Allahabad High Court
Atif Ahmad vs State Of U.P. on 13 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:236186 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51869 of 2023 Applicant :- Atif Ahmad Opposite Party :- State of U.P. Counsel for Applicant :- Manjur Mohammad Ansari,Mohd Haleem Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.
1. Learned A.G.A. submits that instructions have been received and has no objection in case the bail application is heard on merits.
2. Heard learned counsel for the applicant, Sri J.K. Upadhyay, learned A.G.A. for the State and perused the record.
3. It is submitted by learned counsel for the applicant that as per the gang chart the applicant has been implicated in three cases being Case Crime Nos.175 of 2022, 176 of 2022 and 178 of 2022. In all the three cases the applicant has been enlarged on bail by this Court and the bail orders are annnexed as Annexure No.3, 4 and 5 of the affidavit. In all the cases shown in the gang chart the applicant was not named in the first information report nor he was apprehended from the spot neither any incriminating article has been recovered from the applicant. Against the bail orders in three cases, the State has not travelled to any higher forum challenging the bail orders and the aforesaid bail orders have been accepted by the State without any objection. Some of the bail orders in three cases has been granted one year back. However, in order to detain the applicant the Gangster Act has been imposed on 19.8.2023 when the applicant has already been enlarged on bail by this Court in three of the cases mentioned in the gang chart.
4. Learned counsel for the applicant submits that the applicant cannot be permitted to remain in jail only on account of the fact that there was a demonstration by the public at large in respect of some comments made against religious sentiments. There is no evidence linking the applicant with the alleged crime. In paragraph 10 of the affidavit, the case being Case Crime No. 118 of 2022 the same has not been considered by the State for imposition of Gangster Act against the applicant and as such aforesaid criminal history may not be relevant in the facts and circumstances arising out of the Gangster Act. The applicant is languishing in jail 20.10.2023.
5. It is further submitted by learned counsel for the applicant there is absolutely no evidence against the applicant that any witness has been threatened or has withdrawn in himself in any testimony before the court concerned. He submits that once there is no evidence against the applicant, the applicant is entitled to be released on bail.
6. Sri J.K. Upadhyay, learned A.G.A. appearing on behalf of the State opposed the prayer for bail and has drawn attention of this Court to Section 19(4) of U.P. Gangsters & Anti Social Activities Act, 1986 to submit that the accused can be released from custody only if the Court satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit offence while on bail.
7. On a pointed query being made to the learned A.G.A. as to what is the evidence against the applicant in the aforesaid three cases shown in the gang chart as the bail orders of the aforesaid cases indicate that the applicant was not named in the first information report nor he was arrested from the spot neither any incriminating article has been recovered from the applicant, learned A.G.A. confirms the applicant was not named in the first information report nor he was arrested from the spot neither any incriminating article has been recovered in previous cases shown in the gang chart. He agrees that in the bail orders of the aforesaid three cases, no evidence has been shown on behalf of learned A.G.A. with regard to complicity of the applicant.
8. In the present case, the first information report lodged on 19.8.2023 against the applicant under Section 2/3 of Gangster Act. The incident in respect of which the present first information report has been lodged is of 10.6.2022. The gang chart in the present case has been prepared at the first instance by In-charge Inspector, Police Station Kareli, Commissionerate Prayagraj on 18.8.2023. As per the first information report a public demonstration for a statement against the religious sentitment of one religion was being made by public at large on 10.6.2022 which turned violent. As per the first information report, the applicant involved in the violent demonstraion being extended by the public at large and other members of the gang. The first information report also state that stones were pelted on the police personnels and bombs were also hurled. In respect of the aforesaid incident, three first information report was lodged against the applicant being Case Crime No.175 of 2022, under Section 143, 144, 145, 147, 148, 149, 153A, 153B, 295A, 307, 332, 336, 353, 395, 435, 427, 504, 505(2), 506, 120B I.P.C., Section 4/5 of Explosive Substance Act, Section 7 Criminal Law Amendment Act, Section 83 of Juvenile Justice (Care and Protection of Children) Act, 2015, Section 3/4 of Prevention of Damage of Public Property Act, 1984, Section 3 of Explosive Substance Act, 1908. The applicant has already been enlarged on bail by this Court by order dated 12.10.2022 passed in Criminal Misc. Bail Application No.41674 of 2022. The paragraph 3 and 4 of the aforesaid order dated 12.10.2022 is quoted hereinbelow:-
"Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present crime. It is submitted that the applicant was neither present at the spot of occurrence nor he was arrested from there. The applicant was also not named in the FIR. It is further stated that neither any weapon of crime nor any incriminating substance/ material has been recovered from the possession of the applicant. The applicant has no criminal history. It is also submitted that there is no apprehension that after being released on bail, he may flee from the course of law or may, otherwise, misuse the liberty of bail and the applicant is in jail since 19.6.2022 and the possibility of conclusion of trial in near future is very bleak.
Learned A.G.A. has, however, opposed the prayer for grant of bail."
9. In the gang chart, Case Crime No.176 of 2022 has been shown under Section 143, 144, 145, 147, 148, 149, 153A, 153B, 295A, 307, 332, 336, 353, 435, 427, 504, 505(2), 506, 120B I.P.C., Section 4/5 of Explosive Substance Act, Section 7 Criminal Law Amendment Act, Section 83 of Juvenile Justice Act, Section 3/4 of Prevention of Damage of Public Property Act and Section 3 of Explosive Substance Act, 1908 in which the applicant has been enlarged on bail by this Court or by order dated 11.10.2022. The relevant paragraph of the bail order is quoted hereunder:-
"Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the case with some ulterior motive. It is further submitted that the applicant was not named in the F.I.R. The applicant was not present at the spot and there is no evidence to connect him with the present case. Recovery of one mobile phone has been assigned from the possession of the applicant, which belongs to him. Further recovery of one motor cycle has been shown from the possession of the applicant and there is no public witness to the alleged recovery. It is further submitted that co-accused persons namely, Aashif and Faizan have already been enlarged on bail by co-ordinate Benches of this Court vide orders dated 12.09.2022 in Criminal Misc. Bail Application Nos. 34747 of 2022 and 40228 of 2022, respectively, and the case of the applicant stands on better footing than the case of the co-accused, hence he may also be enlarged on bail. It has also been pointed out that the accused is not having any criminal history and he is in jail since 19.06.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant but he has not disputed the claim of parity."
10. In the gang chart, Case Crime No.178 of 2022 has been shown under Section 427, 147, 335, 120B I.P.C. and Section 3/4 of Prevention of Damage of Public Property Act, 1984 in which the applicant has been enlarged on bail by the court below by order dated 18.11.2023. The relevant extract of the bail order is quoted hereinbelow:
"उभय पक्ष के तर्कों के आलोक में उपलब्ध समस्त अभियोजन प्रपत्रों का अवलोकन किया। प्रकरण की प्रथम सूचना रिपोर्ट अज्ञात में दर्ज है। प्रार्थी प्रथम सूचना रिपोर्ट में नामित नहीं है। आवेदक / अभियुक्त का नाम दौरान विवेचना प्रकाश में आया है। प्रकरण में आवेदक / अभियुक्त की कोई विशिष्ट भूमिका दर्शित नहीं की गयी है। आवेदक / अभियुक्त दिनांक 20.10.2023 से जेल में निरूद्ध है। सह अभियुक्त जावेद मोहम्मद उर्फ जावेद पम्प उर्फ जावेद अहमद की जमानत विद्वान पूर्वाधिकारी द्वारा जमानत प्रार्थना पत्र संख्या 2879 / 2023 में पारित आदेश दिनांकित 18.05.2023 द्वारा स्वीकार की जा चुकी हैं। सम्बन्धित थाने द्वारा प्रेषित आख्या में आवेदक / अभियुक्त का प्रस्तुत प्रकरण के अतिरिक्त अन्य 4 मामलों का आपराधिक इतिहास होना कहा गया है। फिर भी माननीय उच्च न्यायालय, इलाहाबाद द्वारा Athesham Ahmad Zaidi vs State of U.P. 2020 (1) JIC 542 (All) Allahabad High Court में यह प्रतिपादित किया है कि Prosecution must prima facie place some evidence regarding the involvement of accused. Bail cannot be refused merely on the basis of criminal history of accused. उपर्युक्त निणयज़ विधि में निर्गत दिशा निर्देश मामले के सम्पूर्ण तथ्यों को दृष्टिगत रखते हुए प्रकरण के गुण-दोष के आधार पर मत व्यक्त किये बिना अभियुक्त को जमानत पर रिहा किये जाने का पर्याप्त आधार है। तद्नुसार अभियुक्त का जमानत प्रार्थना पत्र निम्न ~ के अधीन स्वीकार किये जाने योग्य है।"
11. The Gangster Act is a strict law which curtails the liberty of an individual and, therefore, it is for the prosecution to establish by cogent material evidence as to the complicity of the applicant in the base cases, which are shown in the gang chart.
12. In the present case, learned A.G.A. has not been able to show any material evidence with regard to complicity of the applicant in the three cases shown in the gang chart. Even, the bail orders of the cases shown in the gang chart did not indicate any material evidence with regard to complicity of the applicant in the aforesaid cases. The applicant was already enlarged on bail by this Court by order dated 12.10.2022 in Case Crime No.175 of 2022 and thereafter, on 11.10.2022 the applicant was enlarged on bail in Case Crime No.176 of 2022. However, after the aforesaid bail being granted, the present first information report has been lodged on 19.8.2023 under the Gangster Act. It has not been shown as to why the Gangster Act was not imposed at the initial stage when the first case being Case Crime No.175 of 2023 was lodged against the applicant. Such non-explanation of these circumstances is very relevant. More particularly, when no material evidence has been shown with regard to the fact that the applicant was actually disturbing public peace and tranquility.
13. It has not been shown by any material evidence or particulars that any of the witnesses in respect of the cases shown in the Gang Chart have turned hostile or have refused to give testimony. Since there is no material partculars on the side of the prosecution with regard to complicity of the applicant in the cases shown in the gang chart. Mere pendency of the criminal cases against the applicant ipso facto will not amount to imposition of Gangster Act. The authorities concerned are required to apply their mind to the material found during investigation and thereafter, proceed with the consideration of imposition of the Ganster Act.
14. It is further required to be noted that once the bail was granted in three cases by this Court which has been shown in the gang chart. The State has not challenged the bail orders before any higher forum and such acceptance of the bail orders by the State of the cases shown in the gang chart is reflective of the fact that the State has not objected to the bail orders passed by this Court in Case Crime Nos.175 of 2022, 176 of 2022 and 178 of 2022. Once the State itself has not challenged the bail orders and in the bail orders also the State has not taken stand that the applicant conduct involves imposition of Gangster Act, the applicant is entitled to be enlarged on bail.
15. There are three cases shown in the gang chart against the applicant. However, other criminal history (apart from the gang chart) has been pointed out by learned A.G.A. The other criminal cases of the applicant has not been shown in the gang chart. No reasons have been shown by learned A.G.A. for non-inclusion of other criminal history in the gang chart. A separate list of criminal history, in Form No.4, is not attached with the gang chart detailing all the criminal activities of the gang and mentioning all the criminal cases nor abovementioned Form No.4 has been produced by learned A.G.A. before this Court. No material has been placed by learned A.G.A. to demonstrate that the name of the Applicant is entered into gang register kept in the police station concerned. The proceedings under the Gangster Act is required to be initiated by preparation of gang chart mentioning the criminal activities. It is not shown by learned A.G.A. that the details of other criminal cases against the applicant were before the authorities concerned at the time of approval of gang chart. To initiate under the Gangster Act preparation of gang chart is a condition precedent under Rule 5(1) of the Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Rules, 2021. The gang chart is required to mention details of the criminal activity of the accused. The Commissioner of Police/District Magistrate is to record satisfaction on the basis of the gang chart that the foundation of action under the Gangster Act exists. When the other criminal cases of the Applicant have not been disclosed in the gang chart or Form No.4, then it can be gainfully said that initiation of proceedings under the Act is not on the basis of other criminal history of the applicant, as such other criminal history of the applicant cannot be an impediment to deny bail to the applicant, more particularly when the applicant has been enlarged on bail in previous criminal cases.
16. The material particulars of the evidence and other material available against the applicant not been shown by State. The material available before the District Magistrate/Commissioner for proceeding against the applicant under the Gangster Act has not been produced before this Court. It is not shown by the opposite party by way of specific instances and particulars as to when on account of the applicant persons have not come forward to lodge a case against the applicant. No particulars or instances have been shown where on account of the applicant the prosecution witnesses have become hostile or have refuse to give evidence against the applicant. General allegations without material particulars and evidence against the applicant could not by itself a ground to deny bail to the applicant in view of Article 21 of the Constitution of India.
17. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
18. Let the applicant Atif Ahmad involved in Case Crime No.200 of 2023, under Sections 2/3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station Kareli, District Prayagraj be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to 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, unless personal presence is exempted and/ or the applicant shall make himself available for interrogation by a police officer as and when required.
iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
v. The applicant shall not directly or indirectly make any 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 or to any police officer or tamper with the evidence.
vi. The applicant shall not leave India without the previous permission of the Court.
vii. In the event, the applicant changes his residential address, the applicant shall inform the court concerned about new residential address in writing.
19. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 13.12.2023 Bhaskar