Supreme Court holds UP Gangsters Act creates no offence, quashes proceedings as stillborn
A bench of Justices J.B. Pardiwala and K. Vinod Chandran held the UP Gangsters Act defines status but creates no offence, quashing chargesheets under Sections 2/3.
The Supreme Court has held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 does not create any offence, and quashed proceedings launched under it against two advocates. A bench of Justices J.B. Pardiwala and K. Vinod Chandran found that the statute only defines “gang” and “gangster” and prescribes punishment for a status determined by police through a gang chart, without ever making any act or omission an offence in law.
Deciding two connected criminal appeals arising from Special Leave Petitions, the Court applied the principle nulla poena sine lege — no punishment without an offence in law — and held the enactment to be “stillborn”. The judgment, delivered on 20 August 2026, quashed a chargesheet arising from FIR No. 41 of 2024 and a sessions case tied to FIR No. 740 of 2022, both registered under Sections 2/3 of the Act.
How the two appeals reached the Court
Both appellants are practising advocates. In the first case, the appellant was drawn into a dispute over elections to the Bar Association, Fatehgarh, Farrukhabad. The Bar Council of Uttar Pradesh debarred five advocates, including him, and later, by an order dated 16 July 2023, debarred him for 15 years with a direction to lodge a police complaint.
The High Court struck down the earlier Bar Council communication as being without jurisdiction, and the Bar Council of India by order dated 31 August 2024 declared the Bar Council of Uttar Pradesh orders a nullity. Despite this, FIR No. 41 of 2024 was registered under the Act on 13 February 2024, with a gang chart showing the appellant as Accused No. 3. A chargesheet under Section 2 followed on 12 February 2025, and his petition under Section 482 CrPC was rejected by the High Court.
In the second case, the appellant was applicant No. 3 in a Section 482 petition seeking to quash a chargesheet in Sessions Case No. 73 of 2024, arising from Case Crime No. 740 of 2022 registered at Police Station Loni Border, District Ghaziabad Rural. The FIRs named his father as the gang leader, with the appellant and another person as members.
The Court made clear it was not examining the Bar Council disputes or the constitutional validity of the Act, but only the specific FIRs registered under Sections 2/3.
Why the Court held there is no offence
The Court examined the structure of the Act. Section 2 is the definition clause defining “gang” and “gangster”. Section 3 prescribes punishment. The listed activities in clauses (i) to (xxv) of Section 2(b) refer to offences already punishable under the Indian Penal Code, the NDPS Act, the Public Gambling Act and other penal laws.
The bench held that indulging in any of those activities leads to prosecution under the penal law that already makes the act an offence, independent of the UP Act. The UP Act “merely provides for a punishment” for involvement in acts already penalised elsewhere, without creating a distinct offence. As the Court put it, punishment was prescribed for a gangster “without an offence being created by statute”.
The Court relied on the definition of “offence” in the General Clauses Act — an act or omission made punishable by any law in force — and on the Constitution Bench decision in S.A. Venkataraman v. Union of India, which held that prosecution must reference the law that creates the offence. Looking at the enactment, the Court could find no offence having been created.
The role of the gang chart and the Rules
The Court found that the Rules of 2021, framed under Section 23, set the conditions of criminal liability and prescribed the procedure for preparing a gang chart. That chart is prepared by police at station level, forwarded through the hierarchy, and approved in a joint meeting of senior police and district administration.
The bench held that punishing a person for involvement in listed activities on the basis of a gang chart, apart from the prosecution under the respective penal laws, exceeds the power under Section 23. It results in the same act being punished twice, one law presuming the status of the accused to punish again for the very same act. It also enables the investigating agency to delay investigation and extend pre-trial incarceration up to a year.
Because no offence is created under the Act, the Court said, there can be no valid procedure under the Rules by which an offence is created and punishment guaranteed under Section 3. The creation of a crime is a legislative function that cannot be left to subordinate legislation.
Distinguishing the Maharashtra and Gujarat statutes
The Court noted that the Maharashtra Control of Organised Crime Act, 1999 and the Gujarat Control of Terrorism and Organised Crime Act, 2015 define continuing unlawful activities and organised crime, and separately provide, under Section 3, that whoever commits or abets such crime commits an offence and prescribe punishment. Referring to Shraddha Gupta v. State of Uttar Pradesh and Mahipal Singh v. CBI, the bench found the UP Act had no comparable provision creating an offence.
The bench recorded that the constitutional validity of the UP Act, twice referred to a Constitution Bench, remains at large, as noticed in Dharmendra Kirthal v. State of Uttar Pradesh. It clarified it had not upheld the Maharashtra or Gujarat Acts, and had drawn on them only to show the absence of a created offence in the UP Act.
Comparison with preventive detention
The Court observed that the Act operates as an alternative to preventive detention but without the safeguards attached to detention laws. In preventive detention, procedure assumes strict form, with time frames, supply of material to the detenu, rights of representation and reference to an Advisory Board. None of these safeguards apply under the UP Act.
The bench held that once status is determined by administrative and police authorities through a gang chart, little remains for the Judicial Officer but to punish, even where the person is acquitted of the predicate offence. The end result of a trial under the Act was described as a foregone conclusion, a statutory imprimatur to punish. The Court noted there was no complaint from any District Judge or Presiding Officer despite the serious allegations levelled in the FIR.
Order
Both appeals were allowed. Chargesheet No. 1 of 2025 arising from FIR No. 41 of 2024 registered at Fatehgarh Kotwali, and Sessions Case No. 73 of 2024 arising from Case Crime No. 01 of 2023 and FIR No. 740 of 2022 registered at Police Station Loni Border, District Ghaziabad Rural, both under Sections 2/3 of the UP Act, were quashed and set aside.
The Court directed that the appellants, if in custody, be released forthwith if not required in any other case, and that bail bonds, if already executed, stand cancelled. The Court clarified that its decision does not affect charges under other penal laws, which must proceed under the CrPC and the respective statute.