Dinesh Loniya vs State Of U.P.
2012 Latest Caselaw 2592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
Court No. - 8
 

 
Case :- BAIL No. - 4327 of 2012
 
Petitioner :- Dinesh Loniya
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Gajendra Pratap Singh,Rajesh Misra
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

Heard learned counsel for the accused applicant and learned counsel for the State and perused the F.I.R. and other relevant papers filed in support of the bail application.

Counter affidavit, filed today, is taken on record. The accused applicant has been implicated in this case on account of pendency of one criminal case under crime no.562/10 for the offence punishable under Sections 457/380 IPC. The accused applicant has been implicated in this case on 24.09.2011.

Learned A.G.A. opposed the prayer for bail.

Considering the facts and circumstances and without expressing any view on the merits of the case, let the accused applicant  be released on bail in Case Crime No. 618/11 under Section 3(1) of U.P. Gangsters' Act, PS Ram Nagar, District Barabanki, on his furnishing a personal bond and two local and reliable sureties  each in the like amount to the satisfaction of the court/Magistrate concerned.

The order dated 1.10.2010 passed by Learned Sessions Judge, Barabanki in bail application no.1459 of 2010 (NC) shows a recovery of Rs.900/- from the accused applicant, in which he has been granted bail by the Learned Sessions Judge. The alleged recovery relate to 21.09.2010.  After a lapse of more than a year i.e. on 24.09.2011, he has been implicated in this case and, no criminal case has been registered against the accused applicant during this period of more than a year. How the police declared him to be a gangster is absolutely unexplained and, the District Magistrate has acted like a rubber stamp of the police and has involved the accused applicant under Gangster and Anti-Social Activities (Prevention) 1986; the only offence against the accused applicant in his life, that too, which relate to committing  of theft in a dwelling house by lurking house tress pass in order to commit such theft, in which the accused applicant is not named and, he has been implicated on the basis of mere recovery of Rs.900/-? The District Magistrate and Superintendent of Police, Barabanki are obviously guilty of non application of mind which have seized the rights guaranteed to a citizen under Article 21 of the Constitution of India. This is a case of  gross abuse of power by State machinery. In such cases the citizen must be compensated, in view of law laid down by the Hon'ble Apex Court in the case of Rudal Sah v. State of Bihar, AIR 1983 SC 1086 and in view of law laid down by the Hon'ble Apex Court in Saheli, a Women's Resources Centre through Mrs. Nalini Bhanot v. Commissioner of Police (AIR 1990 SC 513) and in view of law laid down in D.K. Basu v. State of West Bengal (AIR 1997 SC 610).

Recently in Gurdev Kaur & others V. Kaki & others, AIR 2006 SC 1975, the Hon'ble  Apex Court has given a note of caution to such orders which are stagmatic on the justice delivery system in the mind of the public at large and has held; "Judges must administer law according to the provisions of law.  It is the bounden duty of judges to discern legislative intention in the process of adjudication.  Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos.?

Unmindful of law, as laid down above, the District Magistrate and Superintendent of Police have allowed their whims to prevail over natural justice who has committed breach of trust to  public office. A public office is a trust under the constitutional mechanism, any breach of which amounts to treason, which becomes aggravated by the nature of office held by a particular person. It amounts to be an offence against the State, besides being an offence preparing a document to injure a citizen which is punishable under Chapter VI and X of IPC. A sleeping, dormant, reckless public servant may sleep over his duties and sit over the Constitution, but an activist Judge cannot forgive it and, if a Judge forgives such actions, it cannot function as a champion to uphold the Constitution as established  in India by law. The word "activist" does not mean "pro-active" or "over active" but it means and includes to cover a State functionary who is neither sleeping over his constitutional obligation, nor is reckless in performing his duties.

A court of law, in our set up, can't remain a mute spectator to attempts of Jungle rule.Any action offending the basic theories of "origin of State" must be dealt with sternly by every nationalist, otherwise the national fabric would be torned into threads, so as to drag India into a primitive stage.

The word "terror" has been defined as creating panic, affright dread and threat. Any unmindful act causing panic, fear or awe falls under the definition of terrorism and such action by any State functionary is a gravest sin, as the person involved in any such act of terrorism is representing the State, holding constitutional post and extracting money from the State Exchequer in the form of salary; it is a matter of deep concern. The very foundation of the State is based upon maintenance of law and order, strictly in accordance with the Constitution and, laws framed thereunder. A simple thief having involved in theft, once in his lifetime, cannot be termed to be an anti-social or gangster. Rigorous involvement in anti-social activities can make a person gangster, for which cogent evidence is required. What to say about cogent evidence, there are no allegations in this regard as against the accused applicant.

There is nothing, as against the accused applicant, which may fall under the definition of gang 'as defined in Section 2 (b) (i to xv) or 'gangster' as defined under Section 2 (c) of the U.P. Gangster & Anti Social Activities (Prevention) Act, 1986.

In Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) SCC 499, the Hon'ble Apex Court has held as under:

"The judicial process should not be an instrument of oppression or needless harassment. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charge for.'

'Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance."

The rights of liberty includes a right to live with dignity which cannot be taken away by the District Magistrate in such a reckless manner.   It deserves all condemnation at the command of a conscious citizen having respect for 'rule of law'.

The Chief Secretary, Government of U.P. is directed to ensure that the person, who is passing such idiotic order, must not be given charge of District, so as to play with the fundamental rights of the poor public, who are 'sovereign' and, a civil servant hold an office and authority on behalf of 'sovereign', under the constitutional mechanism.

 This court is bound to implement 'rule of law', and any violator must be dealt with. The Chief Secretary, Government of U.P. is required to hold an inquiry against the erring District Magistrate and inform about outcome of the inquiry including action taken report to this court within 30 days from receipt of this order positively, failing which the  Chief Secretary, Government of U.P. shall have to appear, in person, to explain the circumstances. The order includes grant of compensation to the victim which may be paid out of State expenses but which shall definitely be recovered from the erring official.

The bail application is accordingly disposed of.

The Registry is directed to send a copy of this order to the Chief Secretary, Government of U.P., without delay. Office to place the inquiry report / action taken report on 8.8.2012  before this Court.

Order Date :- 3.7.2012

Ram.