Rajesh Kumar Pandey vs The State Of U.P.
2013 Latest Caselaw 1640 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13 						A.F.R.
 

 
Case :- BAIL No. - 780 of 2013
 

 
Petitioner :- Rajesh Kumar Pandey
 
Respondent :- The State Of U.P.
 
Petitioner Counsel :- Kapil Misra,Sunil Dixit
 
Respondent Counsel :- Govt.Advocate,Indrajeet Shukla
 

 
Hon'ble Anurag Kumar,J.

Counter affidavit and supplementary-counter affidavit filed today, are taken on record.

Heard Mr. Jyotindra Misra senior Advocate, learned counsel for the applicant, Mr. Indra Jeet Shukla, learned counsel for the complainant of Crime No. 210 of 2012, learned A.G.A. for the State and perused the record.

This is a bail application moved by the accused applicant, Rajesh Kumar, who is involved in Case Crime No. 291 of 2012, under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention), Act 1986, P.S. Tarabganj, District-Gonda.

Learned counsel for the applicant has submitted that applicant was falsely implicated in this case. As per gang-chart, there are only three cases against the applicant. In all these three cases, applicant was on bail. After registration of case Crime No. 210 of 2012 under Section 302 I.P.C. he was involved in two more false cases. Request for bail was made.

Mr. Indra Jeet Shukla, learned counsel for the complainant of Case Crime No. 210 of 2012 under Section 302 I.P.C., submits that any person can opposed the bail application and assist the court by presenting the right fact before the court.

Learned counsel for the applicant submits that complainant of Section 302 case has no right to opposed the bail application, but in the interest of justice he has no objection if counsel puts right fact before this Court and assist the court.

Mr. Indra Jeet Shukla, learned counsel for the complainant strongly opposed the bail application saying that the applicant is a gang leader and he is operating an organized gang with the help of other persons. He has a criminal antecedent of assault, mischief, causing hurt, attempt to murder, drug trafficking, extortion, grievous hurt, Goonda's Act, murder, abduction and robbery. Besides three cases shown in gang chart,  there are seven more cases against the applicant and the conduct of the co-accused is such that applicant is not entitled for bail as they are moving the application before the trial court and making hindrance in smooth running of trial, and an accused of Gangster Act is not entitled for bail just on the ground that in all the cases shown in gang-chart he is on bail. Section 9(4)(b) of the Gangster Act put a rider of grant of bail and considering that rider applicant is not entitled for bail.

The learned counsel for the complainant of Section 302 I.P.C. case in this respect relied on 2008(2) JIC 143 (All), Anil Singh @ Dau Versus State of U.P., and (2007) 7 Supreme Court Cases 798, Union of India Versus Shiv Shanker Kesari. The single judge of this court in Anil Singh (supra) case held that "Bail should, therefore, be granted only where there are reasonable grounds for believing that he is not guilty of such offence.  The arguments from the side of the accused was that in other cases which have proceeded against the accused, he has been enlarged on bail and that he is in detention for the last six months, that alone will not provide reasonable grounds for believing that he is not guilty of such offence."

Learned counsel for the complainant of Section 302 I.P.C. case submits that the provision of Section 37(1)(B)(ii) of Narcotic Drugs and Psychotropic Act, 1985 are similar to that of Section 19(4)(b) of the Gangster Act and Hon'ble Supreme Court in the case of  Union of India Versus Shiv Shanker Kesari (supra) held that for granting bail both the conditions prescribed under Section 37(1)(b)(ii) that is satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail must be satisfied. If either of these two conditions is not satisfied the bar operates and accused cannot be released on bail.

Explaining the meaning of expression "reasonable ground" Hon'ble Apex Court in Shiv Shanker Kesari case (supra) further held that there must be existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

Mr. Indrajeet Shukla submits that in the present case also there is no ground for granting bail as provided in Section 19(4)(b) of the Gangster Act because there is no reasonable ground for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. The previous conduct of the applicant clearly shows that he can always commit offence while on bail.

Learned counsel for the applicant in reply submits that apart from the case shown in the gang-chart, there are seven more cases against the applicant. Out of which, in four cases he was already acquitted and in two cases, bail was granted and in one case he was not arrested. He further submits that the details of these cases were given by him in para 7 of the affidavit which was filed in support of bail application. There is no dispute that in a case Section 3(1) of U.P. Gangster Act the accused can be granted bail only on the satisfaction of the court; that he is not guilty of such offence and he is not lilely to commit any offence while on bail. In this respect, he relied on the Division Bench's case of this Court 1986(23) ACC 385, Naulakh Versus State of U.P. and others, in which, the Division Bench held that "Section 19(4) is a provision relating to the grant of bail which is a step prior to the conclusion of the trial. We are interpreting the words reasonable ground occurring in the sub section (4) of Section 19 as meaning that on the prima facie matter available on the record or in the police papers the Court can come to the conclusion that the accused charged is not guilty of any such offence or is not likely to commit any offence while on bail. This prima facie satisfaction that the accused is not guilty of any such offence or is not likely to commit any offence while on bail."

Applicant is on bail in all the cases shown in gang-chart and at the time of granting permission for the offence of Gangster Act. The concerned authority has taken action under Gangster Act on the basis of these three cases only and as the applicant is on bail in these three cases and after 2005 there is no case against the applicant except a notice under Section 2008 in which he was exonerated. It is sufficient for reasonable ground that no offence is made out and he will not commit any offence while on bail. The court has to look only on the material available on the record regarding that case only and as per material on record. Applicant is entitled for bail.

Giving thoughtful consideration to the submission made by the parties' counsel, Section 19(4) of the U.P. Gansgter Act and Anti Social Activities (Prevention) Act, 1986 provides as follows.

"Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless.................."

(a)......................................

(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

It is quite clear from the above provision that only on this basis that accused is on bail in all the cases shown in the gang-chart, he is not entitled for bail. This can be one of the ground for satisfying the Court that prima facie no offence is made out against him, but it cannot be a sole ground for the bail.

Coming to the facts and circumstances of this case and looking into the matter that against applicant there are cases before the year 2005 only. In most of those cases, he was acquitted and only two cases are pending even in which he was on bail and after 2005 there is no case against him except the cases shown in the gang-chart. The Case of Section 302 I.P.C. the complainant of which case is opposing the bail application is the first case which is against the applicant and the two more cases shown in the gang-chart is after the registration of the case under Section 302 I.P.C.

Considering all this aspect of the case and without expressing any opinion on the merits of the case, I find it a fit case for bail.

Let the accused applicant, Rajesh Kumar Pandey, involved in the aforesaid case crime number be released on bail on his furnishing a personal bond and two local reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-

1. The applicant will continue to attend the court concerned on the dates fixed.

2. The applicant will not tamper with the prosecution witnesses.

3. The applicant will not indulge in any illegal activities during the period of bail.

In case of breach of any of the above conditions, the trial court would be at liberty to cancel the bail of the applicant.

Order Date :- 3.5.2013

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