2026 INSC 894
SUPREME COURT OF INDIA
(From: Allahabad High Court)
Coram: J.B. PARDIWALA and K. VINOD CHANDRAN, JJ.
Criminal Appeal No. 3979 of 2026 (Arising out of SLP (Crl.) No. 16398 of 2025) with Criminal Appeal No. 3980 of 2026 (Arising out of SLP (Crl.) No. 1997 of 2026), D/- 20-08-2026.
Shiv Pratap Singh Alias Chinu (in Crl. A. No. 3979/2026)
Himanshu Srivastava (in Crl. A. No. 3980/2026) — Appellants
versus
State of U.P. & Ors. — Respondents
HEADNOTE
(A) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act (7 of 1986), Ss. 2(b), 2(c), 3, 23 — Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Rules, 2021, Rr. 3, 4, 6, 16, 22 — Principle of 'Nulla poena sine lege' — Penal jurisprudence — Absence of substantive creation of an offence — Act merely defining 'gang' and 'gangster' without creating an actus reus or penalizing any specific act/omission as an offence under the Act — Prescribing penalty for mere 'status' determined via Gang Chart — Sustainability — Act held stillborn.
Held: A penal statute must substantively create an offence and prescribe punishment for such violation. Under the maxim nulla poena sine lege and the definition of "offence" in the General Clauses Act, 1897, an offence means an act or omission made punishable by law. The U.P. Gangsters Act, 1986 merely defines "Gang" [S. 2(b)] by listing activities already punishable under other independent penal enactments (IPC, NDPS Act, Arms Act, etc.) and defines "Gangster" [S. 2(c)], but fails to enact any substantive provision making membership or participation in a gang an independent offence under the Act. Prescribing punishment under Section 3 for an executive-determined "status" based on a "Gang Chart" prepared under subordinate rules, without creating an actus reus in the parent statute, is impermissible in criminal jurisprudence. The creation of a crime is an essential legislative function that cannot be delegated to subordinate legislation. The Act is stillborn and proceedings initiated under Sections 2/3 thereof are unsustainable. (Paras 21, 26, 29, 36, 37, 38, 39, 43, 52, 53, 54, 58, 59)
(1954) 1 SCC 586 — Relied on.
AIR 1987 All 235 (FB) — Disapproved.
(2014) 11 SCC 282 and (2022) 19 SCC 57 — Distinguished.
(B) Constitution of India, Art. 20(1), Art. 21 — Criminal trial — Fundamental Rights — Protection against conviction without violation of law in force — Punishing executive-determined status — Absence of safeguards akin to Preventive Detention.
Held: Article 20(1) guarantees that no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence. The U.P. Gangsters Act allows pre-trial incarceration extending up to one year and enables trial and mandatory conviction solely upon an executive-prepared Gang Chart without the statutory safeguards available under preventive detention laws (e.g., representation, time-bound approval by Advisory Board). Imposing penal liability and punishment upon a person merely on the ipse dixit of administrative and police authorities by attaching the label of "gangster" violates constitutional tenets and established criminal jurisprudence. (Paras 28, 44, 48, 50, 51, 52, 54, 56, 57)
(1953) 2 SCC 111; (1991) 4 SCC 298; (2023) 3 SCC 315; and (2023) 15 SCC 339 — Relied on.
(C) Criminal Procedure Code (2 of 1974), S. 482 — Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act (7 of 1986), Ss. 2, 3 — Quashing of proceedings — Predicate offences under IPC/other special laws to proceed independently.
Held: While the charge-sheets and proceedings initiated under Sections 2/3 of the U.P. Gangsters Act are liable to be quashed, the independent prosecutions initiated against the accused persons in respect of predicate offences registered under the Indian Penal Code or other penal statutes shall remain unaffected and proceed in accordance with general criminal procedure. (Paras 17, 38, 58, 59)
FACTS
- Criminal Appeal No. 3979 of 2026 (Shiv Pratap Singh): The Appellant, a practicing advocate, was embroiled in election disputes of the Bar Association, Fatehgarh. Following disciplinary actions by the State Bar Council (which were stayed by the High Court and declared nullity by BCI), an FIR (FIR No. 377/2023) was lodged. Thereafter, Police registered FIR No. 41 of 2024 under Sections 2/3 of the U.P. Gangsters Act against the appellant based on a Gang Chart alleging anti-social activities. Charge-sheet No. 1 of 2025 was filed, and the High Court dismissed the appellant’s petition under Section 482 Cr.P.C. (Paras 4–9)
- Criminal Appeal No. 3980 of 2026 (Himanshu Srivastava): The Appellant, an advocate, along with his father and brother, was implicated in Case Crime No. 61 of 2022 under Sections 323, 504, 506, 452 IPC and SC/ST Act. Based on the said single predicate case, FIR No. 740 of 2022 was registered under Sections 2/3 of the U.P. Gangsters Act at P.S. Loni Border, Ghaziabad. Charge-Sheet No. 1 of 2023 was filed, resulting in Sessions Case No. 73 of 2024. The High Court rejected the appellant's quashing application under Section 482 Cr.P.C. (Paras 13–16)
ANALYSIS OF FACTS & LAW
- Absence of Statutory Actus Reus: A scrutiny of Sections 2, 3, 7, 8, 10, and 12 of the U.P. Act reveals that while the legislature frequently refers to "an offence under this Act," no act or omission is substantively penalized as an independent crime within the statute. Section 2(b) merely defines a "Gang" by referencing 25 categories of anti-social activities that are already punishable under other specific penal statutes (IPC, NDPS, Arms Act, etc.). (Paras 21, 26, 37, 38)
- Flawed Creation of Offence by Subordinate Rules: The 2021 Rules (specifically Rules 3, 4, 6, and 22) attempt to create conditions of criminal liability and formulate the mechanism of a "Gang Chart" approved by executive police/district authorities. The creation of penal offences is an essential legislative function that cannot be delegated to the executive through rule-making power under Section 23. (Paras 23, 24, 39, 52, 53, 54)
- Comparison with Other Organized Crime Enactments: Unlike the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and Gujarat Control of Terrorism and Organised Crime Act, 2015 (GUJCTOC), which specifically define and create substantive offences of "continuing unlawful activity" and "organized crime" under Section 3 with prescribed ingredients, the U.P. Gangsters Act contains no such substantive charging provision. It punishes an individual solely on the basis of an executive-labeled status. (Paras 41, 42, 43)
- Doctrine of Nulla Poena Sine Lege & Constitutional Bar: Under Article 20(1) and established principles of criminal jurisprudence, there can be no prosecution or sentence without an underlying substantive offence created by the governing statute. Incarcerating citizens without an actus reus created by the parent Act renders the enactment stillborn. (Paras 29, 36, 43, 52, 58)
CONCLUSION
- The U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 is stillborn due to the complete absence of a substantively created offence in the parent statute.
- Both criminal appeals were allowed.
- The proceedings and charge-sheets under Sections 2/3 of the U.P. Gangsters Act—namely, Charge Sheet No. 1 of 2025 arising from FIR No. 41 of 2024 (Farrukhabad) and Sessions Case No. 73 of 2024 arising from Charge Sheet No. 1 of 2023 / FIR No. 740 of 2022 (Ghaziabad)—were quashed and set aside.
- Appellants directed to be released forthwith, if not required in any other case.
- Predicate cases under the IPC and other independent penal statutes remain unaffected and shall proceed in accordance with law. (Paras 58, 59, 60)
