# Kamlesh Pathak (In Jail) v. State of U.P. Opp. Party

- **Citation:** (2024) 3 ILRA 1230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-19
- **Case number:** Criminal Misc. 2nd Bail Application No. 44594 of 2023
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-pathak-in-jail-v-state-of-u-p-opp-party-51550
- **Pages:** 11

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 439 - U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 3(1),
19(4)(b) & 12 - Second Bail Application -
Criminal History - Gang Leader - Mandatory Bail
Conditions - The applicant, Kamlesh Pathak, an
Ex-MLC, sought bail in Case Crime No. 462 of
2020 under Section 3(1) of the U.P. Gangsters
and Anti-Social Activities (Prevention) Act, 1986,
Police Station Auraiya, District Auraiya, linked to
two cases involving double murder and attempt
to murder (Case Crime Nos. 189 and 196 of
2020). The FIR alleged that the applicant, as a
gang leader, engaged in extortion, illegal land
encroachment, assault, and firing to maintain
dominance, notably in the daylight murder of an
advocate and his sister to grab temple land. The
applicant, with a criminal history of 37 cases
since 1974 (8 acquitted, 13 closed, 7 withdrawn,
2 unnoticed, 2 preventive, 1 decided, 4
pending), argued prolonged detention since
14.07.2020, bail in other cases, and parity with
a co-accused. The prosecution highlighted the
applicant's influence, pending SLPs against his
bail in the murder case, and the risk of witness
tampering. Held: The court, citing Neeru Yadav
Vs St. of U.P. ((2015) 3 SCC 527), Sudha Singh
Vs St. of U.P. ((2021) 4 SCC 781), Indresh
Kumar Vs St. of U.P. (2022 Live Law (SC) 610),
Deepak Yadav Vs St. of U.P. ((2022) 8 SCC
559), and Dharmendra Kirthal Vs St. of U.P.
((2013)
8
SCC
368),
rejected
the
bail
application.
The
court
emphasized
the
applicant's
extensive
criminal
history,
the
mandatory conditions under Section 19(4)(b) of
the Gangsters Act requiring reasonable grounds
to believe the accused is not guilty and unlikely
to reoffend, and the societal threat posed by the
applicant. Parity was dismissed as the coaccused's bail ignored Section 19(4)(b). The
court directed expeditious trial under Section 12
of the Act and Section 309 Cr.P.C., prioritizing
the Gangsters Act case.

Case Law Cited:

## Text

1230 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 1230
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. 2nd Bail Application No. 44594
of 2023

Kamlesh Pathak ...Applicant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Vijai Prakash Yadav, Sri Saghir Ahmad
(Sr. Advocate)

Counsel for the Opp. Party:
G.A., Sri Anurag Shukla, Sri Dharmendra
Shukla, Sri Saurabh Pathak, Sri Anil Tiwari
(Sr. Advocate)

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 439 - U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 3(1),
19(4)(b) & 12 - Second Bail Application -
Criminal History - Gang Leader - Mandatory Bail
Conditions - The applicant, Kamlesh Pathak, an
Ex-MLC, sought bail in Case Crime No. 462 of
2020 under Section 3(1) of the U.P. Gangsters
and Anti-Social Activities (Prevention) Act, 1986,
Police Station Auraiya, District Auraiya, linked to
two cases involving double murder and attempt
to murder (Case Crime Nos. 189 and 196 of
2020). The FIR alleged that the applicant, as a
gang leader, engaged in extortion, illegal land
encroachment, assault, and firing to maintain
dominance, notably in the daylight murder of an
advocate and his sister to grab temple land. The
applicant, with a criminal history of 37 cases
since 1974 (8 acquitted, 13 closed, 7 withdrawn,
2 unnoticed, 2 preventive, 1 decided, 4
pending), argued prolonged detention since
14.07.2020, bail in other cases, and parity with
a co-accused. The prosecution highlighted the
applicant's influence, pending SLPs against his
bail in the murder case, and the risk of witness
tampering. Held: The court, citing Neeru Yadav
Vs St. of U.P. ((2015) 3 SCC 527), Sudha Singh
Vs St. of U.P. ((2021) 4 SCC 781), Indresh
Kumar Vs St. of U.P. (2022 Live Law (SC) 610),
Deepak Yadav Vs St. of U.P. ((2022) 8 SCC
559), and Dharmendra Kirthal Vs St. of U.P.
((2013)
8
SCC
368),
rejected
the
bail
application.
The
court
emphasized
the
applicant's
extensive
criminal
history,
the
mandatory conditions under Section 19(4)(b) of
the Gangsters Act requiring reasonable grounds
to believe the accused is not guilty and unlikely
to reoffend, and the societal threat posed by the
applicant. Parity was dismissed as the coaccused's bail ignored Section 19(4)(b). The
court directed expeditious trial under Section 12
of the Act and Section 309 Cr.P.C., prioritizing
the Gangsters Act case.

Case Law Cited:

1. Neeru Yadav Vs St. of U.P., (2015) 3 SCC 527

2. Sudha Singh Vs St. of U.P., (2021) 4 SCC 781

3. Indresh Kumar Vs St. of U.P., 2022 Live Law
(SC) 610

4. Deepak Yadav Vs St. of U.P., (2022) 8 SCC
559

5. Dharmendra Kirthal Vs St. of U.P., (2013) 8
SCC 368

6. Dataram Singh Vs St. of U.P., (2018) 3 SCC
22 (distinguished)

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Saghir Ahmad, learned
Senior Advocate assisted by Mr. Raghav
Arora, learned counsel for the applicant,
Mr. Arbind Kumar, Mr. Deepak Mishra
and Mr. Rabindra Kumar Singh, learned
Additional
Government
Advocates
appearing for the State of U.P. as well as
Mr. Anil Tiwari, learned Senior Counsel
assisted by Mr. Anurag Shukla, learned
3 All. Kamlesh Pathak Vs. State of U.P.
1231
counsel appearing on behalf of complainant
of [double murder case (crime No. 189 of
2020) filed against the applicant and his
associates].

2- Brief facts of the case which are
required to be stated are that a first
information report under Section 3(1) of
U.P. Gangster and Anti-Social Activities
(Prevention) Act was lodged on 11.07.2020
against the applicant, who is Ex-MLC and
his other ten associates at Police Station
Auraiya, District-Auraiya on the basis of
two cases being Case Crime No. 189 of
2020, under Sections 147, 148, 149, 302,
307, 506 I.P.C. and Section 7 of Criminal
Law Amendment Act and Case Crime No.
196 of 2020 under Sections 147, 148, 149,
353, 307 I.P.C. and Section 7 of Criminal
Law (Amendment) Act registered against
him and others on 11.06.2020 at Police
Station Auraiya, District Auraiya. In the
first information report of this case, it is
alleged inter alia, that gang leader Kamlesh
Pathak (applicant) along with his gang
members carry out criminal incidents like
extortion, illegal encroachment of precious
government land, assault, firing etc. to
maintain their dominance and terror in the
society for their economic and worldly
benefits. Many criminal cases are already
registered against the applicant and his
associates, which they got compromised
due to their fear and influence. No one
comes to testify against them due to their
fear. They misused their position while
being in government and got their cases
closed. On 15.03.2020, an advocate Manjul
Chaube and his sister Sudha Chaube was
brutally murdered by firing in brought day
light in order to grab the valuable land of
"Panchmukhi Hanuman Temple" situated
in Arya Nagar, Auraiya. Due to which,
their fear, dread and terror has become so
widespread among the public that no one
from the public dares to speak and testify
against them, therefore it is not in public
interest for them to remain free. Hence it is
necessary to take action against them under
U.P. Gangster and Anti-Social Activities
(Prevention) Act, 1986.

2.2- After investigation police Report
(charge-sheet) under Section 173 (2)
Cr.P.C. has been submitted against the
applicant and other accused persons on
11.06.2020 and they are facing trial.

2.3- The first bail application of the
applicant was rejected by detail order of the
coordinate Bench of this Court dated
23.02.2023
in
Criminal
Misc.
Bail
Application No. 21738 of 2022.

2.4-

The
above
order
dated
23.02.2023 was challenged by the applicant
before Hon'ble the Apex Court by means
of Petition(s) for Special Leave to Appeal
(Crl.) No. 3438 of 2023, which was
dismissed by the Hon'ble Supreme Court
vide order dated 08.05.2023, leaving it
open to the petitioner to renew his request
of bail after completion of three months.

2.5- Thereafter second Miscellaneous
Application No. 1855 of 2023 in SLP (Crl)
No. 3438 of 2023 was preferred by the
applicant before Hon'ble Supreme Court,
but the same was dismissed as withdrawn
reserving liberty to the petitioner/applicant
to move High Court, if so advised, with the
observation that if application for bail is
filed by the applicant, the same shall be
considered
by
the
High
Court
as
expeditiously as possible.

2.6- In view of the above, the instant
second bail application under Section 439
of Cr.P.C. has been filed on behalf of the
applicant with a prayer to release him on
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
bail in Case Crime No. 462 of 2020
(Sessions Case No. 352 of 2021-State Vs.
Kamlesh Pathak and Others) under Section
3(1) of Uttar Pradesh Gangster and AntiSocial Activities (Prevention) Act, 1986,
Police Station-Auraiya, District-Auraiya
pending in the court of Additional District
and Session Judge, Court No.-II, Auraiya.

3- Main substratum of argument of
Mr. Saghir Ahmad, learned Senior Counsel
for the applicant is that the applicant is ExMLC, who is in jail in the present case
since 14.07.2020, but his trial has not yet
been concluded and till date out of sixteen
prosecution witnesses, only six prosecution
witnesses of charge sheet have been
examined before the trial court. As on date,
applicant is on bail in all pending criminal
cases against him except in the present case
and one co-accused Avanish Pratap Singh
has been granted bail, therefore applicant is
entitled to be released on bail.

3.1- So far as criminal history of the
applicant is concerned, it is submitted that
applicant has criminal history of total 37
cases, details whereof are as under:-

S.N
o.
Case
Crime
no.
&
year
Under
sections
Police
Station
and
District.
1.
82
of
1985
u/s 186, 189,
353,
504
IPC.
Police
station
Kotwali,
District
Auraiya.
2.
481 of
1984

u/s 332, 353,
171-F IPC &
section 132
(2)
Representati
on
of
the
People Act.
Police
station
Kotwali
Auraiya,
District
Etawah.

3.
480 of
1984

u/s 332. 353,
171-F IPC &
section 132
(2)
Representati
on
of
the
People Act.
Police
station
Kotwali
Auraiya,
District
Etawah.

4.
479 of
1984

u/s 332. 353,
171-F IPC &
section 132
(2)
Representati
on
of
the
People Act.
Police
station
Kotwali
Auraiya,
District
Etawah.

5.
55
of
1974

u/s 353, 393,
307 IPC.
Police
station
Kotwali
Auraiya,
District
Etawah.
6.
402 of
1983

u/s 147 and
353 IPC.
Police
station
Kotwali
Auraiya,
District
Etawah.
7.
273 of
2005

u/s 147, 148,
149,
307,
325 IPC.
Police
station
Kotwali,
District
Auraiya.
8.

383 of
1974

u/s 302 IPC.

Police
station
Kotwali
Auraiya,
District
Etawah.
9.
469 of
2007

u/s 395 and
397 IPC.
Police
station
Kotwali,
District
Auraiya.
10.
43
of
1991

u/s 395, 397,
332,
353
IPC.
Police
station
Kotwali,
3 All. Kamlesh Pathak Vs. State of U.P.
1233
District
Auraiya.
11.
365 of
1989

u/s 395, 397
converted
into
147,
148,
149,
323 IPC.
Police
station
Kotwali,
District
Auraiya.

12.
364 of
1989

u/s 395 &
397 IPC.
Police
station
Kotwali,
District
Auraiya.
13.
175 of
1989

u/s 395 &
397
IPC
converted
into
147,
148, 149 and
323 IPC.
Police
station
Kotwali,
District
Auraiya.

14.
24
of
1986

u/s 395 &
397
IPC
converted
into 323 and
504 IPC.
Police
station
Kotwali,
District
Auraiya.
15.
11
of
1984

u/s 147, 148,
149,
323,
506 IPC.
Police
station
Auraiya,
District
Auraiya.
16.
30
of
2004

u/s 147, 148,
149,
307,
436,
323,
353,
332,
341,
435
IPC
and
section
7
Criminal
Law
Amendment
Act & 3/6 of
Prevention
of Damages
to
Public
Property
Act.
Police
station
Kotwali,
District
Auraiya.

17.
338 of
2003

u/s 405, 406,
420,
109,
120-B IPC.
Police
station
Kotwali,
District
Auraiya.
18.
337 of
2003
u/s 405, 406,
420,
109,
120-B IPC.
Police
station
Kotwali,
District
Auraiya
19.
336 of
2003
u/s 405, 406,
420,
109,
120-B IPC.
Police
station
Kotwali,
District
Auraiya
20.
8
of
2002

u/s 147, 148,
149,
323,
504 IPC.
Police
station
Mangaipu
r, District
Kanpur
Dehat.
21.
63
of
1989

u/s 188 IPC.

Police
station
Kotwali,
District
Auraiya.
22.
23
of
2009

u/s 2/3 (1) of
UP Gangster
Act.
Police
station
Kotwali,
District
Auraiya.
23.
487 of
2008

u/s 147, 148,
149,
307,
436,
336,
323,
353
IPC
&
section
7
Criminal
Law
Amendment
Act
and
section
3/6
of
Prevention
of Damages
Police
station
Kotwali,
District
Auraiya.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
of
Public
Property
Act.
24.
487-A
of 2008

u/s 147, 148,
149,
307,
436,
336,
323,
353
IPC
&
section
7
Criminal
Law
Amendment
Act
and
section
3/6
of
Prevention
of Damages
of
Public
Property
Act.
Police
station
Kotwali,
District
Auraiya.

25.
97
of
2001

u/s 323, 504,
506 IPC and
section 7 of
Criminal
Law
Amendment
Act.
Police
station
Kotwali
Auraiya,
District
Auraiya

26.
330 of
1993
u/s 224 and
225 IPC.
Police
station
Kotwali,
District
Etawah.
27.
30-E of
2004

u/s 147, 323,
504,
506,
427,
436
IPC.
Police
station
Kotwali,
District
Auraiya.
28.
30-C of
2004

u/s 147, 336,
504 IPC.
Police
station
Auraiya,
District
Auraiya.
29.
52
of
1986

121, 128 of
Railway
Act.
P.S. GRP
Auraiya,
District
Etawah

30.
621 of
1999

u/s 25 (1)
(B) of Arms
Act.
P.S.
Kotwali,
District
Auraiya

31.
Arising
out
of
case
crime
No. 25
of 2009
3 (2) of the
National
Security
Act.

P.S.
Kotwali,
District
Auraiya

32.
Arising
out
of
case
crime
No. 189
of 2020
3 (2) of the
National
Security
Act.

P.
S.
Auraiya,
District
Auraiya.

33.
01
of
2009
3
UP
Goondas Act
P.S.
Auraiya,
District
Auraiya

34.
ST No.
81
of
2021,
(State
vs.
Kamles
h
Pathak
and
Others)
arising
out
with
case
crime
no. 189
of
2020.
147,
148,
149,
302,
307,
506
IPC
and
section 7 of
Criminal
Law
Amendment
Act.

P.S.
Auraiya,
District
Auraiya

35.
ST
NO.83
OF
25/27 Arms
Act.

P.S.
Auraiya,
District
3 All. Kamlesh Pathak Vs. State of U.P.
1235
2021,
(State
vs.
Kamles
h
Pathak
)
arising
out
with
case
crime
no. 190
of
2020.
Auraiya

36.
ST NO.
82
of
2021,
(State
vs.
Kamles
h
Pathak
and
Others)
arising
out
with
case
crime
no. 196
of
2020.
147,
148,
149,
353,
307 IPC and
section
7
Criminal
Law
Amendment
Act.

P.S.
Auraiya,
District
Auraiya.

37.
Case
Crime
no. 462
of 2020
(presen
t case)

under
Section 3(1)
of
U.P.
Gangster
and
AntiSocial
Activities
(Prevention)
Act
P.S.
Auraiya,
District
Auraiya.

Explaining the above criminal history
of the applicant, it is further pointed out
that:-

i- In 08 criminal cases mentioned
in the above chart from serial no. 01 to 08,
applicant has been acquitted.

ii- In 13 criminal cases mentioned
in the above chart from serial no. 09 to 21,
closer reports have been submitted.

iii- Total 7 criminal cases against
the applicant mentioned in the above chart
from serial no. 22 to 28 have been
withdrawn by the State of U.P.

iv- In 2 criminal cases mentioned
in the above chart from serial no. 29 and
30, applicant did not receive any notice or
summon.

v-
Two
cases
against
the
applicant mentioned in the above chart at
serial nos. 31 and 32 were related to
preventive in nature under Section 3 (2) of
the National Security Act.

vi- One case against the applicant
mentioned in the above chart at serial no.
33 has been decided.

vii-
In
four
criminal
cases
mentioned in the above chart from serial
no. 34 to 37, applicant is facing trial.

4- On the other hand, learned
Additional Government Advocate for the
State as well as Mr. Anil Tiwari, learned
Senior Counsel appearing on behalf of
complainant in above noted double murder
case vehemently opposed the prayer for
bail of the applicant by contending that in
Case Crime No. 189 of 2020, under
Sections 147, 148, 149, 302, 307, 506
I.P.C. and Section 7 of Criminal Law
Amendment Act, Police Station Kotwali
Auraiya, District Auraiya, the applicant has
been granted bail by the coordinate Bench
of this Court vide order dated 13.04.2022
passed in Criminal Misc. Bail Application
No.
46390
of
2020,
against
which
complainant has preferred SLP (Cri.) No.
004386 of 2022 before Hon'ble the Apex
Court, in which notice has been issued to
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicant vide order dated 02.05.2022.
The State of U.P. has also preferred SLP
(Cri.) No. 006080 of 2022. Much emphasis
has been given by contending that the
influence of the applicant is evident from
the record that in thirteen criminal cases
closure report has been filed by the police
which include
heinous
offences like
attempt to murder, attempt to dacoity and
forgery etc., therefore in case bail is
granted to the applicant in the instant case,
the possibility of tampering the witnesses
and evidence adopting different modus
operandi cannot be ruled out. Lastly it is
submitted that applicant and his associates /
gang members are habitual to commit
crime of different nature adopting different
modus operandi, hence considering the
nature of crime and gravity of offence, bail
application of the applicant is liable to be
rejected.

5- Having heard learned counsel for
the parties and examined the matter in its
entirety, I find that it is not in dispute that
applicant is having long criminal history as
noted above. In the SLP (Cri.) No. 004386
of 2022 filed by the complainant and SLP
(Cri.) No. 006080 of 2022 filed by the State
against the order dated 13.04.2022 granting
bail to the applicant in above noted Case
Crime No. 189 of 2020, notice has been
issued by the Hon'ble Supreme Court and
the same are still pending before the
Hon'ble
Supreme
Court.
At
present
following four cases are pending against
the applicant in the Court of Special Court
MP/MLA, District Auraiya. Present status
of the same are as under:-

(i) Session Trial No. 81 of 2021
arising out of Case Crime No. 189 of 2020,
under Sections 147, 148, 149, 302, 307,
506 I.P.C. and Section 7 of Criminal Law
(Amendment) Act, Police Station Auraiya,
District Auraiya, in which out of 17
prosecution witnesses, statements of 12
prosecution witnesses have been recorded
before the trial court.

(ii) Session Trial No. 82 of 2021
arising out of Case Crime No. 196 of 2020
under Sections 147, 148, 149, 353, 307
I.P.C. and Section 7 of Criminal Law
(Amendment) Act, Police Station Auraiya,
District Auraiya, in which out of 15
prosecution witnesses, statements of 09
prosecution witnesses have been recorded
before the trial court.

(iiI) Session Trial No. 83 of 2021
arising out of Case Crime No. 189 of 2020,
under Sections 25,30 and 27 Arms Act,
Police Station Kotwali, Auraiya, District
Auraiya, in which out of 16 prosecution
witnesses, statements of 03 prosecution
witnesses have been recorded before the
trial court.

(iv) GST No. 352 of 2021(present
case) arising out of Case Crime No. 462 of
2020 under Section 3(1) of U.P. Gangster
and Anti-Social Activities (Prevention)
Act, Police Station Auraiya, DistrictAuraiya, in which out of 16 prosecution
witnesses of charge sheet, statements of 6
prosecution witnesses have been recorded
before the trial court.

6- It is well settled that criminal
history of the accused is also one of the
relevant factor while considering bail
application. In this regard, it is relevant to
refer following judgments of the Apex
Court.

6.1- Hon'ble Apex Court in the case
of Neeru Yadav Vs. State of U.P. (2015)3
SCC 527, after referring a catena of
judgments of Hon'ble Supreme Court on
the consideration of factors for grant of
bail, held as under:

"This being the position of law, it
is clear as cloudless sky that the High Court
3 All. Kamlesh Pathak Vs. State of U.P.
1237
has totally ignored the criminal antecedent
of the accused. What has weighed with the
High Court is the doctrine of parity. A
history sheeter involved in the nature of
crimes which we have reproduced herein
above, are not minor offences so that he is
not to be retained in custody, but the crimes
are of heinous nature and such crimes, by
no stretch of imagination can be regarded
as jejune. Such cases do create a thunder
and lightening having the effect potentiality
of torrential rain in an analytical mind. The
law expects the judiciary to be alert while
admitting these kind of accused persons to
be at large and, therefore, the emphasis is
on exercise of discretion judiciously and
not in a whimsical manner."

6.2- The aforesaid judgement has
further been followed by the Apex Court in
the case of Sudha Singh Vs. State of U.P.
and another, 2021(4) SCC 781 and
Indresh Kumar Vs. State of U.P. and
another, 2022 Live law (SC) 610.

6.3- In Sudha Singh (Supra) the
Court held as under:

We find in this case that the high
court has overlooked several aspects, such
as the potential threat to witnesses, forcing
the trial court to grant protection. It is
needless to point out that in cases of this
nature, it is important that courts do not
enlarge an accused on bail with a blinkered
vision by just taking into account only the
parties before them and the incident in
question. It is necessary for courts to
consider the impact that release of such
persons on bail will have on the witnesses
yet to be examined and the innocent
members of the family of the victim who
might be the next victims.

6.4- In Indresh Kumar (Supra) the
Hon'ble Supreme Court held that "as
argued on behalf of the appellant, the High
Court
has,
apparently
ignored
the
criminal antecedents of the respondentaccused. The respondent-accused has the
criminal history of seven cases.

The Court further held as under:

"If the High Court had seriously
considered the gravity of the offence, there
would have been some indication of what
was
the
apparently
extenuating
circumstance,
which
entitled
the
respondent-accused to bail. Ex facie, the
allegations are grave, the punishment is
severe and it cannot be said that there are
no materials on record at all."

7- Here it would also be apposite to
quote the provisions of Section 19 (4) and
(5) of U.P. Gangster and Anti-Social
Activities (Prevention) Act, because the
same is an additional condition for
considering bail under the above mentioned
Gangster Act, 1986, which are as under:-

Section 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
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
offence and that he is not likely to commit
any offence while on bail.

(5) The limitations on granting of
bail specified in sub-section (4) are in
addition to the limitations under the Code.

08- In the light of above
mentioned provisions, it is clear that the
provisions provided in Section 19 (4) (b) of
the
U.P.
Gangster
and
Anti-Social
Activities (Prevention) Act, 1986, is
mandatory in nature for considering the
bail application under the said Act, wherein
it has been provided that an accused of an
offence punishable under U.P. Gangster
and Anti-Social Activities (Prevention)
Act, can be released on bail if the Court
hearing bail application 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.

09- I also find that it is not in dispute
that the applicant has a long criminal
history of 37 cases behind him since 1974.
The courts while releasing the accusedapplicant on bail imposed one of the
conditions in most of the bail orders that
applicant will not further indulge in
criminal activity, but it appears that in the
eyes
of
the
accused-applicant,
such
condition / direction is nothing but a mere
formality, whereas said condition is also
one of the criteria for considering bail in
subsequent crime of the accused. Year wise
break up of the criminal cases registered
against the applicant are as follows:-

In the year 1974....... 2 cases,

In the year 1983....... 1 case,

In the year 1984........ 4 cases,

In the year 1985....... 1 case

In the year 1986....... 2 cases

In the year 1989....... 4 cases

In the year 1991....... 1 case

In the year 1993....... 1 case

In the year 1999....... 1 case

In the year 2001....... 1 case

In the year 2002....... 1 case

In the year 2003....... 3 cases

In the year 2004....... 3 cases

In the year 2005 .........1 case

In the year 2007....... 1 case

In the year 2008....... 2 cases

In the year 2009....... 3 cases

In the year 2020....... 4 cases

10- This Court is of the view that
those who are protector of the society being
MP/MLA/MLC carry a big responsibility
on their shoulders towards the public and
they are not expected to commit crime or
indulge in criminal activities causing dent
to the healthy society in any manner. The
higher is the position, the grater is the
responsibility towards the society at large.
Taking into consideration the long criminal
history of the applicant, other attending
factors, surrounding circumstance of the
case as well as possibility of tampering the
witnesses and misuse of liberty, I do not
find reasonable or good ground for
believing to record my satisfaction in terms
of provisions of Section 19 (4) (b) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, that the applicant is not
guilty of offence and will not further
indulge in any criminal activity while being
released on bail.

11- So far as submission on behalf of
the applicant that the applicant has been
granted bail in all the cases mentioned in
gang chart and therefore he is liable to be
granted bail in this case also is concerned,
the same is not acceptable, because the
offence punishable under Section 3 of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act is an independent offence.
3 All. Kamlesh Pathak Vs. State of U.P.
1239
Involvement of the accused in various other
offences, in fact, constitute circumstances
and evidence against him which may
indicate that the accused is member or
leader or organiser of a group which
indulges in the kind of activities set out
under the Gangster Act. The gravity of an
offence under Section 3 of the U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act may vary from case to
case, therefore no universal rule can be
framed to grant bail to the accused for the
offence under Gangster Act.

12- The another submission on behalf
of the applicant that one co-accused has
been granted bail, therefore applicant is
also entitled for bail on the ground of parity
is concerned, I find that bail to the coaccused-Avanish has been granted without
considering
the
mandatory
provisions
contained under Section 19 (4) (b) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act and considering the
judgement in the case of Dataram Singh
Vs. State of U.P. and another, (2018)3
SCC 22, which is not applicable to the fact
of the present case in the light of the
judgement of Hon'ble Supreme Court in the
case of Indresh Kumar Vs. The State of
Uttar Pradesh, 2022 Live Law (SC) 610,
therefore the bail order dated 18.8.2022
passed in Criminal Miscellaneous Bail
Application No. 35331 of 2022 of coaccused Avanish is not helpful to the
applicant.

13- In Deepak Yadav Vs State of
U.P. and another, (2022) 8 SCC 559, bail
granted by the Allahabad High Court to the
accused in a murder case only on the basis
of parity, has been cancelled by the Hon'ble
Apex Court by observing that the High
Court should have considered factors such
as criminal background of the accused and
nature of the offence, etc. Hon'ble Supreme
Court considering pleuthera of judgements
on the guiding principle for adjudicating a
regular bail held as under:

26. "The importance of assigning
reasoning for grant or denial of bail can
never be undermined. There is prima facie
need to indicate reasons particularly in
cases of grant or denial of bail where the
accused is charged with a serious offence.
The sound reasoning in a particular case is
a reassurance that discretion has been
exercised by the decision maker after
considering all the relevant grounds and by
disregarding extraneous considerations."

" xxxxxxxxxxxxxxxxxxx"

"39. Grant of bail to the
Respondent No. 2/accused only on the
basis of parity shows that the impugned
order passed by the High Court suffers
from the vice of non-application of mind
rendering it unsustainable. The High
Court has not taken into consideration the
criminal history of the respondent No.
2/accused, nature of crime, material
evidences available , involvement of
respondent No. 2/accused in the said crime
and
recovery
of
weapon
from
his
possession."

14- This Court is also of the view
that further detail discussion relating to the
incident and merit of the case need not be
referred to herein since the allegations and
the defence thereto is still open to be urged
by the parties in the trial Court.

15- Considering the criminal history
of the applicant, overall facts and other
attending circumstances of the case as well
as keeping in view the submissions
advanced on behalf of parties, gravity of
offence, role assigned to applicant, severity
of punishment, possibility of tampering the
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence and stage of the trial of the
applicant as noted above, I do not find any
good ground to release the applicant on
bail.

16- Accordingly, the bail application
of applicant is rejected.

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 Vs.
State of U.P. and another, (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.

19- In the matter of MPs and MLAs
directions have also been issued by the
Hon'ble Supreme Court for expeditious
disposal of cases. Accordingly trial Court is
directed to conclude the trial of the
applicant expeditiously in accordance with
provisions of Section 309 Cr.P.C. without
granting any adjournment to either of the
parties
taking
into
consideration
the
provisions of Section 12 of U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986.

20- It is made clear that the
observations contained in the instant order
is confined to the issue of bail and shall not
affect the merit of the trial.
----------
(2024) 3 ILRA 1240
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 55042 of 2023

Shahzan ...Applicant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Ms. Shivangi Singh, Sri Mohd. Afzal

Counsel for the Opp. Party:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Sections 226, 309, 439 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302 & 506 - Criminal Law Amendment
Act - Section 7 - Bail Application - Murder Case
- Trial Delays - Mandatory Compliance with
Section 226 Cr.P.C. and Rule 35 General Rules
(Criminal)
The applicant, Shahzan, sought bail in Case
Crime No. 34 of 2021 under Sections 147, 148,
149, 302, 506 IPC and Section 7 of the Criminal
Law Amendment Act, Police Station Haldaur,
District Bijnor, for allegedly shooting and killing
the deceased, as corroborated by eyewitnesses
and the postmortem report. The applicant, in
jail since 06.02.2021, had his bail rejected by
the trial court on 29.06.2022. The prosecution's
case was supported by evidence of multiple
bullet injuries. Held: The court, without delving
into the merits, rejected the bail application due