# Dr. Abhijit Das & others v. State of U.P. and others

- **Citation:** (2000) 3 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-abhijit-das-others-v-state-of-u-p-and-others-39463
- **Pages:** 4

## Text

3All] Dr. Abhijit Das & others V. State of U.P. and others
21
respondent no.2 while considering the
release application filed by the petitioners.

Lastly it may be noted that he was
considering
the
objection
of
the
prospective allottee in regard to the
application filed by the petitioners for the
release of the disputed house. In Talilb
Hasan
and
another
Vs.1st
additional
District Judge. Naintal and others,
1986(1)ARC, it has been held that the
prospective allottee has no right to
participate in the proceedings and contest
the release application filed by the
landlord. Respondent No.1 dismissed the
revision without examining the record of
the case.

In view of the above the writ petition
is
allowed
and
the
orders
dated
30.4.1981,10.10.1983,19.10.1983
and
20.7.1984 are hereby quashed. The Rent
Control and Eviction Officer, respondent
No.2 is directed to decide to decide the
matter afresh in accordance with law
keeping in view the observations made
above.

Considering
the
facts
and
circumstances of the case , the parties shall
bear their own costs.
Petition Allowed.

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By the Court

1. In this writ petition under Article
226 of the Const., the petitioners who are
incriminated in case crime No.286 of 2000
under section 292,293 and 505 I.P.C.
Police
Station
Baramandal
District
Almorah have pressed into service the
following reliefs.

"
(i) Issue an order or direction in the
nature of certiorari quashing the F.I.R.
dated 20.04.2000 contained in Annexure
no.1 to the writ petition.
(ii) Issue a writ order or direction to
initiate the C.B.I. Investigation into the
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
22
whole matter including the activity of
Sahyog upto the stage of lodging of F.I.R.
and thereafter.
(iii) Issue a writ, order or direction in
the nature of certiorari quashing the show
cause notice dated 22.04.2000 (Annexure
no.10) issued by District Magistrate,
Almora.
(iv) Issue an appropriate writ order or
direction to the respondent to enlarge the
petitioners nos. 1 to 6 on bail and to set
them at liberty.
(v) pass such other and further order
which this Hon'ble Court may deem fit
and proper in the facts and circumstances
of the case.
(vi) award costs.
(vii) Issue a writ, order or direction
commanding the State of U.P. to pay a
compensation which this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case, which according
to the petitioners appear to be not less than
Rs.20,0000/- for each petitioner.
(viii)
To
punish
the
Police
officer/officers
found
guilty
of
the
contempt of the Hon'ble Supreme Court."

2. Petitioners 1 to 5 are associated
with
'Sahyog',
a
Non-Government
Organisation registered under the Indian
Societies Registration Act 1860 and the
Foreign contribution Regulation Act, 1976.
It is stated that the said Organisation was
constituted to work for the larger cause of
the Society in as much as it imparts
education on health and education with
special focus on women's health'. The
aforesaid Society betook a research to
explore the possibility of spread of
HIV/AIDS in Uttrakhand Region. With the
avowed objects of creating awareness of
AIDS, the society published a study report
captioned as 'Aids Aur Hum'-(Uttrakhand
Me Aids Ki Sambhawana).
3. On 20th April 2000, at about 3 p.m.
it is alleged, the local goons barged into
the Sahyog Head Office and gate-crashed
into the Secretary's i.e. Ms Joshdhara
Dasgupta's room uttered profanities and
broke the window panes etc. At about 4.30
p.m., the local police materialised at the
secne, seized all copies of the report
accusing the organisation of printing filthy
and pornographic materials and rounded
up Ms Jashodhara Das Gupta and the
others. A first information report was
lodged the very day. Thereupon, they were
made that they had been taken into custody
because atmosphere in the area was
surcharged
with
frayed
tempers and
hostility. This incident enjoyed great
media
hype
in
different
National
Newspapers playing an incediary role to
work up the sentiments of the people
which led to frayed tempers. As a sequel,
some more proceedings in the nature of
preventive action under section 107/116
and 151 Cr.P.C. and also under section 133
Cr.P.C. were initiated. The further case of
the petitioners is that after they were
arrested, no legal assistance was provided
so as to enable them to move the Court for
bail. It is specifically stated that Ms Tulika
Srivastava, a practising Advocate and
Human
Rights
Activities,
was
not
permitted to meet the petitioners and/or to
move bail application on their behalf
owing to hostile resistance of the members
of the local bar police officials besides the
local people of Almora. It is further
alleged that entire atmosphere was vitiated
due to misreading of bits of information
publishes by Sahyog in their report-'Aids -
Aur-Hum'. In the Supplementary affidavit,
credence has been placed on the clipping
of news item published in Amar Ujala
dated 5.5.2000 to prop up the case that the
petitioners were handcuffed and brought
bare-footed from the District Jail Almora
3All] Dr. Abhijit Das & others V. State of U.P. and others
23
to the Court of Chief Judl. Magistrate on
4.5.2000 parading them through main
market. An application for bail moved on
behalf of the petitioners before the Chief
Judicial Magistrate, Almora. A contention
was raised on behalf of the prosecution
that
the
report
has
impaired
and
diminished the status of the people
residing in the hill area in the eye of the
whole world culminating in agitation and
movement in the Uttrakhand Region. The
Chief Judl. Magistrate rejected the bail
application without assigning any reason
whatsoever. Since the petitioners have
moved this Court in the present petition
seeking quashing of the F.I.R. and other
ancillary relief's as excerpted above,
including prayer for bail in the present
proceedings
instead
of
moving
the
Sessions Judge, stemming from the ground
that the atmosphere there is antithetical to
fair hearing.

4. We have heard Sri Ravi Kiran
Jain, Senior Counsel appearing for the
petitioners, Sri Amar Jeet Singh, learned
A.G.A. representing the State authorities,
Sri L.P.Naithani Senior Advocate, assisted
by
Sri
Sudhanshu
Dhuliya,
counsel
appearing for the respondents at a prolix
length particularly on the question of bail,
for in our opinion, the matter commends
full dressed hearing after exchange of
affidavits between the parties.

5. Sri Ravi Kiran Jain for the
petitioners has contended that except the
offence under section 505 I.P.C., other
offences are bailable and so far as section
505 I.P.C. is concerned, no offence
whatsoever is made out and to cap it all,
the maximum punishment provided therein
is 3 years R.I. and by now the petitioners
have already suffered incarceration for
more than a month and therefore, in the
facts and circumstances of the case, the
petitioners' prayer for bail should be
allowed. Sri Jain further canvassed that
some fundamentalists made the situation
worse inasmuch as they entered the
courtroom of the Chief Judl. Magistrate
Almora and provoked furore as a result of
which the learned Magistrate rejected the
bail application fearing a fundamentalist
backlash.

6. Learned A.G.A. Amarjeet Singh
and Sri Naithani appearing for the
respondents, opposed the prayer for bail
and strenuously contended that though
there is no dearth of power under Art. 226
of the Const to grant interim bail pending
writ petition, the petitioners should have
availed of the forum under section 439
Cr.P.C.; further that no prima facie case
for quashing the F.I.R. is made out and
besides the situation in the area being
surcharged with emotions, they should not
be admitted to bail. Sri Naithani has
specifically urged that the report published
by Sahyog in its report 'Aids-Aur-Hum'
has offered the sentiments of the people of
entire Uttrakhand and this should be
reckoned with the petitioners' prayer for
interim bail.

7. Since the issue is emotively
sensitive, we have heard the counsel for
the
parties
at
prolix
length
and
scrupulously
scanned
the
materials
available on the record. Before delving
into the contentions raised at the bar, we
feel called to dwell on duties of a Judges
while dealing with law matters. We call in
aid certain Latin apophthegms/maxims.
Concientia Legalise Lege Fundature which
signifies that legal conscience must be
founded
upon
law;
Concientia Legi,
Nunquam contravenit which gives out that
legal conscince never contravenes law;
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
24
Concscientious Legis ex legi Pendet which
connotes that conscience of a Judge in law
court depends upon law. We have brought
to bear the aforesaid legal maxim because
a contention has been raised by Sri
Naithani that the courts should bear in
mind
the
public
sentiments
while
determining the petitioners' prayer for bail.
Since the petitioners have prayed for
quashing of the F.I.R. and other ancillary
relief's which may entail full fledged
hearing, we propose to take up the matter
in the month of July and hence we forbear
from pronouncing upon the merit as to
whether prima facie case under the
relevant provision of the I.P.C. is made out
as it would amount to prejudging the issue.

8. So far as ball is concerned, both
the High Court and the Sessions Judge
have concurrent powers under section 439
Cr.P.C. to deal with the prayer for bail and
in the present fact scenario, the question
that crops up is whether the petitioner will
be allowed by the people of this region to
have their bail application considered in a
judicious atmosphere, if they are relegated
to the Sessions Court for bail? Even
according to Sri Naithani the tempers are
running high in the entire Uttar Khand
region
due
to
publication
of
the
controversial report in 'Aids-Aur-Hum'
published by Sahyog and in the situation
when the entire region is said to be in
fermentation, we feel inclined to entertain
the prayer for interim nail. The question
whether a case is made out is a question,
which has to be determined in the main
petition but in the fact-situation of the
case, we do not bail pending disposal of
the writ petition. It brooks no doubt that
application for bail under section 439
Cr.P.C. is to be decided by a Single Judge
but as stated supra, since relief has been
sought for quashing the F.I.R., the
ancillary relief of bail can decided by a
Division Bench.

It is worthwhile to quip hare that
during the pendency of the writ petition,
the District Magistrate Almora, passed an
order of preventive detention in exercise of
power under sub-section 3 (3) read with
sub sec.(2) of section 3 of National
Security Act, 1980. The said order even
according to Sri Naithani was totally
uncalled for and has been rightly recalled.

Accordingly, it is ordered that the
petitioners 1 to 6 be enlarged on bail on
condition that they with two sureties will
enter into bond in a sum of Rs.20,000/-
each. The bonds and sureties will be
subject to the satisfaction of the C.J.M.
Almora.

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