Uttarakhand High Court
Yashpal Tomar vs State Of Uttarakhand on 30 August, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No.1569 of 2022
Yashpal Tomar ...Applicant
Versus
State of Uttarakhand ...Respondent
Present:-
Mr. Arvind Vashistha, Senior Advocate, assisted by
Mr. Ajay Joshi, Advocate for the applicant.
Mr. S.S. Adhikari, D.A.G. for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Yashpal Tomar is in judicial custody, in FIR/Case Crime No. 106 of 2022, under Sections 2 (b)
(i), 2 (b) (ix)/3 of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 ("the Act"), Police Station Kotwali Jwalapur, District Haridwar. He has sought his release on bail.
2. Heard learned counsel for the parties and perused the record.
3. The FIR was lodged against the applicant under the provisions of the Act, on the basis of Gang Chart, which records three cases, Case Crime No. 741 of 2021, under Section 386, 506 IPC, Police Station Jwalapur, Case Crime No. 321 of 2021, under Section 387, 452, 506 IPC, Police Station Kankhal and Case Crime No. 349 of 2020, 2 under Section 17/30 of the Arms Act, 1959 ("the Arms Act"), Police Station Ramnagar, Nainital. The FIR also records that, in fact, the applicant has made a gang. He is leader of it. He has lodged many reports against various persons so that they may be compelled and their properties may be grabbed by the applicant and his gang. They have created terror in the society.
4. Learned Senior counsel for the applicant would argue that no other cases except the cases mentioned in the gang chart may be considered for the purpose of the bail. It is argued that the first FIR No. 741 of 2021, Police Station Jwalapur does not make out a case of extortion against the applicant. It is a dispute between two brothers. The applicant has falsely been roped in into it. The applicant has already got bail in that case, despite the fact that earlier also the applicant was involved under the provisions of the Act.
5. With regard to the second FIR No. 321 of 2021, it is argued that, in fact, it does not make out a case of extortion. It is argued that after an agreement, the informant of that FIR had taken Rs.80 Lakhs from the applicant, the applicant merely requested with regard to execution of deed and a false case was lodged. Third case, is under the provisions of the Arms Act, it is argued that 3 based on the mere renewal of the license due to COVID-19 Pandemic situation, the case has been lodged.
6. Learned Senior counsel would argue that general reputation cannot be a ground to confine a person behind bars. He has referred to the judgment in the case of Ashok Kumar Dixit Vs. State of U.P. and another, 1987 SCC OnLine Allahabad 203. Particularly para 15 of it has been referred to, which is as hereunder:-
"15. For the same reason, the submission of Sri Rakesh Dwivedi (discussed later) to the effect that the Act attempts to punish a mere status of a person without there being any actus reus has to be rejected. A person is not liable to be punished under the Act merely because he happens to be a member of a group. He comes within the clutches of the Act only if he chooses to join a group which indulges in anti-social activities defined under the Act with use of force for gaining material advantage to himself or any other person. The element of actus reus is hence clearly present in the offence created under the statute. We will discuss this aspect of the case in greater depth later in this judgment."
7. Learned Senior Counsel would also submit that in order to attract the provisions of the Act, it has to be shown that offences which make out the case where committed within the local limits of the particular State because it is a State Act.
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8. It is also argued that Section 23 of the Act provides for making of the Rules, but in the State of Uttarakhand, such Rules are not framed. Therefore, how the gang chart is prepared? How it is approved? It is not clear. Reference has been made to the Rules made by the State of Uttar Pradesh i.e. Uttar Pradesh Gangster and Anti Social Activities (Prevention) Rules, 2021 to argue that those Rules provide for complete procedure to proceed in the matter.
9. On the other hand, learned State counsel would submit that the applicant has a huge criminal history, which is enclosed as Annexure 11 to the counter affidavit. There are many cases of the year 2021-2022, which are pending as per the statement. Learned counsel would submit that informant has reiterated the version of the FIR and other witnesses have stated about it. The applicant has terror in the society, who lodged false report against them and terrorise them. In fact, he would get false report of rape also lodged. Therefore, it is argued it is not a case fit for bail.
10. Undoubtedly, the reputation of a person per se is not a ground to detain a person even. If it is so, it definitely makes out a case for bail. But, then the Act has been enacted for the prevention and coping with the 5 Gangsters and Anti Social Activities and for matters connected therewith.
11. In the case of Ashok Kumar Dixit (supra), the Hon'ble Allahabad, High Court's Full Bench observed about the menace of organized crime, violence, black marketing, torture etc. In para 26, the Hon'ble Court observed as hereunder:-
"26. Gangsterism is aimed at creating special organisations and groups to commit murder, use violence, and take people for a ransom or other demands, forcible deprivation of freedom often involving torture black-marketing etc. Gangsterism could also mean the destruction of buildings, ransacking and similar acts in a cruel manner to terrorise the people. The Court can take judicial notice of the situation previling in the State, which has made the life of citizens difficult if not a veritable hell. Threats are extended to the tenants to leave the houses to make the same available to the landlords and vice versa. Curious and novel methods have been evolved by such groups such as holding out the threat to abduct or kidnap the daughters of landlords and tenants and at other times minor sons. An atmosphere of fear and blackmail pervades the State. For dealing with gangsterism, there was no legislation. "Dadagiari", which is the word ascribed to the activities aforesaid had acquired a definite meaning. Some people called them as Godfathers."
12. Further in para 68 of the judgment, the Court observed that "the Act seeks to punish declared criminals who have deliberately chosen the life of 6 crime. The activities of these professional perpetrators of organised crimes, violence and orgy has a far more baneful effect on the health and morals of the society and its people. If the activities of such recidivists are subjected to same punishment as the other ordinary criminals, the confidence of public in the efficacy, and efficiency of State administration is bound to shake."
13. In the case of Dharmendra Kirthal Vs.State of Uttar Pradesh and another, (2013) 8 SCC 368, the Hon'ble Supreme Court, while interpreting the provisions of the Act observed that "in essence, liberty of an individual should not be allowed to be eroded but every individual has an obligation to see that he does not violate the laws of the land or affect others' lawful liberty to lose his own. The cry of liberty is not to be confused with or misunderstood as unconcerned senile shout for freedom. It may be apt to add here that the protection of the collective is the bone marrow and that is why liberty in a civilised society cannot be absolute. It is the duty of the courts to uphold the dignity of personal liberty. It is also the duty of the court to see whether the individual crosses the Lakshman rekha that is carved out by law is dealt with appropriately". 7
14. It is true that the FIR in the instant case has been lodged with a gang chart, which includes three offences. According to one FIR No. 741 of 2021, the applicant threatened the informant of that case to transfer his land by way of gift deed in favour of the brother of the informant. In the second FIR No. 321 of 2021, the applicant threatened the informant of that case to execute the deed in Delhi, despite the fact that agreement had already been cancelled.
15. The Act does not make any distinction with regard to the offences committed within the territorial jurisdiction of one State or offence committed beyond the territorial limits of the State. It speaks of offences only. The FIR itself records many cases, which according to the FIR were falsely got lodged by the informant so as to extract money by terrorising people. The informant has stated about it. There are many witnesses, who have stated about the role of the applicant, including Mintu Bhati, Mahendra Singh, Tosh Kumar and Manoj Kumar. A witness Kiran Kaur had told it to the Investigating Officer that, in fact, she was threatened to lodge false cases of rape against two persons by the applicant and his associates. 8
16. The Act has been enacted in order to maintain order in the society to protect people from anti social activities.
17. Admittedly, the applicant has a long criminal history. The informant states that the people would scare of coming forward to speak against the applicant. He got false report lodged, gets them traumatized, extract money etc.
18. Having considered the entirety of facts, this Court is of the view that it is not a case fit for bail. Accordingly, the bail application deserves to be dismissed.
19. The bail application is dismissed.
(Ravindra Maithani, J.) 30.08.2022 Jitendra