Allahabad High Court
Subhankar Gupta vs State Of U.P. on 5 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5171
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 13 Case :- BAIL No. - 10313 of 2018 Applicant :- Subhankar Gupta Opposite Party :- State Of U.P. Counsel for Applicant :- R.N. Shukla Counsel for Opposite Party :- G.A. Hon'ble Attau Rahman Masoodi,J.
Heard learned counsel for the accused-applicant and Sri V.K. Shahi, learned A.A.G. and Sri S.N. Tilhari, learned A.G.A. for the State.
The applicant has been implicated under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities(Prevention) Act, 1986 on the premise that five criminal cases are pending against him under Sections 392 and 411 I.P.C. and thus there is a clear apprehension at the end of the accused applicant of causing fear and terror in the society and the innocent citizens are not coming forward to lodge an F.I.R. against him. It is also alleged in the gangchart that the gang comprising of the accused applicant under the leadership of Suraj Yadav are quite active and if the accused applicant is set free, there is apprehension of commission of further crimes, thus, curtailing the liberty of the accused applicant is imminently necessary.
This Court may note that the past criminal history of the accused applicant of five criminal cases under Sections 392/411 I.P.C. is based on some recovery from him. The recovery made on 9.6.2018 gave rise to case crime no. 354 of 2018 under Sections 392/411 I.P.C. wherein the applicant was enlarged on bail by an order dated 13..9.2018 filed as annexure no. SA-1 to the supplementary affidavit. The recovery of other articles made on 9.6.2018 has been linked to case crime nos. 254 of 2018, 324 of 2018, 89 of 2018 and 298 of 2018. These are the F.I.Rs. registered much prior to the date of recovery made on 9.6.2018. The gang-chart does not record as to how the recovered items on 9.6.2018 can conclusively be linked to the aforesaid cases so as to form a definite opinion for inflicting the Gangsters Act against the accused applicant. It is submitted that a mere suspicion raised on the basis of recovery may not be a safe premise for inflicting the Gangsters Act against an accused who is yet to be found guilty after holding the trial.
It is further submitted that the applicant is not a previous convict, therefore, in any view of the matter, slapping of Gangsters Act upon the applicant on the basis of mere suspicion is misplaced and an abuse of the process of law.
Learned A.G.A. has strongly opposed the bail application on the ground that once the conduct of an accused person is found linked to so many criminal cases registered against him, this can be a sufficient base for the administration to invoke the provisions of Gangsters Act against an accused person as is well settled in a full Bench Judgment rendered by this Court in the case of Ashok Kumar Dixit versus State of U.P. and another reported in AIR 1987 All 235.
Having regard to the submissions putforth by learned counsel for the parties and regard being had to the entirety of material placed on record, this Court is of the opinion that the imposition of Gangsters Act calls for a deeper application of mind and the satisfaction of the authorities must base on a definite opinion against an accused person.
In the present case, the applicant while under detention has been subjected to the rigours of Gangsters Act so as to prevent the operation of bail orders. Such a mechanism evolved by the authorities is malicious and does not serve the purpose of law. The offences to which the recovery has been linked cannot be assumed as anti-social unless the accused applicant is held guilty. The position becomes equally relevant when bail orders are passed in favour of an accused. In the circumstances where an accused has been granted bail or is not a previous convict, the matter deserves deeper scrutiny and cannot be dealt with superficially.
It is always open to the prosecution to seek cancellation of bail order as and when there is any larger apprehension to public security so that there is no misuse of liberty by the accused applicant released on bail.
It is also to be noted that the trial under Gangsters Act has a precedence over other cases by virtue of Section 12 of the Act. It is unfortunate that the charge-sheet has not been filed in the present case which clearly shows that the application of mind for inflicting the Gangsters Act against the accused applicant is based on mere surmises and conjectures. Slowing down the progress of criminal cases on the ground of slapping Gangsters Act is even otherwise counter productive.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and without expressing any opinion on the merit of the case, a case for bail is made out.
Let the applicant namely Subhankar Gupta involved in Case Crime No. 497/2018, under Section 2/3 of U.P. Gangsters and Anti-Social Activities(Prevention) Act, 1986, Police Station Guramba, District Lucknow be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 5.12.2018 kanhaiya