Jitendra and 2 Others v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45296 of 2023 Applicant :- Jitendra And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Chandra Prakash Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.

¶1Learned A.G.A. for the State submits that instructions have been received and has no objection in case the bail application is heard on merits.

¶2Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.

¶3It is submitted by learned counsel for the applicants that there is one case shown in the gang chart against each applicants, in which cases they are already on bail, the bail orders are annexed as Annexure No. 3 to the affidavit. It is also submitted that other criminal history of the applicant no. 2 has been explained in paragraph No. 3 of the supplementary affidavit. It is the submission of learned counsel for the applicants that applicants neither the gang leader or organizer or member of the gang and the provision of Gangster Act may not be applicable in the facts and circumstances of the case. Applicants are languishing in jail since

15.9.2023 and in case they are released on bail, they will not misuse the liberty of bail and will cooperate in the trial. In the First Information Report, the allegations are vague in nature and no specific instance to the effect that the applicants are member or leader or organizer of a Gang has been disclosed and as such the factual foundation under the Gangster Act is not available.

¶4Learned A.G.A. for the State has opposed the prayer for bail but does not dispute the factual matrix of the case.

¶5Having heard learned counsel for the parties and perused the record.

¶6The following facts, circumstances and material are considered while considering the bail application of the applicants:- a) The provision of Gangster Act has been invoked against each of the the applicants on the basis of one criminal case shown in the gang chart. However, the applicants have already been released on bail in the previous criminal cases. b) No material particulars have been shown by the opposite party to demonstrate that the applicants in any manner was involved in violence or threat or show of violence or intimidation or coercion with the object of disturbing public order. No specific instances in this respect have been shown by opposite parties. No particulars have been shown by the learned A.G.A. for the State to demonstrate the date and time when the applicants can be said to be involved in violence or threat or show of violence or intimidation or coercion with the object of disturbing public order. c) No material particular has been placed by learned A.G.A. for the State to demonstrate that applicants are involved in antisocial activity (as enumerated under section 2(b) of the U.P. Act No. 7 of 1986) for gaining any undue temporal, pecuniary, material or another advantage for themselves or any other person. d) Learned A.G.A. for the State has not shown any material and particulars that the applicants are a person who abets or assists in the activities of a gang enumerated in Section 2(b) of the Gangster Act, whether before or after the commission of such activities. No material or circumstances has been shown by learned A.G.A. for the State that applicants harbours any person who has indulged in such activities. e) The special rules of evidence under Section 4 of U.P. Act No. 7 of 1986 are applicable for the purpose of trial and punishment of offences under the said Act. At the stage of bail the special rules of evidence cannot be pressed unless the foundational facts have been demonstrated by the prosecution. f) The sentence under Section 3 of the U.P. Act No. 7 of 1986 is minimum of two years and may extend to 10 years. No special circumstances have been shown by learned A.G.A. for the State to demonstrate that the applicants would be entitled to a conviction of more than 7 years at the end of the trial. g) Mere pendency of a criminal case may not ipso facto invoke the provisions of U.P. Act No. 7 of 1986. Learned A.G.A. for the State has not produced any material to demonstrate that the applicants come within the definition of "Gangster" and "Gang" under U.P. Gangsters and Antisocial Activities (Prevention ) Act, 1986. h) Criminal history of the applicant no. 2 has been adequately explained.

i) The applicants are in jail since 15.09.2023.

¶7Learned A.G.A. for the State has not been able to demonstrate that there are reasonable grounds to belief that the applicants are guilty for an offence under U.P. Act No. 7 of 1986. No circumstance or reasonable apprehension has been shown on behalf of State that the applicants are likely to commit any offence while on bail. It is not the case of the State that after releasing on bail in previous criminal cases shown in the gang chart or otherwise, the applicants have misused the bail or indulged in any crime while on bail in previous criminal cases.

¶8In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

¶9In so far as criminal antecedents of the applicants are concerned, it is not the case of the State that applicants might tamper with or otherwise adversely influence the investigation, or that they might intimidate witnesses before or during the trial. The State has also not placed any material that applicants in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, they cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicants just on the ground that they had criminal antecedent.

¶10The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC

¶51Learned A.G.A. for the State has not shown any exceptional circumstances which would warrant denial of bail to the applicants.

¶11It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicants fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned A.G.A. for the State.

¶12Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicants are not entitled to bail in larger interests of the public or State.

¶13Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned A.G.A. for the State and without expressing any opinion on the merits of the case, the Court is of the view that the applicants have made out a case for bail. The bail application is allowed.

¶14Let the applicants-Jitendra, Jiya Lal and Sudhir @ Bhaggu, involved in Case Crime No. 723 of 2023, under Section 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station Kannauj, District Kannauj be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicants will not tamper with the evidence during the trial. ii. The applicants will not pressurize/intimidate the prosecution witness. iii. The applicants will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicants shall make themselves available for interrogation by a police officer as and when required. iv. The applicants shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. v. The applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. vi. The applicants shall not leave India without the previous permission of the Court. vii. In the event, the applicants changes residential address, the applicants shall inform the court concerned about new residential address in writing.

¶15In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

¶16Any observation made in the present order shall not affect the investigation or the trial court proceedings. Order Date :- 4.12.2023 VMA High Court of Judicature at Allahabad