in the FIR were broadly that the accused constituted a criminal gang, indulged in offences and anti-social activities, and created fear and terror among members of the public.

The Supreme Court noted that the allegations in the First Information Statement were general in nature and that the proceedings under the Gangsters Act were substantially founded on the Gang Chart.

The second appeal concerned advocate Himanshu Srivastava and proceedings initiated against him, his brother and his father under the U.P. Gangsters Act.

The underlying proceedings included Case Crime No. 61 of 2022 against the appellant under various provisions of the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Based upon that case, FIR No. 740 dated September 30, 2022 was registered under Sections 2 and 3 of the U.P. Gangsters Act at Loni Border Police Station in Ghaziabad Rural. The Gang Chart alleged that Santosh Srivastava was the leader of a gang consisting of his sons and another person.

The Supreme Court made it clear that any independent criminal cases registered under the IPC or other penal statutes would continue to be governed by those respective laws. The Court’s ruling was confined to the validity of the proceedings specifically instituted under Sections 2 and 3 of the U.P. Gangsters Act.

The Court undertook a detailed examination of the statutory scheme.

Section 2(b) defines a “gang” by reference to persons acting singly or collectively through violence, threats, intimidation, coercion or similar means for disturbing public order or securing various forms of advantage, while listing a wide range of anti-social activities. Section 2(c) defines a “gangster” as a member, leader or organiser of a gang and also includes persons who abet or assist gang activities.

Section 3 prescribes imprisonment and fine for a gangster. The punishment ordinarily ranges from two to ten years’ imprisonment, along with a fine, with enhanced consequences in specified circumstances involving public servants.

The Court, however, found a fundamental statutory difficulty: while the Act defines the relevant categories and prescribes punishment, it does not expressly create the offence itself.

The Supreme Court anchored its reasoning in the fundamental criminal-law principle “nulla poena sine lege” — no punishment without law.

The Court observed that a penal statute must create an offence before punishment can be imposed. Referring to the definition of “offence” in the General Clauses Act, the Bench explained that an offence means an act or omission made punishable by law. Therefore, the criminal law under which prosecution is initiated must itself establish the offence and prescribe the applicable punishment.

The Bench concluded that the U.P. Gangsters Act does not meet that requirement. Section 2(b), according to the Court, is fundamentally a definition provision. The activities enumerated in that provision are already criminalised under separate enactments, including the IPC, the Narcotic Drugs and Psychotropic Substances Act, the Public Gambling Act and other penal laws.

Thus, committing one of those underlying offences may result in prosecution under the relevant penal statute, but the U.P. Gangsters Act does not independently convert the same conduct into a separate offence merely by classifying the accused as a gangster.

A particularly important aspect of the ruling concerns the Gang Chart prepared under the 2021 Rules.

The Court noted that the Rules prescribe a detailed mechanism for preparing and approving a Gang Chart. The process begins at the police-station level and moves through senior police and district authorities before approval. The Rules also require specified offences, supporting records, the status of accused persons and witnesses, and other relevant details to be incorporated.

However, the Supreme Court held that subordinate legislation cannot create a criminal offence where the parent statute has not done so.

According to the Court, preparation of a Gang Chart for the purpose of imposing punishment under the Gangsters Act, independently of prosecution under the underlying penal laws, would travel beyond the authority granted by Section 23 of the Act. The Court also cautioned that such an approach could result in the same criminal act effectively being subjected to punishment under two statutory regimes.

The Court stressed that creation of a crime is an essential legislative function.

It held that the determination of a person’s status as a “gangster” under the statutory framework was effectively being left to the executive through the Gang Chart mechanism contained in the Rules. In the Court’s view, the statute itself must establish the ingredients of criminal liability; those ingredients cannot be supplied indirectly through subordinate legislation.

The Bench observed that the Rules had gone beyond the powers conferred by the Act and that allowing such an arrangement would confer an unfettered power upon the executive to determine a status carrying penal consequences.

The Court acknowledged the legitimate objective of combating criminal gangs and anti-social activities but made clear that the seriousness of the social problem cannot justify departure from basic requirements of criminal law.

One of the most significant observations in the judgment was that the objective of controlling criminal gangs, however laudable, cannot justify a penal mechanism that does not itself create an offence.

The Court stated that the menace of criminal gangs must be curbed, but “the end does not justify the means” when a penal law interferes with the liberty of citizens.

The Bench further observed that the creation of a crime or the imposition of penal consequences for an act or omission is fundamentally a legislative function. Such a function cannot be delegated to subordinate legislation and left to executive determination through administrative procedures.

The Court also expressed concern over the consequences of the Gangsters Act framework for personal liberty.

It observed that proceedings under the Act could permit an accused to remain incarcerated for an extended period and could operate in a manner resembling preventive detention, even though preventive detention itself is subject to a separate set of statutory and constitutional safeguards.

The Bench noted that the U.P. framework could permit detention and eventual trial and punishment on the basis of the same Gang Chart, despite the absence of an offence created by the Act itself.

This concern was particularly significant because Section 19 of the Act contains stringent provisions concerning bail and default bail, while the Act also provides for Special Courts and special procedural mechanisms.

Importantly, the Supreme Court clarified that it did not decide the constitutional validity of the U.P. Gangsters Act.

The Court noted that the constitutional validity of the enactment had previously been considered in different proceedings but had not been conclusively decided by a Constitution Bench. The present judgment therefore does not amount to a declaration that the entire Act is unconstitutional.

Instead, the Court decided the appeals on a narrower statutory ground: the Act, in its existing form, does not create the necessary independent offence.

The Court expressly left other constitutional and legal questions open for future consideration.

The Bench also examined other special criminal statutes, including the Maharashtra Control of Organised Crime Act and the Gujarat Control of Terrorism and Organised Crime Act.

The Supreme Court pointed out that those enactments contain specific provisions creating offences such as organised crime and terrorist acts and separately prescribe punishment for those offences. This structural feature was absent from the U.P. Gangsters Act as presently framed.

The comparison was therefore not intended to uphold the constitutional validity of those enactments, but only to demonstrate the distinction between a statute that expressly creates a penal offence and one that merely defines a category of persons and attaches punishment to that status.

After examining the statutory framework, the Supreme Court concluded that the U.P. Act was “stillborn” because it did not create an offence capable of sustaining the criminal proceedings initiated under it.

The Court consequently allowed both appeals and quashed Charge Sheet No. 1 of 2025 arising from FIR No. 41 of 2024, registered at Fatehgarh Kotwali, as well as the proceedings in Sessions Case No. 73 of 2024 arising from Charge Sheet/Case Crime No. 01 of 2023 and FIR No. 740 of 2022, registered at Loni Border Police Station, Ghaziabad Rural. Both proceedings were under Sections 2/3 of the U.P. Gangsters Act.

The Court further directed that the appellants, if in custody and not required in any other case, be released forthwith. Where the appellants were already on bail, their bail bonds were directed to stand cancelled.

The Supreme Court specifically clarified that its decision does not affect charges under other penal statutes. Such cases are to proceed independently under the Code of Criminal Procedure and the respective substantive penal laws that actually make the alleged conduct an offence.

The Court did not hold that the underlying criminal allegations were false or that every proceeding arising from them must end. It held only that the special proceedings under the U.P. Gangsters Act could not survive because the Act itself did not create an independent offence.

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