Allahabad High Court
Atique Ahmed vs State Of U.P. on 3 February, 2012
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 AFR. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10780 of 2009 Petitioner :- Atique Ahmed Respondent :- State Of U.P. Petitioner Counsel :- Ravindra Sharma,Daya Shanker Mishra,Khan Saulat Hanif,Satish Trivedi Respondent Counsel :- Govt. Advocate,M.L.Shukla Hon'ble Devendra Pratap Singh,J.
1. This bail application, after being released by some Hon'ble Judges of this Court, was nominated to this Bench by an order of Hon'ble the Chief Justice dated 17th of January 2012 when I was sitting in a Division Bench and subsequently it was listed and heard before this Bench on 30th and 31st of January 2012. This is how, this bail application was placed before and is being disposed off, by this Bench.
2. Heard Sri Satish Trivedi, Sri Daya Shanker Misra, learned Senior Advocates assisted by Sri Ravindra Sharma and Sri Khan Saulat Hanif for the applicant. Sri S.G.Hasnain, learned Addl. Advocate General assisted by Sri Mewa Lal Shukla, learned counsel for the State and Sri Shyam Kumar Singh holding brief of Sri Arvind Srivastava for the Intervenor.
3. The applicant seeks bail in a case Crime No. 419 of 2007 registered at Police Station Dhoomanganj and lodged by its Station Officer under Section 2/3 of the Uttar Pradesh Gangesters & Anti Social Activities (Prevention) Act, 1986 (herein after referred to as the 'Act').
4. The applicant has been a Member of the State Legislative Assembly, Uttar Pradesh from Allahabad for five consecutive terms and was also a Member of Parliament on a Samajwadi Party ticket.
5. It is alleged in the first information report that while the informant was on patrol, he was informed by the people that the applicant has an organised gang of 11 members, including himself, which indulges in anti social activities for pecuniary gain for its members, jointly and severally and commits offences punishable under Chapters (xvi), (xvii) and (xxii) of Indian Penal Code. It discloses a list of eight cases and mentions that the gang chart was approved by the District Magistrate on 27.9.2007. This information was lodged on 30.9.2007 at the police station at 15 minutes past mid night.
6. It is alleged that the Samajwadi Party and Bahujan Samajwadi Party were in alliance, but in June 1995 the Bahujan Samajwadi Party entered into an alliance with the Bhartiya Janta Party and with its help, Miss Mayawati of the Bahujan Samajwadi Party was installed as the Chief Minister and was asked to prove her majority on the floor of the House on 20th June 1995 but despite requests, the applicant refused to support it, but to the contrary tried to win over other M.L.As. which led to an incident in the State Guest House at Lucknow, whereafter the troubles of the applicant started. Immediately after winning the vote of no confidence on 20th June 1995, a detention order under the National Security Act was passed on 21.6.1995 against the applicant which was subjected to challenge before the Apex Court impleading the Chief Minister in person and making specific allegations against her, but when notices were issued and an interim order was passed, on the next date fixed before the Court, without contesting the allegations, the detention order was withdrawn.
7. It is further alleged that the applicant was also detained invoking National Security Act in case no. 257 of 2002 which was revoked by the Advisory Committee.
8. It is alleged that this persecution continued in all the three tenures of the Bahujan Samajwadi Party's government. It is disclosed in detail in sub-paragraphs (ii), (iii), (iv) of paragraph 9 of the application.
9. It is alleged that earlier also several cases under the Gangsters Act were lodged against the applicant during her tenure, but in all those cases, the applicant was either discharged or a final report was submitted. They are case Crime No. 27 of 2001; case Crime No.89 of 2001; case Crime No. 91 of 2001; case Crime No. 267 of 2002. But he was discharged in all those cases. Another case Crime No. 253 of 2002 under Section 2/3 of U.P. Gangesters Act was lodged and the applicant was arrested on 6th of June 2002, but was again discharged. Yet another case Crime No. 311 of 2002 under Section 2/3 of U.P. Gangesters Act was lodged on 4th of August 2002, but a final report was submitted by the CB CID.
10. It is urged that the entire exercise of lodging the FIR is malicious only to wreck vengeance for political considerations against the applicant. It is also urged that there is no evidence on record to show that the applicant can be convicted for the charged offence. It is further urged that exercise of power is malafide and stale cases have been taken into consideration. Further, it is urged that there are no chances of the applicant misusing the bail or tampering witness. It is also urged that co-accused Farhan, Abid Israr, Ejaj Akhtar and Akbar have also been enlarged on bail and the applicant is also entitled to parity. Lastly, it is urged that though the applicant has remained in jail for more than four years, even charges have not been framed while the maximum sentence is only ten years.
11. Per contra, learned Addl. Advocate General has urged that looking into the limitations placed by Section 19 of the Act and his past long criminal history, he is not entitled to bail as he is bound to repeat crimes and terrorise witnesses.
12. Before the Court deals with the arguments, it would be necessary to consider the law on this issue.
13. The Act is a special legislation where apart from limitations placed under the Criminal Procedure Code (hereinafter referred to as the 'Code'), further limitations have been provided for grant of bail under Section 19. The Court has not been confronted with any decision of the Hon'ble Apex Court with regard to Section 19 of the Act. However, the parties are unanimous that the rigours provided for grant of bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') are in parameteria and so also there is similarity in the objects of both the Acts. For ready reference, both are quoted herein below:
37. Offences to be cognizable and non-bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2) of 1974-
(a) every offence punishable under this Act shall be cognizable.
(b) no person accused of an offence punishable for (offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity) shall be released on bail or on his own bond unless-
(I) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) 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.
(2) The limitation on granting the bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2) of 1974) or any other law for the time being in force, on granting of bail.
19. Modified application of certain provisions of the code -(1) Notwithstanding anything contained in the Code every offence punishable under this Act or any rule made thereunder shall be deemed to be a cognisable offence within the meaning of clause (C) of Section 2 of the Code and cognizable case as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that -
(a) the reference in sub-section (1) thereof to "Judicial Magistrate" shall be construed as a reference to "Judicial Magistrate or Executive Magistrate".
(b) the reference in sub-section (2) thereof to "fifteen days", "ninety days" and "sixty days", whereever they occur, shall be construed as references to "sixty days", "one year" and "one year", respectively.
(C) sub-section (2-A) thereof shall be deemed to have been omitted.
(3) Sections 366, 367 and 371 of the Code shall apply in relation to a case involving an offence triable by a Special Court, subject to the modification that the reference to "Court of Sessions", whereever occurring therein, shall be construed as reference to "Special Court."
(4) 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) the Public Prosecutor has been given an opportunity to oppose the application for such release and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not party of such offence and that he is not likely to commit any offence while on bail.
(5) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code.
14. A bare perusal of the aforesaid provision would show that under the Act, the impediments for granting bail are in addition to those prescribed in the Code. It would be useful to consider what the Apex Court says in its recent decision while considering grant of bail under the Code. In the case of Sanjay Chandra vs. C.B.I. (2011 (75) ACC 934), after considering a large number of cases with regard to grant of bail under the Code, it has held as following in paragraph 14:
"In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. This object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."
15.It has gone on to hold as follows in paragraph 15:
"In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but there is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan (2005 (2) SCC 42), observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."
It has quoted with approval its earlier decisions in the following paragraph 22:
"Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."
It further observed :
"Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
It went on to say :
"This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused (See Babba v. State of Maharashtra, Vivek Kumar v. State of U.P. And Mahesh Kumar Bhawsinghka vs. State of Delhi."
16. While considering the ambit and scope of Section 37 of the NDPS Act (which is identical to Section 19 of the Act), the Apex Court went on to hold as under in State of Uttaranchal vs. Rajesh Kumar Gupta (2007) (57) ACC 552) in paragraph 23:
"Section 37 of the 1985 Act, must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes."
It further goes on to quote with approval of its earlier decision in Ranjitsing Brahmajeetsingh Sharma vs. State of Maharashtra and another's case (2005) (5) SCC 294 which were in the following terms:
"The wording of section 21 (4) in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the Court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21 (4) of M.C.O.C.A., therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail.........."
However, even though it found that the Court, while granting bail, had not considered the effect of Section 37, did not set aside the order granting bail as the accused had already remained in jail for more than two years.
17. A Full Bench of our Court in the case of Ashok Kumar Dixit vs. State of U.P. (1987 (24) ACC 164, while considering the constitutionality of the Act, has held to the following effect in paragraph 61 :
"But nevertheless we must sound a note of caution. Provisions of the Act cannot be used as a weapon to wreck 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. Then, there is a further provision for appeal. Thus, the power of judicial review of this Court has been preserved. It is ultimately found that a person was proceeded with in sheer bad faith out of melice and by way of political vendette the authorities do not enjoy any immunity under section 22 of the Act. This immunity is confined only to acts done in good faith."
18. Let us consider the cases shown in the gang chart.
19. The first case shown in the FIR is case Crime No.34 of 2003 lodged under Sections 147, 148, 149, 307, 302, and 120B and 34 IPC and 7 Criminal Law Amendment Act at P.S. Dhoomanganj. Copy of the FIR is annexed with the bail application, where it is allegted that Ansar, Israr and Masrur committed the murder of one Ashraf on 20th of January 2003 wherein the applicant was nominated as having conspired in the crime. It has been alleged that the applicant had remained in jail since 6th of June 2002, eight months prior to the incident, while one actual assailant Ansar was confined at Moradabad Jail. Two co-accused Sita Ram Shukla and Mohd. Abrar Khan challenged the charge sheet which showed their involvement and the charge sheet against them was quashed on 21st of May 2007. In fact the applicant was granted bail in this case four years prior to this present FIR on 28th of June 2003 itself.
20. The second case is Case Crime No. 34 of 2005 lodged under Sections 147, 148, 149, 307, 302, 120B IPC at P.S. Dhoomanganj (better known as Raju Pal murder case). In this case a sitting BSP MLA Raju Pal was done to death and it was alleged that the crime was done at the behest of the applicant. It is stated that Raju Pal was a hardend and professional killer himself and had several enemies including his relative Ranjeet Pal. It is also alleged that the applicant and Raju Pal had extreme political differences. The applicant was released on bail by this Court by a detailed order on 12th of April 2005 and even though statements of 13 prosecution witnesses were recorded, the trial has been stayed at the instance of the informant of that case.
21. The third case relates to case Crime No. 230 of 2007 lodged under Sections 147,. 148, 149, 323, 341, 342, 364, 504, 506, 34 IPC and 7 Criminal Law Amendment Act at P.S. Dhoomanganj. This case related to an incident of 28.2.2006 when the informant was allegedly abducted and asked to give tutored statement. It is stated that the FIR was lodged after about 17 months on 15th of July 2007 and no explanation of delay was given in the FIR. Even no effort was made to approach the criminal courts either through filing of a criminal complaint of an application under Section 156 (3) Cr.P.C. The applicant has already been enlarged on bail in this case in February 2009.
22. The next case relating to case Crime No. 287 of 2007 under Sections 147, 148, 149, 364, 341, 342, 323, 452, 504, 506, 120B and 34 IPC and 7 Criminal Law Amendment Act at P.S. Dhoomanganj. This case relates to an incident of 21st of February 2006 with similar allegations as aforesaid, but the FIR was lodged after about 17 months on 16th of July 2007. In this case also there is no explanation for the inordinate delay and no attempt was made to seek recourse before the criminal courts. The applicant has already been released on bail in February 2009.
23. Case Crime No. 288 of 2007 lodged under Sections 147, 148, 149, 364, 341, 342, 323, 504, 506, 34 IPC and 7 Criminal Law Amendment Act at P.S. Dhoomanganj also relates to an alleged incident of Ist of March 2006 with similar allegations as the aforesaid, but here also the first information report was lodged after 16 months on 17.7.2007 without any explanation of delay or taking recourse to the criminal courts. Here also the applicant has been released on bail in February 2009.
24. The next case is Crime No. 356 of 2007 lodged under Sections 447, 448, 451, 427 IPC at P.S. Dhoomanganj. Here it is alleged that the informant, a resident of Lucknow, had bought a piece of land in 1988 but when she came to Allahabad on 2.7.2007 she found that the applicant and his associates had entered into unlawful possession of the property, but the case was lodged on 16th of July 2007. In this case also, the applicant has already been enlarged on bail.
25. The next case is Crime no.368 of 2007 lodged under Section 174A IPC lodged at P.S. Dhoomanganj. In this case the Station Officer had lodged the FIR as the applicant had allegedly not surrendered, despite proclamation under Section 82 Cr.P.C. though was declared as absconder. Though the charge sheet was submitted and remand under Section 309 IPC was sought, it was challenged and the Court refused to continue the remand and the case for all purposes stood discharged.
26. The last case being case Crime No. 139 of 2007 under Sections 147, 148, 364, 394, 323, 504, 506, 34 IPC and 7 Criminal Law Amendment Act at P.S. Kareily, Allahabad. This case relates to an incident of 20.2.2006 against 15 accused persons, including two police officials, with regard to alleged abduction, but the FIR was lodged only after 17 months on 15.7.2007 without any explanation for the inordinate delay or the reason why recourse was not taken before the criminal courts. Here also the applicant has already been enlarged on bail.
27. It is alleged that all the cases mentioned from serial nos. 3 to 8 were filed in pursuance of a Government Order dated 22.6.2007 inviting people of to lodge FIRs. It is alleged that whenever the Government of BSP came to power in the State having Miss. Mayawati as Chief Minister, scores of cases have been lodged against the applicant and in one instance 87 cases were lodged on a single day and all of them were quashed by the Division Bench of this Court.
28. Apart from the allegations of the first information report, the aforesaid substantive facts have not been denied by the State in their counter affidavit and they have also not placed before this Court nature of evidence collected to credit a finding of guilt against the applicant. No doubt there are several cases against the applicant, but more than majority of them have been lodged during the three terms of the Government of the BSP. The list of cases provided by the State through their counsel included even those cases where the applicant has been discharged or acquitted long ago. Normally in the cases under the Gangsters Act only those cases can be considered which are mentioned in the charge sheet, but as already held by a Single Judge of this Court in the case of Atique Ahmed vs.State of U.P. (Criminal Misc. Bail Application NO.10781 of 2009) decided on 22.7.2011 that out of more than 200 cases, 112 cases were registered on the same day upon the dictates of the Government, but were quashed by this Court. This order of the learned Single Judge was approved by the Apex Court.
29. Parameters for consideration of bail are different in punitive and preventive legislations. As held by the Full Bench of this Court in Ashok Kumar Dixit's case (supra), the Act is punitive and not preventive. In cases of punitive legislations the Apex Court, time and again, has stated that bail is the rule and committal to jail an exception and continued incarceration without trial would impinge upon the personal liberty of the individual guaranteed under Article 21 of the Constitution. Every person detained or arrested is entitled to speedy trial.
30. In the case at hand, from the unrebutted record placed before the Court, it is evident that :
(a) In all the three tenures of this Government, large number of cases were lodged against the applicant without any tangible results;
(b) At least seven cases under the Gangsters Act were lodged and two detention orders under NSA were passed but they came to naught;
(C) More than four years have elapsed since his detention, but even charges have not been framed and there is no material to show that he is responsible for the delay though the maximum sentence is only ten years;
(d) Applicant has been enlarged on bail in all the eight cases cited in the FIR;
(e) Some of the co-accused in this case have already been admitted to bail;
(f) In the alleged cases of intimidation of witnesses, the applicant has already been bailed out and the circumstances in which the cases were lodged does not inspire confidence:
(g) On the material placed before the Court, it can reasonably be believed that the applicant cannot be convicted or that there is any chance of repeating offences under the Act.
31. Learned counsel for the Intervenor has vehemently urged that in case the applicant is enlarged on bail, he will tamper with the evidence and his life would be in danger. However, learned counsel for the applicant has countered that a third person has no right to oppose the bail and has placed reliance upon the decision of the Hon'ble Apex Court rendered in the case of Seo Nandan Paswan vs. State of Bihar (AIR 1987 SC 877). In the opinion of the Court, any member of the public acting bonafide but without any motivation or extraneous considerations can help in the dispensation of justice. He can also approach the Court against any sufferance by a set of facts where the alleged crime is an offence against the society, but the caveat is that he should act bonafidely without any extraneous motivations. Admittedly, the applicant and the Intervenor are bitter rivals in business and politics. The Intervenor had opposed grant of bail to the applicant in a case lodged by him, but his objection failed before this Court and so also before the Apex Court. Even otherwise, apart from repeating the arguments of the State, no new arguments have been raised.
32. It is made clear that none of the observations made herein above would impinge upon the right of the trial court during trial.
33. In view of the facts and circumstances of the case, without expressing any opinion about the merits of the case, let the applicant Atique Ahmad involved in Case Crime No. 419 of 2007 under Section 2/3 of the Uttar Pradesh Gangesters & Anti Social Activities (Prevention) Act, 1986 Police Station Dhoomanganj District Allahabad be released on bail on his furnishing a personal bond with two sureties each in the like amount of Rs.5,00,000/- (Five lakhs) each to the satisfaction of the court concerned with the following conditions :
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed.
(iv) The applicant shall report to the Trial Court concerned in the first week of each month to show his good conduct and behaviour.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 03.2.2012 PKG/