Rohit @ Rohitash vs State Of U.P.
2022 Latest Caselaw 22394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 79
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24996 of 2022
 

 
Applicant :- Rohit @ Rohitash
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Kuldeep Singh Chahar,Shikhar Awasthi
 
Counsel for Opposite Party :- G.A.,Deepak Dubey
 

 
Hon'ble Subhash Vidyarthi J.
 
1.

Heard Sri Shikhar Awasthi Advocate, the learned counsel for the applicant, Sri Shashi Shekhar Tiwari, the learned A.G.A. for the State and Sri Deepak Dube Advocate, the learned counsel for the informant / victim in Case Crime No. 344/18 under Sections 147/148/149/302/307/506/ 120B I.P.C., P.S. Navabad, Jhansi.

2.The instant application has been filed seeking release of the applicant on bail in Case Crime No. 86 of 2021, under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (which will hereinafter be referred to as ''the Gangsters Act'), Police Station Nawabad, District Jhansi. A copy of the Gang-chart accompanying the F.I.R. mentions involvement of the applicant in a solitary case, namely Case Crime No. 344/18 under Sections 147/148/149/302/307/506/ 120B I.P.C., P.S. Navabad, Jhansi.

3.Sri Deepak Dube Advocate has put in appearance on behalf of the informant of Case Crime No. 86 of 2021 and he has sought to oppose the bail application.

4.Sri. Shikhar Awasthi Advocate has opposed the intervention of the informant of Case Crime No. 344 of 2018 in the present case, i.e. Case Crime No. 86 of 2021 and he has submitted that the informant of Case Crime No. 74 of 2022 does not fall within the definition of victim of the present case

5.Sri Deepak Dube Advocate, the learned Counsel for the informant in Case Crime No. 344/18 under Sections 147/148/149/302/307/506/ 120B I.P.C., P.S. Navabad, Jhansi, has placed reliance on a decision of the Hon'ble Supreme Court in Jagjeet Singh Vs. Ashish Mishra @ Monu (2022) 9 SCC 321, wherein the Hon'ble Supreme Court has been pleased to hold as follows: -

"23. A "victim" within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a "victim" has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that "victim" and "complainant/informant" are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a "victim", for even a stranger to the act of crime can be an "informant", and similarly, a "victim" need not be the complainant or informant of a felony."

* * *

24.1.First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged.

24.2.Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses."

6.In Sudha Singh v. State of U.P., (2021) 4 SCC 781, the Hon'ble Supreme Court entertained and allowed an appeal filed by the wife of a person, who had been allegedly murdered by the accused, against an order of this Court granting bail to the accused in a case involving commission of offence punishable under Section 3(1) of the Gangsters Act.

7.Relying upon the aforesaid judgments, in Criminal Miscellaneous Bail Application No. 46497 of 2022 titled Ramesh Rai @ Matru Rai versus State of U.P., decided on 13.12.2022, this Court held that a victim of a predicate offence certainly has the right to have an opportunity to oppose the application for grant of bail in an offence under the Act and for that purpose, he will have to be treated as a victim of the offence under the Gangsters Act. Where the victim of a predicate offence has come forward to participate in the proceeding by making submissions in opposition of a bail application, he must be given an opportunity of hearing.

8.Since the F.I.R. of the present case mentions Case Crime No. 344/18 as the solitary predicate offence forming basis of lodging of the present F.I.R., and the informant claims to be a victim of the aforesaid predicate offence, he has to be treated as a victim of the present offence and he has the right to make submissions in opposition of the bail application.

9.The complete true copy of the F.I.R. has been filed alongwith a supplementary affidavit filed on behalf of the applicant, which shows that the allegation against the applicant is that he is a member of a gang, which is engaged in commission of several offences, and the gang-chart mentions involvement of the applicant in Case Crime No. 344/18 . The applicant has already been granted bail in Case Crime No. 344/18 by means of an order dated m19-06-2020 passed by this Court in Criminal Misc. Bail Application No. 15563 of 2020.

10.The State has filed a counter affidavit wherein the applicant's involvement in the present case as well as in the solitary case mentioned in the gang-chart has been disclosed.

11.A supplementary affidavit filed on behalf of the applicant mentions the applicant's involvement in six more cases, in all of which, the applicant has already been granted bail and copies of the bail orders have been annexed with the supplementary affidavit.

12.Although, the matter was heard at some length on the previous dates on 22.11.2022, 30.11.2022 and 02.12.2022 but thereafter the learned AGA as well as the learned counsel opposing the bail application on behalf of the victim of the predicate offence had sought one week's time to file a counter affidavit, but no counter affidavit has been filed till date.

13.Sri. Shashi Shekhar Tiwari, the learned AGA and Sri. Deepak Dube Advocate, the learned Counsel for the victim have opposed the prayer for grant of bail and they have submitted that the allegations against the applicant are of serious nature. However, they could not dispute the aforesaid aspects of the matter.

14.Case Crime No. 86 of 2021, under Sections 2/3 of the Gangsters Act, in which the applicant is seeking bail, has been registered by means of an F.I.R. dated 13.03.2021 alleging that the applicant is a member of an organized gang which is used to committing of offences like murder. On 21.07.2018, the members of the gang committed murder of one Sanjay Verma, regarding which Case Crime No. 344/18 has been registered. The FIR further alleges that because of the fear of the offences committed by the gang, no person dares to lodge a complaint or give evidence against it. A copy of the Gang-chart mentions involvement of the applicant in a solitary case bearing Case Crime No. 344/18.

15.Sri. Shikhar Awasthi, the learned Counsel for the applicant has submitted that a perusal of the narration made in the F.I.R. indicates that the applicant has been implicated in the present case solely on the basis of his involvement in Case Crime No. 344/18, and prima facie it appears that the applicant has been implicated by the police without any material against him to establish that he is a gangster.

16.In Ashok Kumar Dixit versus State of U. P. AIR 1987 All 235, while upholding the constitutional validity of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, a Full Bench of this Court held that: -

"73....If we advert to Section 2(b) of the Act, which defines the term ''gangster' we would find significant words. They are "acting", ''singly or collectively', ''violence or show of violence', ''intimidation', ''coercion', or ''unlawful means'. Thus, for booking a person under the provisions of the Act, the authorities have to be prima facie satisfied that a person has acted. The authority has to be satisfied that there is a reasonable and proximate connection between the occurrence and the activity of the person sought to be apprehended and that such activities were to achieve undue temporal, physical, economic or other advantage. There need not be any overt or positive act of the person intended to be apprehended at the place. It is enough to prove active complicity which has a bearing on the crime.

74. While laying down so, we should not be oblivious of the avowed object of the Act. Under the ordinary criminal law, it is sometimes difficult to bring to book the overlords of crime and underworld because they seldom operate in person or in the public gaze. They indulge in clandestine operations which threaten to tear apart the very fabric of society. It is this purpose which the Act seeks to achieve.

75. But nevertheless we must sound a note of caution. Provisions of the Act cannot be used as a weapon to wreak vengeance or harass or intimidate innocent citizens or to settle scores on political or other fronts. The prosecution has to bear in mind that it has to bring home the guilt."

(Emphasis supplied)

17.In Subhash versus State of U.P., 1998 All.L.J. 4870 : 1998 SCC OnLine All 973, a Division Bench of this Court held that: -

"We are to see, if under the concept of the offence, created by the Act, there must be some allegation of any act or omission towards commission of the offence. While taking up the question of constitutional validity of the Act in the case of Ashok Kumar Dixit [Ashok Kumar Dixit v. State of U.P., 1987 ACC 164 : (1987 All LJ 806)], the Full Bench had made certain very important observations which are relevant for the present point. It was observed that a person was not liable to be punished under the Act merely because he happened to be a member of the group. The Court was, rather, of the view that a person could be accused of an offence only if he had chosen to join a group which indulges in anti-social activities, defined under the Act, with use of force for obtaining material or other advantages to himself or to any person. The Court was of the view "The element of actus reus is hence clearly present in the offence created under the statute." Whenever any act or omission covered by Sections 2 and 3 of the Act is reported an offence is made out and as a corollary it may be indicated without any fear of contradiction that unless an allegation is there concerning an act or omission on the part of an accused, covered by the definition of the term "gang" or "gangster", no F.I.R. should be maintainable. Whether the allegations are true or false will be a matter for investigation, but unless the allegations of an offence under the Act are indicated, as F.I.R. may not be justifiable whatever large the number of past acts be alleged against him."

(Emphasis supplied)

18.Upon scrutinizing the facts of the case in light of the aforesaid law, what prima facie appears at this stage is that although the F.I.R. alleges because of the terror of the gang, of which the applicant is a member, no person comes forward to lodge a complaint against them, an F.I.R. has been filed against the applicant. The informant of Case Crime No. 86 of 2020 has not only filed an F.I.R. against the applicant, but he has even come to oppose the bail application of the applicant in the present case.

19.Prima facie it appears that the applicant has been implicated in the present case merely because of his involvement in Case Crime No. 344/18 and the applicant is languishing in jail since 26.04.2022.

20.In view of the aforesaid discussion, there appears to be no reasonable ground for prima facie believing that the applicant is guilty of the offence alleged.

21.The minimum punishment which can be imposed in case of the applicant's conviction is imprisonment for two years.

22.There is nothing on record which may give rise to a reasonable apprehension that the applicant may tamper with the evidence or influence the witnesses or that the applicant will abscond and will not face the trial or that he is likely to commit any other offence in case he is released on bail.

23.The applicant has already been granted bail in all the cases mentioned in the Gang-chart and in four other cases in which he is involved, he stands acquitted in four cases, the police has filed final reports in two cases and a complaint filed against him stands rejected and there is no material indicate that the larger interest of the public or the State would be affected in case the applicant is enlarged on bail.

24.In view of the aforesaid discussion, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.

25.In view of the aforesaid discussion, the bail application is allowed.

26.Let the applicant Rohit @ Rohitash be released on bail in Case Crime No. 86 of 2021, under Sections 2/3, Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Nawabad, District Jhansi, on his furnishing a personal bond and two reliable sureties, each of the like amount, to the satisfaction of the court concerned subject to following conditions:--

(i)The applicant will not tamper with the evidence during the trial.

(ii).The applicant will not influence any witness.

The applicant will appear before the trial court on the dates fixed, unless personal presence is exempted.

(iii)The applicant shall not directly or indirectly make 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 to any police officer or tamper with the evidence.

(iv)In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of bail.

Order Date - 22.12.2022

Ashish Prasad