# Angad Rai @ Jhullan Rai v. State of U.P

- **Citation:** (2023) 11 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-03
- **Case number:** Criminal Misc. First Bail Application No. 42050 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/angad-rai-jhullan-rai-v-state-of-u-p-49437
- **Pages:** 11

## Headnote

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2(b), 2(c), 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Bail -
Public Order vs. Law and Order - Gang Chart -
Non-Application of Mind

The applicant, Angad Rai @ Jhullan Rai, sought
bail in Case Crime No. 314 of 2023 under
Section 3(1) of the U.P. Gangsters Act, alleging
misuse of the Act to frustrate his prior bail in a
case under Section 386 IPC (Case Crime No.
111 of 2023). The gang chart alleged the
applicant, a member of Mukhtar Ansari's
gang, threatened witnesses, disturbing public
order. The applicant argued the allegations
were a law and order issue, not public order,
and the gang chart omitted his prior bail
order. The St. opposed, citing the Act's strict
bail provisions under Section 19(4). Held: (1)
The bail application was allowed. (2) The
gang chart's failure to mention the applicant's
prior bail order dated 26.05.2023 indicated
non-application of mind, and the allegations
of witness threats constituted a law and order
issue, not public order, per Banka Sneha Sheela
Vs St. of Telangana. (3) The twin conditions
under Section 19(4)(b) were satisfied: no prima
facie evidence supported guilt under the
Gangsters Act, and no material suggested the
applicant would commit similar offences if
released, per Mohd Muslim @ Hussain Vs St.
(NCT of Delhi) and Ranjitsingh Brahmajeetsing
Sharma Vs St. of Maharashtra. (4) The St.'s
failure to challenge the prior bail order or seek
its cancellation weakened its case. (5) Bail was
granted
with
conditions
to
ensure
court
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
27
attendance and prevent evidence tampering or
witness intimidation.

Case Law Cited:

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of Civil Judge (J.D.), Kaushambi;
that all the offences alleged against the applicant
are triable by the Magistrate and that the coaccused Sarvnam Tiwari has already been
released on bail, I am of the view that the applicant
is also entitled to be released on bail pending
conclusion of the trial.

23. The bail application is accordingly
allowed.

24. Let the applicant - Rakesh Kumar be
released on bail in Case Crime No. 721 of 2018,
under Sections 419, 420, 466, 468, 471 I.P.C., P.S.
Saini, District Kaushambi 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.

(iii) The applicant will appear before
the trial court on the date fixed, unless personal
presence is exempted.

(iv) 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.

25. In case of breach of any of the above
condition, the prosecution shall be at liberty to
move an application bail before this Court seeking
cancellation of bail.
----------
(2023) 11 ILRA 26
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.
Criminal Misc. First Bail Application No. 42050 of
2023
Angad Rai @ Jhullan Rai ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Shashi Bhushan Kunwar, Sri Pradeep
Kumar Rai, Sri Kamal Kishore (Senior
Advocate)

Counsel for the Opposite Party:
G.A.

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2(b), 2(c), 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Bail -
Public Order vs. Law and Order - Gang Chart -
Non-Application of Mind

The applicant, Angad Rai @ Jhullan Rai, sought
bail in Case Crime No. 314 of 2023 under
Section 3(1) of the U.P. Gangsters Act, alleging
misuse of the Act to frustrate his prior bail in a
case under Section 386 IPC (Case Crime No.
111 of 2023). The gang chart alleged the
applicant, a member of Mukhtar Ansari's
gang, threatened witnesses, disturbing public
order. The applicant argued the allegations
were a law and order issue, not public order,
and the gang chart omitted his prior bail
order. The St. opposed, citing the Act's strict
bail provisions under Section 19(4). Held: (1)
The bail application was allowed. (2) The
gang chart's failure to mention the applicant's
prior bail order dated 26.05.2023 indicated
non-application of mind, and the allegations
of witness threats constituted a law and order
issue, not public order, per Banka Sneha Sheela
Vs St. of Telangana. (3) The twin conditions
under Section 19(4)(b) were satisfied: no prima
facie evidence supported guilt under the
Gangsters Act, and no material suggested the
applicant would commit similar offences if
released, per Mohd Muslim @ Hussain Vs St.
(NCT of Delhi) and Ranjitsingh Brahmajeetsing
Sharma Vs St. of Maharashtra. (4) The St.'s
failure to challenge the prior bail order or seek
its cancellation weakened its case. (5) Bail was
granted
with
conditions
to
ensure
court
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
27
attendance and prevent evidence tampering or
witness intimidation.

Case Law Cited:

1. Banka Sneha Sheela Vs St. of Telangana &
ors., (2021) 9 SCC 415

2. Ram Manohar Lohia Vs St. of Bihar, (1966) 1
SCR 709: AIR 1966 SC 740

3. Mohd Muslim @ Hussain Vs St. (NCT of
Delhi), 2023 LiveLaw (SC) 260

4. Ranjitsingh Brahmajeetsing Sharma Vs St. of
Mah., (2005) 5 SCC 294

5. U.O.I. Vs Ratan Malik, (2009) 2 SCC 624

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Kamal Kishore, Senior
Advocate assisted by Sri Shashi Bhushan
Kumar and Pradeep Kumar Rai, the
counsel for the applicant and Sri P. C.
Srivastava, Additional Advocate General
assisted by Sri Arvind Kumar, Additional
Government Advocate.

2. The present bail application has
been filed seeking enlargement of bail of
the applicant in FIR No.0314 of 2023
instituted against the applicant under
section 3(1) of the U.P. Gangsters and
Antisocial Activities (Prevention) Act, 1986
Police Station Kotwali, District Ghazipur
hereinafter referred to as 'Gangster Act'.

3. The averments, in brief, are that the
applicant was being tried for an offence
under section 386 IPC vide case crime
no.111 of 2023, P.S. Kotwali, District
Ghazipur. The applicant applied for bail
in the said case and was enlarged on
bail
vide
order
dated
26.05.2023,
contained
in
Annexure
no.3.
Subsequently, according to the counsel
for the applicant, with a view to frustrate
the enlargement on bail, the offence under
section 3(1) of the Gangster Act was
imposed against the applicant vide case
crime no.314 of 2023.

4. The contention of the counsel for
the applicant is that in the Gang Chart
prepared and filed on record as Annexure
no.2, it was stated that the applicant being
the gang member of the Gang Leader
Mukhtar Ansari was involved in criminal
offences, which has led to fear in general
public and because of the applicant causing
such criminal acts, the 'public order' was
adversely affected and there was a fear
amongst the people. It was also recorded
that on account of the said fear, no one was
ready and willing to give evidence. In the
gang
chart
which
was
prepared
in
pursuance to the rules framed under the
Act, it was stated that on 03.03.2023, an
information was received that in a case
being tried against the applicant as Case
No.2 of 2020 arising out of crime no.1202
of 2009, date 14.03.2023 was fixed for
evidence and on account of trying to
influence the witnesses in the said case, on
28.02.2023 at about 3:30 pm, the elder
brother of the applicant along with certain
other persons threatened the witnesses not
to give any evidence and a demand of
Rs.5,00,000/- (Five Lacs) was also made
from the said witness, failing which it was
threatened that the children of the
witness shall be eliminated. Based upon
the said incident, a view was formed
that
the
entire
gang
indulged
in
threatening the people. Based upon the
said view, the Gang Chart was prepared
on 26.06.2023 in terms of the Rule 18
of the Rules framed under the Gangsters
Act and the FIR in question was
registered against the applicant and two
other persons for trying the applicant
28 INDIAN LAW REPORTS ALLAHABAD SERIES
for an offence under section 3(1) of the
U.P. Gangster Act.

5. The contention of counsel for the
applicant is that with regard to alleged
threat issued to the alleged witnesses for
not deposing in the case against the
applicant, the applicant had applied for bail
and was granted bail by the Trial Court
vide order dated 26.05.2023 which bail
order has not been challenged by the State
and no application has been moved for
cancellation of the bail. If the material as
indicated in the Gang Chart was present, it
was incumbent upon the State to have taken
the steps for cancellation of the bail, which
were not taken for the reasons best known
to the State. He argues that despite not
filing any bail cancellation application, the
State chose to avoid release of the applicant
in the said case, which is primarily a
misuse of the power conferred upon the
State. He argues that subsequent to the
lodging of the FIR in question, the said
witness to whom allegedly threats were
issued has also deposed and the said case
has reached the stage of Section 313
Cr.P.C. In the light of the said, he
argues that the applicant should be
enlarged on bail.

6. Learned Additional Advocate
General, on the other hand, has strongly
opposed the bail application by arguing
that in terms of the provisions contained
in the U.P. Gangster Act, the State is
duly empowered to take steps for
punishing a Gangster in terms of
Section 3 of the Gangster Act. He
argues that the word 'Gangster' has
been defined under section 2(c) of the
said Act, which is as under :

Section
2(c)
:
"gangster"
means a member or leader, or organizer
of a gang and includes any person who
abets or assists in the activities of a
gang enumerated in clause (b), whether
before or after the commission of such
activities or harbours any person who
has indulged in such activities."

7. He further argues that the word
'gang' has further been defined under
section 2(b) of the said Act which is as
under :

Section 2(b) "Gang" means a
group of persons, who acting either
singly or collectively, by violence, or
threat
or
show
of
violence,
or
intimidation, or coercion or otherwise
with the object of disturbing public
order or of gaining any undue temporal,
pecuniary, material or other advantage
for himself or any other person, indulge
in anti-social activities, namely-

(i) offences punishable under
Chapter XVI or Chapter XVII or
Chapter XXII of the Indian Penal Code
(Act No. 45 of 1860), or

(ii) distilling or manufacturing
or storing or transporting or importing
or exporting or selling or distributing any
liquor, or intoxicating or dangerous
drugs, or other intoxicants or narcotics
or
cultivating
any
plant,
in
contravention of any of the provisions
of the U.P. Excise Act, 1910 (U.P. Act
No. 4 of 1910), or the Narcotic Drugs
and Psychotropic Substances Act, 1985
(Act No. 61 of 1985), or any other law
for the time being in force, or

(iii)
occupying
or
taking
possession
of
immovable
property
otherwise than in accordance with law,
or setting-up false claims for title or
possession
of
immovable
property
whether in himself or any other person,
or
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
29

(iv) preventing or attempting to
prevent any public servant or any witness
from discharging his lawful duties, or

(v) offences punishable under the
Suppression of Immoral Traffic in Women
and Girls Act, 1956 (Act No. 104 of 1956),
or

(vi) offences punishable under
Section 3 of the Public Gambling Act, 1867
(Act No. 3 of 1867), or

(vii) preventing any person from
offering bids in auction lawfully conducted,
or tender, lawfully invited, by or on behalf
of any Government department, local body
or public or private undertaking, for any
lease or rights or supply of goods or work
to be done, or

(viii) preventing or disturbing the
smooth running by any person of his lawful
business, profession, trade or employment
or any other lawful activity connected
therewith, or

(ix) offences punishable under
Section 171-E of the Indian Penal Code
(Act No. 45 of 1860), or in preventing or
obstructing any public election being
lawfully held, by physically preventing the
voter from exercising his electoral rights,
or

(x) inciting others to resort to
violence to disturb communal harmony, or

(xi) creating panic, alarm or
terror in public, or

(xii)
terrorising
or
assaulting
employees or owners or occupiers of public or
private undertakings or factories and causing
mischief in respect of their properties, or

(xiii) inducing or attempting to
induce any person to go to foreign countries on
false representation that any employment, trade
or profession shall be provided to him in such
foreign country, or

(xiv) kidnapping or abducting any
person with intent to extort ransom, or

(xv)
diverting
or
otherwise
preventing any aircraft or public transport
vehicle from following its scheduled
course;

(xvi) offences punishable under
the Regulation of Money Lending Act,
1976;

(xvii)
illegally
transporting
and/or smuggling of cattle and indulging in
acts in contravention of the provisions in
the Prevention of Cow Slaughter Act, 1955
and the Prevention of Cruelty to Animals
Act, 1960;

(xviii)
human
trafficking
for
purposes
of
commercial
exploitation,
bonded
labour,
child
labour,
sexual
exploitation,
organ
removing
and
trafficking, beggary and the like activities.

(xix) offences punishable under
the Unlawful Activities (Prevention) Act,
1966:

(xx) printing, transporting and
circulating of fake Indian currency notes;

(xxi) involving in production, sale
and distribution of spurious drugs;

(xxii) involving in manufacture,
sale and transportation of arms and
ammunition in contravention of Sections 5,
7 and 12 of the Arms Act, 1959;

(xxiii) felling or killing for
economic gains, smuggling of products in
contravention of the Indian Forest Act,
1927 and Wildlife Protection Act, 1972;

(xxiv) offences punishable under
the Entertainment and Betting Tax Act,
1979;

(xvv) indulging in crimes that
impact security of State, public order and
even tempo of life."

8. He, thus, argues that in terms of
definition of 'gang' as contained under
section 2(b)(iv), the activities as done by
the applicant would fall within the
definition of 'gang' and thus the applicant
30 INDIAN LAW REPORTS ALLAHABAD SERIES
was rightly being tried under the offence in
question. He further argues and draws my
attention to the mandate of section 19(4) of
the U.P. Gangsters Act to argue that in
addition to the general provisions of grant
of bail as specified under the Cr.P.C. the
mandate cast by Section 19(4) are to be
followed and the power of grant of bail
stands circumcised to the extent as
indicated in sub-section (4) of section 19 of
the
Act.
Section
19(4)
is
quoted
hereinbelow :

19.
Modified
application
of
certain provisions of the Code. -

(1) .....

(2). ......

(3) ........

(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 guilty of such
offence and that he is not likely to commit
any offence while on bail."

9. In view of the submissions of the
parties as recorded hereinabove, this Court
is to decide as to whether on the basis of
the materials produced, the applicant is
entitled to be enlarged on bail or not?

10. To appreciate the arguments
raised at the bar, it is essential to note that
Section 3 of the 'Act' provides for
penalty to a person who commits an
offence as a gangster and the punishment
prescribed is for a period of two years
which can be extended up to ten years
and also with a fine which shall not be
less then rupees five thousand. As the
'Gangster Act' is a special Act which
creates rigorous conditions, particularly
in terms of grant of bail as specified in
section 19(4) of the Act, is to be
interpreted more strictly as it is fairly
well settled that stricter the provisions
contained in a penal statute, the stricter
has to be interpretation.

11. Section 2(b) of the Act, which
defines 'gang' upon a plain reading
means that the
 'gang' has to be a group of person who
act either singly or collectively and use
violence, threat or show of violence, or
intimidation or coercion or otherwise,

with

the object of disturbing public
order

or
of
gaining
any
undue
temporal, pecuniary, material or other
advantage for himself or any other
person.

12. Thus, to include a person within
the definition of 'gang', it is incumbent
that
there
should
be
material
to
demonstrate that a group of persons are
acting either singly or collectively; they
are using violence or threat. The most
essential aspect is that the object should
be to disturb the public order or for
gaining any undue temporal pecuniary
material or advantage for himself.

13. In the scheme of the Act adequate
safeguards are inbuilt and provide for
certain tests to be cleared before launching
prosecution under the Act. One of the
safeguards provided is in the relevant rules
providing for the manner of preparation of
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
31
gang-chart, which,in the present case has
been prepared and is on record as Annexure
no.2.

14. To appreciate the scheme of
Rules, it is essential to refer to the Rules 5,
6, 7, 8, 9, 10, 11 and 12 provide for the
steps which are necessarily to be taken
before initiating prosecution under the Act
and have to include an abstract in terms of
Rule 13 which prescribes as under :

13.
Specific
statement
of
offences committed for economic, material
and temporal or similar other benefits -
While writing the abstract below the gangchart and particulars separately with the
gang-chart,
the
particulars
of
those
offences shall be specifically mentioned:

(i) which have been committed
for pecuniary, materialistic and temporal
or similar benefits; or

(ii) which disturb the public
order, or

(iii). Which are a ground for
detention under the National Security Act,
1980

Rule 15 specifically prohibits the
arbitrary
selection
against
any
gang
member, the same is reproduced as under :

15.
Arbitrary
selection
of
gang/member of gang prohibited.-

(1) There should not be a
situation of arbitrary selection against any
gang under this Act.

(2) If action is not to be taken
against any member of a gang who has
committed a criminal act in association
with the said gang, then in such a case
clear and reasonable grounds for not
mentioning his name in the gang and gangchart shall be recorded with reasons and

(3).The final decision as to
whether to include or not to include the
name of member of a gang in the gang and
gang-chart shall be at the discretion of the
Commissioner
of
Police/District
Magistrate.

15. It is essential to also note the
mandate of Rule 17 which prescribes that
the competent authority is bound to
exercise its own independent mind while
forwarding the gang chart. The format of
gang chart is prescribed in Rule 18.

16. In the present case, as per the
gang chart, which led to the lodging of the
first information report, it has been
mentioned that because of the alleged acts
committed by the applicant, there was a
disturbance of public order (traceable to
requirement prescribed under Rule 13(ii)).
The chart was prepared on 26.06.2023,
however, in the entire chart, there is no
mention of the bail order passed in
favour of the applicant on 26.05.2023,
thus, the gang chart prepared prima
facie suffers from non-application of
mind
as
the
same
is
without
considering the material documents
which was the bail order dated
26.05.2023.

17. In any event, the forming of
the view that on account of alleged
threat issued by the applicant to the
witness,
there
was
a
fear
and
disturbance of 'public order', primafacie is not justified, if the court is to
interpret the meaning of the phrase
'public order' as used under section
2(b)
of
the
U.P.
Gangster
Act.
Although, the word 'public order' has
not been defined under the Act or the
Rules framed thereunder, the use of
word 'public order' has to be interpreted in
the light of the mandate cast by Article 21
32 INDIAN LAW REPORTS ALLAHABAD SERIES
and Article 19 (2) of the Constitution of
India.

18. The phrase 'public order' came up
for consideration before the Supreme Court
in the case of Banka Sneha Sheela vs.
State of Telangana and others; (2021) 9
SCC 415 wherein the Supreme Court had
the occasion to consider the distinction
between 'law and order' and 'public order'
and 'security of State'. Although the
Supreme Court had rendered the judgment
in the context of a law prescribed for
preventive
detention,the
basis
would
equally apply to penal statutes like the
cases under the Gangsters Act. The
Supreme Court dealt with the difference in
between the three, i.e. 'law and order',
'public order' and 'security of State'. The
relevant paragraph of the judgment are
quoted as under :

"13. As is well-known, the
expressions "law and order", "public
order", and "security of State" are
different from one another. In Ram
Manohar Lohia v. State of Bihar [Ram
Manohar Lohia v. State of Bihar, (1966) 1
SCR 709 : AIR 1966 SC 740 : 1966 Cri LJ
608] the question before this Court arose
under a preventive detention order made
under Rule 30 of the Defence of India
Rules, which permits apprehension and
detention of a person likely to act in a
manner prejudicial to the maintenance of
public order. This Court set out the
distinction between a mere law and order
disturbance and a public order disturbance
as follows : (SCR pp. 738-39 & 745-46 :
AIR pp. 755 & 758-59, paras 42 & 51-52)

"42. The Defence of India Act
and the Rules speak of the conditions under
which preventive detention under the Act
can be ordered. In its long title and the
preamble the Defence of India Act speaks
of the necessity to provide for special
measures to ensure public safety and
interest, the defence of India and civil
defence. The expression "public safety"
and interest between them indicate the
range of action for maintaining security,
peace and tranquillity of India whereas the
expressions "defence of India" and "civil
defence" connote defence of India and its
people against aggression from outside and
action of persons within the country. These
generic terms were used because the Act
seeks to provide for a congeries of action of
which preventive detention is just a small
part. In conferring power to make rules,
Section 3 of the Defence of India Act
enlarges upon the terms of the preamble by
specification of details. It speaks of defence
of India and civil defence and public safety
without change but it expands the idea of
public interest into maintenance of public
order, the efficient conduct of military
operations and maintaining of supplies and
services essential to the life of the
community. Then it mentions by way of
illustration in clause (15) of the same
section the power of apprehension and
detention in custody of any person whom
the authority empowered by the rules to
apprehend
or
detain
(the
authority
empowered to detain not being lower in
rank than that of a District Magistrate),
suspects, on grounds appearing to that
authority to be reasonable-

(a) of being of hostile origin; or

(b) of having acted, acting or
being about to act or being likely to act in a
manner prejudicial to-

(i) the defence of India and civil
defence;

(ii) the security of the State;

(iii) the public safety or interest;

(iv) the maintenance of public
order;
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
33

(v) India's relations with foreign
States;

(vi) the maintenance of peaceful
conditions in any part or area of India; or

(vii) the efficient conduct of
military operations.

It will thus appear that security of
the State, public safety or interest,
maintenance of public order and the
maintenance of peaceful conditions in any
part or area of India may be viewed
separately even though strictly one clause
may have an effect or bearing on another.
Then follows Rule 30, which repeats the
above conditions and permits detention of
any person with a view to preventing him
from acting in any of the above ways. The
argument of Dr Lohia that the conditions
are to be cumulatively applied is clearly
untenable. It is not necessary to analyse
Rule 30 which we quoted earlier and which
follows the scheme of Section 3(15). The
question is whether by taking power to
prevent Dr Lohia from acting to the
prejudice of "law and order" as against
"public order" the District Magistrate
went outside his powers.
***

51. We have here a case of
detention under Rule 30 of the Defence of
India Rules which permits apprehension
and detention of a person likely to act in a
manner prejudicial to the maintenance of
public order. It follows that if such a person
is not detained public disorder is the
apprehended result. Disorder is no doubt
prevented by the maintenance of law and
order also but disorder is a broad spectrum
which
includes
at
one
end
small
disturbances and at the other the most
serious and cataclysmic happenings. Does
the expression "public order" take in
every kind of disorders or only some of
them? The answer to this serves to
distinguish "public order" from "law and
order" because the latter undoubtedly
takes in all of them. Public order if
disturbed, must lead to public disorder.
Every breach of the peace does not lead to
public disorder. When two drunkards
quarrel and fight there is disorder but not
public disorder. They can be dealt with
under the powers to maintain law and
order but cannot be detained on the
ground that they were disturbing public
order. Suppose that the two fighters were
of rival communities and one of them tried
to raise communal passions. The problem
is still one of law and order but it raises
the apprehension of public disorder. Other
examples
can
be
imagined.
The
contravention of law always affects order
but before if can be said to affect public
order, it must affect the community or the
public at large. A mere disturbance of law
and order leading to disorder is thus not
necessarily sufficient for action under the
Defence of India Act but disturbances
which subvert the public order are. A
District Magistrate is entitled to take action
under Rule 30(1)(b) to prevent subversion
of public order but not in aid of
maintenance of law and order under
ordinary circumstances.

52. It will thus appear that just
as "public order" in the rulings of this
Court
(earlier
cited)
was
said
to
comprehend disorders of less gravity than
those affecting "security of State", "law
and order" also comprehends disorders of
less gravity than those affecting "public
order". One has to imagine three
concentric
circles.
Law
and
order
represents the largest circle within which
is the next circle representing public order
and the smallest circle represents security
of State. It is then easy to see that an act
may affect law and order but not public
order just as an act may affect public
order but not security of the State. By
34 INDIAN LAW REPORTS ALLAHABAD SERIES
using the expression "maintenance of law
and order" the District Magistrate was
widening his own field of action and was
adding a clause to the Defence of India
Rules.

14. There can be no doubt that
for "public order" to be disturbed, there
must in turn be public disorder. Mere
contravention of law such as indulging in
cheating or criminal breach of trust
certainly affects "law and order" but
before it can be said to affect "public
order", it must affect the community or the
public at large.

15. There can be no doubt that
what is alleged in the five FIRs pertain to
the realm of "law and order" in that
various acts of cheating are ascribed to the
detenu which are punishable under the
three sections of the Penal Code set out in
the five FIRs. A close reading of the
detention order would make it clear that the
reason for the said order is not any
apprehension of widespread public harm,
danger or alarm but is only because the
detenu
was
successful
in
obtaining
anticipatory bail/bail from the courts in
each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are
well-known remedies in the ordinary law to
take care of the situation. The State can
always appeal against the bail order
granted and/or apply for cancellation of
bail. The mere successful obtaining of
anticipatory bail/bail orders being the real
ground for detaining the detenu, there can
be no doubt that the harm, danger or alarm
or feeling of insecurity among the general
public spoken of in Section 2(a) of the
Telangana
Prevention
of
Dangerous
Activities Act is make-believe and totally
absent in the facts of the present case.

19. To tear these observations out
of context would be fraught with great
danger when it comes to the liberty of a
citizen under Article 21 of the Constitution
of India. The reason for not adopting a
narrow meaning of "public order" in that
case was because of the expression "in the
interests of" which occurs in Articles 19(2)
to 19(4) and which is pressed into service
only when a law is challenged as being
unconstitutional for being violative of
Article 19 of the Constitution. When a
person is preventively detained, it is
Articles 21 and 22 that are attracted and
not Article 19. Further, preventive detention
must fall within the four corners of Article
21 read with Article 22 and the statute in
question. To therefore argue that a liberal
meaning must be given to the expression
"public order" in the context of a
preventive detention statute is wholly
inapposite and incorrect. On the contrary,
considering that preventive detention is a
necessary evil only to prevent public
disorder, the Court must ensure that the
facts brought before it directly and
inevitably lead to a harm, danger or alarm
or feeling of insecurity among the general
public or any section thereof at large."

19. In the context of the said
judgment, if the averments made in the
gang chart as well as in the first
information report are treated to be gospel
truth for the sake of arguments, the same
would at best fall within the definition of
'law and order problem' and not 'public
disorder', thus, prima-facie, the allegations,
the materials contained in the gang chart
and the information recorded in the first
information report, prima facie cannot
include the offence to fall under section
2(b) of the Act.

20. To deal with the second argument
of the learned AGA with regard to
circumcision of the power of grant of bail,
by virtue of Section 19(4) of the Act, the
11 All. Angad Rai @ Jhullan Rai Vs. State of U.P.
35
same places restriction on this court to
grant bail unless the public prosecutor has
been heard, which stands satisfied in the
present case. The other two twin conditions
prescribed in section 19(4) (b) of the Act
has to be satisfied that there are 'reasonable
ground' for believing that the applicant is
not guilty of such offence and that he is not
likely to commit any offence while on bail.
A similar phrase containing a similar
restriction with regard to manner in which,
the reasonable belief has to be formed by
the Court used similarly in the context of
NDPS Act, came up for interpretation
before the Hon'ble Apex Court in the case
of Mohd Muslim @ Hussain v. State (NCT
of Delhi); 2023 LiveLaw (SC) 260 wherein
the Supreme Court while interpreting the
said phrase recorded as under :

"18. The conditions which courts
have to be cognizant of are that there are
reasonable grounds for believing that the
accused is "not guilty of such offence" and
that he is not likely to commit any offence
while on bail. What is meant by "not
guilty" when all the evidence is not before
the court? It can only be a prima facie
determination. That places the court's
discretion within a very narrow margin.
Given the mandate of the general law on
bails (Sections 436, 437 and 439, CrPC)
which classify offences based on their
gravity, and instruct that certain serious
crimes have to be dealt with differently
while considering bail applications, the
additional condition that the court should
be satisfied that the accused (who is in law
presumed to be innocent) is not guilty, has
to be interpreted reasonably. Further the
classification of offences under Special
Acts (NDPS Act, etc.), which apply over
and above the ordinary bail conditions
required to be assessed by courts, require
that the court records its satisfaction that
the accused might not be guilty of the
offence and that upon release, they are not
likely to commit any offence. These two
conditions have the effect of overshadowing
other conditions. In cases where bail is
sought, the court assesses the material on
record such as the nature of the offence,
likelihood of the accused co-operating with
the investigation, not fleeing from justice:
even in serious offences like murder,
kidnapping, rape, etc. On the other hand,
the court in these cases under such special
Acts, have to address itself principally on
two facts: likely guilt of the accused and
the likelihood of them not committing any
offence upon release. This court has
generally upheld such conditions on the
ground that liberty of such citizens have to
- in cases when accused of offences
enacted under special laws - be balanced
against the public interest.

19.
A
plain
and
literal
interpretation of the conditions under
Section 37 (i.e., that Court should be
satisfied that the accused is not guilty and
would not commit any offence) would
effectively exclude grant of bail altogether,
resulting
in
punitive
detention
and
unsanctioned preventive detention as well.
Therefore, the only manner in which such
special conditions as enacted under
Section 37 can be considered within
constitutional parameters is where the
court is reasonably satisfied on a prima
facie look at the material on record
(whenever the bail application is made)
that the accused is not guilty. Any other
interpretation, would result in complete
denial of the bail to a person accused of
offences such as those enacted under
Section 37 of the NDPS Act.

20. The standard to be considered
therefore, is one, where the court would
look at the material in a broad manner, and
36 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonably see whether the accused's guilt
may be proved. The judgments of this court
have, therefore, emphasized that the
satisfaction which courts are expected to
record, i.e., that the accused may not be
guilty, is only prima facie, based on a
reasonable reading, which does not call for
meticulous examination of the materials
collected during investigation (as held in
Union of India vs. Ratan Malik). Grant of
bail on ground of undue delay in trial,
cannot be said to be fettered by Section 37
of the Act, given the imperative of Section
436A which is applicable to offences under
the NDPS Act too (ref. Satender Kumar
Antil supra). Having 19 (2009) 2 SCC 624
regard to these factors the court is of the
opinion that in the facts of this case, the
appellant deserves to be enlarged on bail. "

21. In view of the law as explained
and a provision which is similar to the one
used in section 19(4)(b), the interpretation
given by the Supreme Court in the case of
Mohd Muslim @ Hussain (supra) would
squarely apply to the cases emanating from
the U.P. Gangsters Act. Thus, on the basis
of the said interpretation, this court can
form a view that the applicant may not be
prosecuted for the offence on the basis of
the material particularly when the material
to form a view that there was a disturbance
of 'public order' is missing. In view
thereof, the first of the twin conditions
stands satisfied.

22. As regards the second of the twin
conditions, there is no material on record to
suggest that the applicant is wanted in any
case of a similar nature where he has
threatened the accused, thus, in view of the
law laid down in the case of Ranjitsingh
Brahmajeetsing Sharma vs. State of
Maharashtra, (2005) 5 SCC 294, this court
can form a view that the accused, if
enlarged on bail, would not indulge in a
similar offence.

23. On the basis of the interpretation
and the findings recorded above, the
applicant is entitled for the bail. Thus, the
bail application is allowed.

24. Let the applicant Angad Rai
Alias Jhullan Rai be released on bail in
aforesaid first information report number
subject to his furnishing a personal bond
and two reliable sureties each of the like
amount to the satisfaction of the court
concerned with the following conditions:

(a) The applicant shall execute a
bond to undertake to attend the hearings;

(b) The applicant shall not
commit any offence similar to the offence
of which he is accused or suspected of the
commission; and

(c) 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.
----------
(2023) 11 ILRA 36
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Capital Case No. 9 of 2020
With
Reference No. 6 of 2020
And
Capital Case No. 2 of 2021
And