Supreme Court of India· 20 August 2026
Can Rules framed under Section 23 of the U.P. Gangsters Act determine the status of a 'gangster' and impose punishment where the parent Act itself creates no offence?
SHIV PRATAP SINGH ALIAS CHINU v. STATE OF U.P. & ORS.
2026 INSC 894 · Criminal Appeal No.3979 of 2026 (with Criminal Appeal No.3980 of 2026)
Coram: J. B. Pardiwala; K. Vinod Chandran
Answer
No. The creation of an offence is essentially a legislative function; it cannot be left to subordinate legislation. Since the Act creates no offence, the Rules cannot determine the status of a gangster through a Gang Chart prepared by the police and administrative authorities so as to impose punishment.
Headnote
Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 — Section 2(b) — Definition clause — No offence created — Constitution of India — Article 20(1) — Nulla poena sine lege — Section 23 — Delegated legislation — Gang Chart —
U.P. Gangsters Act, 1986 — Section 2(b) — Definition of 'gang' — No offence created —
Held: Section 2(b) of the U.P. Gangsters Act is merely a definition clause; the activities in clauses (i) to (xxv) are already offences under other penal laws, and the Act itself creates no distinct offence, rendering it stillborn. (¶38, 39, 58)
Constitution of India — Article 20(1) — Nullum crimen nulla poena sine lege —
Held further: Article 20(1) embodies nullum crimen nulla poena sine lege: no person may be punished save for violation of a law in force at the time of the act, and a law that creates no offence cannot support punishment. (¶44, 52)
U.P. Gangsters Act, 1986 — Section 23 — Rules — Impermissible delegation —
Held further: The Rules framed under Section 23 cannot determine the status of a 'gangster' or create punishable liability where the parent Act creates none; creation of an offence is a legislative function that cannot be left to subordinate legislation. (¶53, 54)
U.P. Gangsters Act, 1986 — Proceedings quashed — Other penal charges unaffected —
Held further: The Act is stillborn on its existing provisions; the proceedings thereunder are quashed and the appellants released if in custody, without affecting the separate prosecution of the underlying offences under the ordinary penal laws. Appeals allowed. (¶58, 59, 60)
In the Court's own words
Paragraph 53The Rules thus go beyond the powers conferred under the Statute and the determination of the status as found from the definition clause of the Statute, without any guidelines in the Statute itself. The determination of a status as coming out from the Statute will have to be from the provisions of the Statute itself and otherwise it would be unbridled and unfettered power conferred on the executive government. The menace of criminal gangs is to be curbed, but the end does not justify the means especially in enacting a penal law, interfering with the liberty of citizens. Ganpati Dealcom Private Limited[^14] held, the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil, by itself is not decisive of the question as to whether the element of a guilty mind is excluded from the ingredients of an offence.
Paragraph 54A ‘gangster’ is defined under the Act and the determination of who a gangster is, for the purpose of punishment, is as prescribed in the Rules, left to the ipsi dixit of the Executive. The creation of crime, or to make an act or omission subject to penal consequences as an offence, is essentially a legislative function and it cannot be thrown away and left to sprout in the thickets of subordinate legislation. As we noticed, the provisions of the Act could lead to a detention of the accused without trial for long, which is akin to a statute enjoining preventive detention. Though preventive detention has been held to be permissible even in the teeth of Article 21, the same is hedged with safeguards, which are held to be sacrosanct and even a minor procedural violation would entail release of the detenu. The safeguards in preventive detention are numerous, since it is the subjective satisfaction of the Administration and the Police that leads to a detention, the period in which such detention continues being the exclusive premise of the State Government, who also has the authority to release the detenu at any point of time. The period provided in which such detention order has to be forwarded to the State Government; the materials to be supplied to the detenu; the right of representation to the various authorities, at every stage, as granted to the detenu; the reference to an Advisory Board constituted by statute and the decision to be arrived there at within a time frame, mitigates and erases to an extent the rigour & malice of subjectivity, which subjectivity pervades a preventive detention order. The subject enactment, the U.P. Act not only permits detention for a period without anything more than the inclusion in a Gang Chart but also enables a trial and punishment on the basis of the very same Gang Chart, in addition to the pre-trial incarceration, but without an offence being created by the Act itself. It is akin to the English proverb: ‘Give a dog a bad name and hang him’.
Acts & Sections
Section 2(b) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986Section 23 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986Rule 6 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Rules, 2021Article 20(1) of the Constitution of IndiaSection 482 of the Code of Criminal Procedure, 1973One judgment a day. That's the whole habit.
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