# Anupam Shukla @ Anupama Tripathi v. State of U.P. 358 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 12 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-06
- **Case number:** Criminal Misc. Bail Application No. 38698 of 2024
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anupam-shukla-anupama-tripathi-v-state-of-u-p-358-indian-law-reports-allahabad-51213
- **Pages:** 10

## Headnote

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Instant
case imposed upon applicant on basis of
solitary case mentioned in Gang Chart -
Allegation against applicant was that she
along with co-accused was operating gang
and
habitual
to
commit
offence
-
According to prosecution, complainant
lodged criminal case against her with
allegation that threats were extended to
complainant for illegal demand of money -
Applicant
challenged
FIR,
interim
protection granted to her
- Further
submits that though interim protection
granted
to
her,
Investigating
Officer
illegally arrested her and sent her to jail -
Thereafter, she moved bail application,
enlarged on bail - All FIRs lodged against
her with mala fide intention for purpose of
harassment - Languishing in jail since
4.9.2024, no likelihood of early conclusion
of trial. (Para 2, 3)

Informant submitted that applicant and
other gang members whenever found
investigation was not in their favour, they
moved application u/s 156(3) Cr.P.C.
against investigating officer, all accused
are gangster, operating well organized
gang - Apart from instant case, applicant
had 4 criminal history, out of which only
one case has been mentioned in gang
chart - Three other cases are of extortion.
(Para 5)

Held, totality of circumstances and gravity
of offence go against applicant - The
instant case registered against applicant
does not seem to be misuse of act as she
and other co-accused persons had long
criminal history. (Para 7, 8)

Thus, no reasonable ground to believe
that applicant was not guilty of such
offences and not likely to commit any
offence in future while on bail - Not a fit
case for bail, rejected. (para 9, 10)

Bail application rejected. (E-13)

List of Cases cited:

Mohd. Afzal Vs St. Of U.P, (Criminal Misc. Bail
application No. - 38698 of 2024), decided on
11.11.2024

## Text

12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
357
foundations
of
judicial
dispensation.
Persons accused with same offence shall
never be treated differently either by the
same court or by the same or different
courts. Such an action though by an
exercise of discretion despite being a
judicial one would be a grave affront to
Articles 14 and 15 of the Constitution of
India."

15. In view of the law laid down by
the Apex Court in the case of Rabi Prakash
(supra), the twin condition under Section
37(1)(b)(ii) of the NDPS Act cannot come
in
the
way
of
fundamental
rights
guaranteed to the accused under Article 21
of the Constitution of India considering his
long incarceration and slow progress of the
trial. Likewise, as held by the Apex Court
in the case of Satender Kumar Antil
(supra), since three co-accused persons
have been granted bail by this case, the
applicant cannot be treated differently.

16. In view of the discussions made
herein above, the bail application of the
applicant is allowed.

17. Let the applicant, Mohd. Hasnain,
involved in Case Crime/FIR No. 478/2023,
under Sections 8/21C/29/60(3) of NDPS Act,
Police Station - Jaidpur, District - Barabanki,
be released on bail on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
which are being imposed in the interest of
justice:-

(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 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.

(iv) 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.

(v) 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.

(vi) 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.
----------
(2024) 12 ILRA 357
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Criminal Misc. Bail Application No. 38698 of
2024

Anupam Shukla @ Anupama Tripathi
 ...Applicant
Versus
State of U.P. ...Opposite Party
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Utsav

Counsel for the Opposite Party:
G.A., K.K. Rao, Pradeep Kumar Srinette

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3(1) & 19(4) - Indian
Penal Code, 1860 - Section 386 - Instant
case imposed upon applicant on basis of
solitary case mentioned in Gang Chart -
Allegation against applicant was that she
along with co-accused was operating gang
and
habitual
to
commit
offence
-
According to prosecution, complainant
lodged criminal case against her with
allegation that threats were extended to
complainant for illegal demand of money -
Applicant
challenged
FIR,
interim
protection granted to her
- Further
submits that though interim protection
granted
to
her,
Investigating
Officer
illegally arrested her and sent her to jail -
Thereafter, she moved bail application,
enlarged on bail - All FIRs lodged against
her with mala fide intention for purpose of
harassment - Languishing in jail since
4.9.2024, no likelihood of early conclusion
of trial. (Para 2, 3)

Informant submitted that applicant and
other gang members whenever found
investigation was not in their favour, they
moved application u/s 156(3) Cr.P.C.
against investigating officer, all accused
are gangster, operating well organized
gang - Apart from instant case, applicant
had 4 criminal history, out of which only
one case has been mentioned in gang
chart - Three other cases are of extortion.
(Para 5)

Held, totality of circumstances and gravity
of offence go against applicant - The
instant case registered against applicant
does not seem to be misuse of act as she
and other co-accused persons had long
criminal history. (Para 7, 8)

Thus, no reasonable ground to believe
that applicant was not guilty of such
offences and not likely to commit any
offence in future while on bail - Not a fit
case for bail, rejected. (para 9, 10)

Bail application rejected. (E-13)

List of Cases cited:

Mohd. Afzal Vs St. Of U.P, (Criminal Misc. Bail
application No. - 38698 of 2024), decided on
11.11.2024

(Delivered by Hon'ble Ashutosh Srivastava, J.)

1. Heard Shri Utsav, learned counsel
for the applicant, learned AGA for the
State-respondents, Shri K. K. Rao, learned
counsel for the informant in predicate
offence and perused the record.

2. The present bail application under
Section 439 Cr.P.C. has been filed on
behalf of applicant Anupam Shukla Alias
Anupama Tripathi under Section 439 of
The Code of Criminal Procedure, with a
prayer to release her on bail in Case Crime
No. 339 of 2024, under Sections 2, 3(1)
Uttar Pradesh Gangsters and Anti Social
Activities
(Prevention)
Act,
1986,
registered at Police Station Civil Lines,
District Prayagraj, during pendency of the
trial.

3. It has been submitted by learned
counsel for the applicant that the applicant
is innocent and has been falsely implicated
in this case due to ulterior motive. Present
case has been imposed upon the applicant
on the basis of solitary case mentioned in
the Gang Chart. Learned counsel for the
applicant submits that the allegation against
the applicant is that the applicant along
with
co-accused
Apurva
Sonkar
is
operating a gang and the applicant is a
member of the said Gang and is habitual to
commit offence under Chapter 17 and 22 of
the IPC. Learned counsel for the applicant
12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
359
submits that according to the prosecution
story, the complainant has lodged a
criminal case, being Case Crime No. 340 of
2023 under Section 386 against the
applicant with the allegation that threats
were extended to the complainant for
illegal demand of money. The applicant
had challenged the aforesaid FIR before
this Court, in which interim protection was
granted to the applicant by this Hon'ble
Court. Learned counsel for the applicant
submits that though this Court had granted
interim protection to the applicant, but the
Investigating Officer illegally arrested the
applicant and sent her to jail. Thereafter,
applicant moved bail application before this
Court and she was enlarged on bail by this
Court. Learned counsel for the applicant
submits that applicant is having criminal
history of four cases including the present
case. All the FIRs were lodged against the
applicant with mala fide intention for the
purpose of harassment. It is next submitted
that there is also no possibility of the
applicant either fleeing away from the
judicial process or tampering with the
witnesses.
The
applicant,
who
is
languishing
in
jail
since
4.9.2024
undertakes that he will not misuse the
liberty, if granted. It has also been pointed
out that in the wake of heavy pendency of
cases in the Court, there is no likelihood of
any early conclusion of trial.

4. Per contra learned A.G.A. has
opposed the prayer for bail of the applicant.

5. Shri K. K. Rao, learned counsel for
the informant in predicate offence has also
vehemently opposed the prayer for bail and
submits as under:-

(i) that the Applicant is a habitual
offender and similar nature of crimes are
being committed by the applicant and other
gang members. Applicant being a lady is
taking the benefit of being a woman by
lodging false F.I.R. under section 376
I.P.C. against the innocent and respectful
persons of the society. Applicant and other
gang members whenever found that the
investigation is not concluded in their
favour, they use to given application U/s
156(3) Cr.P.C. against the investigating
officer of that case.

(ii) that section 2(b) of the Uttar
Pradesh gangsters and anti-social activities
(prevention) act, 1986 defines the term
"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. Applicant and other co-accused
persons operate an organized gang and
commit offences punishable under Indian
penal code. The very purpose of the gang is
to ill financial gains by committing
innumerable crimes of serious nature.

(iii) that the offence committed
by the applicant and other co-accused
comes within the preview of section
2(b)(iv) of the Uttar Pradesh gangsters and
anti-social activities (prevention) act, 1986
"preventing or attempting to prevent any
public servant or any witness from
discharging his lawful duties".

(iv) that the applicant and all the
accused are gangster and they are operating
a well organized gang. All the accused are
cunning criminals and with gang leader
Apurva Sonkar, in a planned manner they
extort money from people by luring them
with the promise of getting government job
for their own and their families economic
and material benefits. These people, in
order to evade to return the money, commit
360 INDIAN LAW REPORTS ALLAHABAD SERIES
heinous crime, like extortion by getting
registered false case and earn illegal
money.

(v) that the investigating officer
during the investigation of case crime no.
179/2020 had mentioned the finding in
supplementary case diary No. 11 that the
applicant during the investigation being
annoyed with earlier investigating officer,
has filed an application U/s 156(3) Cr.P.C.
against the earlier investigating officer
namely
Rajesh
Yadav
C.O.
City-IV
leveling the charges U/s 4 S.C./S.T. act. It
was further mentioned that the applicant
whenever finds that the investigation is not
concluded in her favor, she used to file an
application U/s 156(3) Cr.P.C. against that
investigating officer. Details of some of the
cases in which application under section
156(3) has been filed by the applicant and
co-accused against the police officials are
as below:-

1. Application U/s 156(3) Cr.P.C.
filed by gang leader Apoorva Sonkar
registered as Misc. case No. 404/2022 U/s
4 (d), (e), (f), (g) S.C./S.T. act against
Rajesh Yadav C.O. City-IV (investigating
officer of case crime No. 0066/2020)

2. Application U/s 156(3) Cr.P.C.
filed by Applicant Anupam U/s 166,
166(a), 166(b), 167, 175, 177, 198, 197,
199, 217, 218, 219, 354, 504, 506, 120-B
I.P.C. against S.H.O. and 3 other police
persons of P.S. Phaphamau.

3. Application U/s 156(3) Cr.P.C.
filed by gang leader Apoorva Sonkar
registered as Misc. case No. 10614/2023
U/s 4 (d), (e), (f), (g) S.C./S.T. act, 166(a),
166(b) I.P.C. against Chirag Jain I.P.S.,
Investigating officer of case crime No.
0066/2022 (During investigation of case
crime No. 0066/2022)

4. Application U/s 156(3) Cr.P.C.
filed by gang leader Apoorva Sonkar
against Sanjay Kumar Patel, Clerk Samaj
Kalyan Vibhag S.C./S.T. department.

(vi) that the applicant namely
Anupam Shukla has filed an application
U/s 156(3) Cr.P.C. against 7 named persons
namely
Dharmendra
Kumar
Sonkar,
Rajendra Kumar Sonkar, Rohit Kumar
Sonkar, Robin Sonkar, Pankaj Sonkar,
Neeshu
Sonkar,
Tarachand
and
4-5
unknown persons leveling allegations for
the offences punishable under sections 376,
392, 323, 504, 506 and 307 I.P.C. It is
pertinent
to
mention
that
the
First
Information report has been lodged against
Neeshu Sonkar who is a practicing
advocate. The fact is that Dharmendra
Kumar
Sonkar
had
lodged
First
Information Report against the gang
members of present case and to exert
pressure in order to effect compromise,
applicant Anupam Shukla has given the
aforesaid false and fabricated application
U/s 156(3) Cr.P.C.

(vii) that apart from the present
case, applicant has a history of 4 other
criminal cases to his credit out of which
only one case has been mention in the gang
chart. Three other cases are of same nature
i.e. Extortion. The applicant and other coaccused persons are professional criminals
and there are several criminal cases of
extortion, cheating and fraud lodged by
different persons against them in different
police stations of district Prayagraj.

(viii) that the applicant and other
gang members had lodged several false
cases against the innocent persons of
Prayagraj, details of which are as below:-

1. Case Crime No. 179/2020 U/s
147, 504, 506, 354(KA) I.P.C., U/s 66 I.T.
act and section 3(2)(5A) S.C./S.T. Act P.S.
George Town dated 26.05.2020. Final
Report has been submitted.

2. Case Crime No. 385/2022 U/s
147, 504, 506, 354(KA) I.P.C. P.S.
12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
361
Phaphamau dated 19.11.2022 lodged by
the applicant against predicate victim, his
wife and other persons. Final Report has
been submitted.

3. Case Crime No. 472/2020 U/s
147, 504, 506, 354(KA) I.P.C., U/s 66 I.T.
act P.S. Phaphamau dated 23.06.2020
lodged by the applicant against the wife of
predicate victim and other persons. Final
Report has been submitted.

4. Case Crime No. 66/2022 U/s
392, 307, 323, 504, 506, 406, 376 I.P.C.
P.S. Mahila Thana dated 14.07.2022
lodged by the Gang Leader Apoorva
Sonkar against predicate victim and other
persons. Final Report has been submitted.

5. Case Crime No. 45/2022
(lodged
against
retired
police
personal),under section 354-B, 323, 504,
506, 452, 392 I.P.C. P.S. Mahila Thana,
Prayagraj lodged by the Gang Leader
Apoorva Sonkar against Jai Prakash
Dubey and entire family.

6. Case Crime No. 244/2023 u/s
376D, 392, 323, 504, 506, 307 IPC PS
Kudganj lodged by the applicant against
Dharmendra Sonkar and other persons.

(ix) That some of the criminal
history of the applicant and co-accused
who formed the gang, are as under:-

1. Case Crime No. 304/2019 U/s
419, 420, 467, 468, 471, 493, 354(Kha),
504, 506, 190, 51 1 I.P.C., P.S. Cantt.

2. Case Crime No. 422/2020 U/s
147, 323, 504, 506, 406 and 3(2)(Va)
Kydganj.

3. Case Crime No. 152/2023 U/s
419, 420, 504, 506, 406, 294 P.S.
Daraganj.

4. Case Crime No. 555/2023 U/s
420, 406, 506 I.P.C. P.S. Dhoomanganj.

5. Case Crime No. 204/2023 U/s
392, 384, 342, 323, 504, 506 I.P.C. P.S.
Daraganj.

6. Case Crime No. 242/2023 U/s
147, 323, 504, 506, 342, 384 I.P.C. and
section 3(2)(Va) S.C/S.T act P.S. Kydganj.

7. Case Crime No. 243/2023 U/s
147, 323, 504, 506, 341, 324, 392 I.P.C.
P.S. Kydganj.

8. Case Crime No. 340/2023 U/s
386, 506 I.P.C. P.S. Civil Lines.

9. Case No. 515/2020 U/s 138
N.I. Act P.S. Atarsuiya.

10. Case No. 754/2020 U/s 138
N.I. Act P.S. Kotwali.

11. Case No. 801/2021 U/s 138
N.I. Act P.S. Kydganj.

12. Case No. 545/2019 U/s 138
N.I. Act P.S. Cantt.

13. Case No. 742/2020 U/s 138
N.I. Act P.S. Kotwali.

14. Case No. 755/2019 U/s 138
N.I. Act.

(x) Learned counsel for the first
informant/complainant has cited certain
case law in order to substantiate his
arguments, the relevant paragraphs of the
case law which are as under:-

Criminal Misc. Bail Application
No. 8930 of 2023 (Mohd. Afzal Vs State
Of U.P.)

Relevant paragraphs of the case
law:-

20 (I). Ashok Kumar Dixit vs.
State of UP :

151. We are unable to uphold the
submission. The impugned Act is designed
to deal with a lass of crime which is
entirely distinct from the ordinary offences,
and the accused involved may be such as
against whom it may be difficult to collect
evidence sometimes. Consequently, if the
Legislature made a provision for larger
period of remand than contemplated by
sub-s. (2) of S. 167, Cr. P.C., it may not be
possible to hold sub-s. (2) of S. 19 to be
ultra vires on that ground.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

152. Further first remand is
granted by the Judicial Magistrate or by
the Executive Magistrate which cannot
exceed more than sixty days. Any further
remand is granted only by the special
Judge after satisfying himself as to the
desirability of granting further time to the
investigating officer for completing the
investigation. The discretion to grant
remand for a period of sixty days is thus
vested in a Judicial Officer, namely, the
Special Judge who may disallow further
remand asked for by the investigating
agencies, if grounds for the same are not
made out. Power of further remand is not
with any executive authority. We therefore,
do not see any unconstitutionality in S.
19(2) of the Act.

153.
Arguments
were
also
advanced before us challenging the validity
of Cl. (e) of S. 2, U.P. Act. 7 of 1986, in so
far as it provided that even a person in
whose welfare the public servant is
interested would be a member of his family.
Clause (e) provides:? 4 AIR 1987 All 235
[6] "Member of the family of a public
servant means his parents or spouse and
brother, sister, son, daughter, grandson,
granddaughter or the spouses of any of
them, and includes a person dependent on
or residing with the public servant and a
person in whose welfare the public servant
is interested."

154. We find that the aforesaid
definition of member of the family of a
public servant is extremely vague and
incapable of being worked out. How could
a person in whom a public servant is
interested be a member of his family. This
definition including any person in whose
welfare the public servant if interested is
extremely vague, and, as such is liable to
be held as unreasonable. As a result
whereof, we hereby find that the phrase"
and a person in whose welfare the public
servant is interested" is unconstitutional on
the ground of being unreasonable and
violative of Art. 14 of the Constitution.
However, since this clause is capable of
being severed from the remaining, it is not
correct to argue that the whole of cl. (e) of
S. 2 would have to be struck down.

155. These petitions had been
filed mainly on the ground that U.P. Act 7
of 1986 was ultra vires the Constitution.
We have not been able to find substance in
any one of the grounds of attack of the Act.
So far as our power to quash the
investigation and the proceedings pending
before the Special. Judges challenged in
some of the writ petitions before us, are
concerned, we are of opinion that this is
not possible to be done in these cases.
Judicial opinion seems to be settled and we
have several authorities of the Supreme
Court where interference by the Court into
police investigation has been disapproved.
This question arose in connection with an
application under S. 561A Criminal P.C. in
an appeal in State of West Bengal v. S.N.
Basak, AIR 1963 SC 447. Kapoor, J.
quoted with approval the observations of
the Judicial Committee in the case of
Emperor v. Khwaja Nazir Ahmad, AIR
1945 PC 18, where the Privy Council
observed:

"The functions of the judiciary
and the police are complementary not
overlapping, and the combination of
individual liberty with a due observance of
law and order is only to be obtained by
leaving each to exercise its own function,
always, of course, subject to the right of the
court to interfere in an appropriate case
when moved under S. 491, Criminal P.C. to
give directions in the nature of habeas
corpus."

156. This view was followed by
the Supreme Court in State of West Bengal
v. Sampat Lal, (1985) 1 SCC 317 : AIR
12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
363
1985 SC 195 and Eastern Spinning Mills
Shri Virendra Kumar Sharda v. Rajiv
Poddar, 1989 Supp (2) SCC 385 : AIR
1985 SC 1668. In this case, the Supreme
Court observed: [7] "We consider it
absolutely unnecessary to make a reference
to the decision of this Court and they are
legion which have laid down that save in
exceptional cases where non-interference
would result in miscarriage of justice, the
Court and judicial process should I not
interfere at the stage of investigation of
offences."

157. Of course, the decisions
cited above were in connection with S. 482,
Cr. P.C., but the scope of interference
under Art. 226 of the Constitution is
narrower. The power of superintendence of
the High Court under Art. 226 being
extraordinary is to be exercised sparingly
and only in appropriate cases. The power
to issue certiorari cannot be invoked to
correct an error of fact which a superior
Court can do in exercise of its statutory
power as a Court of appeal. The High
Court cannot in exercising its jurisdiction
under Art. 226 convert itself into a Court of
appeal when the legislature has not chosen
to confer such a right.

158. The High Court's function is
limited to see that the subordinate court or
Tribunal or authority functions within the
limits of its power. It cannot correct errors
of fact by examining the evidence.

159. In a writ petition filed under
Art. 32 of the Constitution, the argument
made on behalf of the petitioner of that
case that there I was no material
whatsoever to warrant the framing of
charges, hence, the entire proceedings
were liable to be quashed. The Supreme
Court in Raghubir Singh v. State of Bihar,
(1986) 4 SCC 481 : AIR 1987 SC 149,
repelled that argument by saying: "It was
strenuously contended by Sri Jethmalani
that there was no material whatsoever to
warrant the framing of charges for any of
the offences mentioned in the charge sheet
other than S. 165A. We desire to express no
opinion on this question. It is not a matter
to be investigated by us in a petition under
Art. 32 of the Constitution. We wish to
emphasise that this Court cannot convert
itself into the Court of a Magistrate or a
Special Judge to consider whether there is
evidence or not justifying the framing of
charges".

160. For the reasons given above,
all the writ petitions fail and are dismissed
with costs. Interim order shall stand
vacated.

(II). Dharmendra Kirthal vs.
State of UP :

45. It is apposite to note here that
there is a distinction between an accused
who faces trial in other courts and the
accused in the Special Courts because the
accused herein is tried by the Special Court
as he is a gangster as defined under
Section 2(c) of the Act and is involved in
anti-social activities with the object of
disturbing public order or of gaining any
undue temporal, pecuniary, material or
other advantage for himself or any other
person. It is a crime of a different nature.
Apart from normal criminality, the accused
is also involved in organised crime for a
different purpose and motive. The accused
persons under the Act belong to an
altogether
different
category.
The
legislature has felt that they are to be dealt
with
in
a
different
manner
and,
accordingly, the trial is mandated to be
held
by
the
Special
Courts
in
an
expeditious manner. The intention of the
legislature is to curb such kind of
organised crimes which have become
epidemic in the society.

(III). State of Maharashtra vs.
Vishwanath Maranna Shetty :
364 INDIAN LAW REPORTS ALLAHABAD SERIES

29. While dealing with a special
statute like MCOCA, having regard to the
provisions contained in sub-section (4) of
Section 21 of this Act, the court may have
to probe into the matter deeper so as to
enable it to arrive at a finding that the
materials collected against the accused
during the investigation may not justify a
judgment of conviction. Similarly, the court
will be required to record a finding as to
the possibility of his committing a crime
after grant of bail. What would further be
necessary on the part of the court is to see
the culpability of the accused and his
involvement in the commission of an
organised
crime
either
directly
or
indirectly. The court at the time of
considering the application for grant of
bail shall consider the question from the
angle as to whether he was possessed of the
requisite mens rea. In view of the above, we
also reiterate that when a prosecution is for
offence(s) under a special statute and that
statute contains specific provisions for
dealing with matters arising thereunder,
these provisions cannot be ignored while
dealing with such an application. Since the
respondent has been charged with the
offence under MCOCA, while dealing with
his application for grant of bail, in addition
to the broad principles to be applied in 6
(2012) 10 SCC 561 [14] prosecution for
the offences under IPC, the relevant
provision in the said statute, namely, subsection (4) of Section 21 has to be kept in
mind. It is also further made clear that a
bare reading of the non obstante clause in
sub-section (4) of Section 21 of MCOCA
that the power to grant bail to a person
accused of having committed offence under
the said Act is not only subject to the
limitations imposed under Section 439 of
the Code of Criminal Procedure, 1973 but
also subject to the restrictions placed by
clauses (a) and (b) of subsection (4) of
Section
21.
Apart
from
giving
an
opportunity to the prosecutor to oppose the
application for such release, the other twin
conditions viz. (i) the satisfaction of the
court that there are reasonable grounds for
believing that the accused is not guilty of
the alleged offence; and (ii) that he is not
likely to commit any offence while on bail,
have to be satisfied. The satisfaction
contemplated in clauses (a) and (b) of subsection (4) of Section 21 regarding the
accused being not guilty, has to be based
on "reasonable grounds". Though the
expression "reasonable grounds" has not
been defined in the Act, it is presumed that
it is something more than prima facie
grounds. We reiterate that recording of
satisfaction on both the aspects mentioned
in clauses (a) and (b) of sub-section (4) of
Section 21 is sine qua non for granting bail
under MCOCA.

30. The analysis of the relevant
provisions of MCOCA, similar provision in
the NDPS Act and the principles laid down
in both the decisions shows that substantial
probable cause for believing that the
accused is not guilty of the offence for
which he is charged must be satisfied.
Further, a reasonable belief provided
points to existence of such facts and
circumstances as are sufficient to justify the
satisfaction that the accused is not guilty of
the alleged offence. We have already
highlighted the materials placed in the case
on hand and we hold that the High Court
has not satisfied the twin tests as mentioned
above while granting bail.

(IV). Collector of Customs v.
Ahmadalieva Nodira :

8. In the aforesaid background,
this does not appear to be a case where it
could be reasonably believed that the
accused was not guilty of the alleged
offence. Therefore, the grant of bail to the
accused was not called for. The impugned
12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
365
order granting bail is set aside and the bail
granted is cancelled. The respondentaccused is directed to surrender to custody
forthwith. Additionally, it shall be open to
the trial court to issue notice to the surety
and in case the accused does not surrender
to custody, as directed, to pass appropriate
orders so far as the surety and the amount
of security are concerned. It is made clear
that no final opinion on the merit of the
case has been expressed in this judgment,
and whatever has [16] been stated is in the
background of Section 37 of the Act for the
purpose of bail.

(V). Kamlesh Pathak v. State of
UP :

17. Section 12 of U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986 provides that trial under the Act of
any offence by special court shall have
precedence over the trial of any other case
against the accused in any other court and
shall be concluded in preference to the trial
of such other case and accordingly trial of
such other case shall remain in abeyance.
The validity of the aforesaid Act was in
question before the Hon'ble Supreme Court
in the case of Dharmendra Kirthal v. State
of U.P., (2013) 8 SCC 368. The Apex Court
after
detail
analysis,
upheld
the
constitutional validity of Section 12 of the
U.P. Gangsters and Anti Social Activities
(Prevention) Act, 1986 by holding that it
does not infringe any of the facets of
Articles 14 and 21 of the Constitution of
India.

18. Accordingly, it goes without
saying that the case against the applicant
under the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 shall have
precedence over the trial of any other case
against the accused.

6. I have heard learned counsel for the
parties and perused the record.

7. Along with the present case, other
FIRs have been registered against the
applicant and other co-accused persons, as
such, inference can be drawn against the
applicant that he along with other coaccused persons is operating an organized
gang. The totality of circumstances and the
gravity of offence mentioned in the said
FIRs go against the applicant.

8. The instant case registered against
the applicant does not seem to be misuse of
the act as the applicant and other coaccused
persons
associated
with
the
applicant have a criminal long criminal
history.

9. Thus, there is no reasonable ground
for this Court to believe that the applicant
is not a guilty of such offences and
applicant is not likely to commit any
offence in future while on bail, as is the
requirement of Section 19 (4) of the U.P.
Gangster Act.

10. Considering the submissions of
learned counsel for the parties, nature of
allegations, gravity of offence and all
attending facts and circumstances of the
case, the Court is of the opinion that it is
not a fit case for bail. Hence, bail
application of the applicant is hereby
rejected.

11. It is made clear that observation
made hereinabove are limited to the facts
brought in by the learned counsel for the
parties pertaining to the disposal of the bail
application and the aforesaid observations
shall have no bearing on the merits of the
case during trial.
----------
366 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 12 ILRA 366
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 43186 of
2024

Smt. Veerbala Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Amarjeet Choudhary, Atharva Dixit

Counsel for the Opposite Party:
G.A., Rajiv Lochan Shukla, Sai Girdhar

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections103(1), 238(B), 324(6),
3(5)
&
127(6)
-
Bharatiya
Sakshya
Adhiniyam, 2023 - Section 119 - FIR
lodged
by
informant
and
had
apprehension that some unknown persons
have committed murder of his father.
(Para 4)

Contention by accused that FIR was
delayed by more than one day, no
explanation
given
-
After
inquest
proceedings
and
post-mortem
examination
of
deceased,
FIR
was
instituted
-
Her
name
was
not
mentioned in FIR - St.ment of owner of
offending car or CCTV footage does not
implicate applicant, as she was not seen
in car at time of dumping of dead body
of
deceased
-
On
information
of
squealer,
applicant
along
with
coaccused persons arrested - St.ment of
star witness was recorded belatedly,
who had seen deceased person going on
motorcycle and mentioned that woman
as pillion rider on motorcycle - No test
identification parade of applicant. (Para
7, 8, 11, 12, 13)

St. contended that complicity of applicant
was established by two star witnesses,
who have seen applicant and deceased
person and two accused persons going in
car, said witnesses are not interested
witnesses,
post-mortem
report
also
nullifies theory of accident - St.ment of
one person was recorded by IO, who St.d
on date of incidence, deceased asked his
mobile for making phone call, on call
female person was talking to deceased -
Said number was of applicant and she had
committed offence in collusion with coaccused persons. (Para 19, 20, 21, 24)

Held, recovery memo of car and other
documents from possession of applicant
and co-accused persons was clinching
evidence against them, declined to release
applicant on bail. (Para 25)

Bail application rejected. (E-13)

List of Cases cited:

1. Vinod Kumar Vs St. of Pun. 2015 (3) SCC 220

2. Hussain & anr. Vs U.O.I.(2017) 5 SCC 702

(Delivered by Hon'ble Krishan Pahal, J.)

1.
List
has
been
revised.
Supplementary affidavit filed by learned
counsel for the applicant is taken on record.

2. Heard Sri Manish Tiwari, learned
Senior Advocate, assisted by Sri Atharva
Dixit, learned counsel for the applicant, Sri
Rajiv Lochan Shukla, learned counsel for
the informant as well as Ms. Ifrah Islam,
learned State Law Officer and perused the
material placed on record.

3. Applicant seeks bail in Case Crime
No. 289 of 2024, U/S 103(1), 238(B),
324(6), 3(5), 127(6) of B.N.S., 2023, Police
Station Mainather, District Moradabad,
during the pendency of trial.