# Kamlesh Pathak v. State of U.P

- **Citation:** (2023) 3 ILRA 1105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-23
- **Case number:** Criminal Misc. Bail Application No. 21738 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-pathak-v-state-of-u-p-49781
- **Pages:** 7

## Headnote

Law
-
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 3(1), 16,
17 and 22 - Predicate offence - 'actus
reus' - 'mens rea' - actus reus and the
mens rea are to be inferred from the
contents of the allegations made by the
prosecution whereby the applicant is
stated to be having criminal antecedents -
With respect to a gangster, an inference
can be drawn from the circumstances.
(Para - 22)

Applicant and his gang members - caused day
light murder of advocate and his sister - two
other persons were injured - took illegal
possession of land - public terrified of them -
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
interest of the public to book them under the
U.P. Gangsters Act - gang chart was prepared -
sent for sanction to the District Magistrate .
(Para - 6)

HELD:-In predicate offence, the applicant is
stated to have exhorted the other co-accused
persons to fire at the deceased and injured
persons. Element of actus reus and mens rea
present. No reasonable grounds for believing
that the applicant is not guilty of such offence
and that he is not likely to commit any
offence while on bail as is the requirement of
Section 19(4) of the Act. Applicant having
large criminal antecedents and being the head
of the gang is not entitled for bail. (Para -
22, 25, 26)

Bail Application rejected. (E-7)

List of Cases cited:

## Text

3 All. Kamlesh Pathak Vs. State of U.P.
1105

(xii). The applicant has explained
his criminal history. It is also contended
that evidently the applicant is a soft target
and a convenient scapegoat for the police
authorities.
The
applicant
has
been
nominated in the said cases only to show
the proficiency of the police investigators.
The said criminal cases do not have any
bearing on the instant bail application.

29. In this wake without expressing
any opinion on the merits of the case I am
of the view that the applicant is entitled
to be enlarged on bail.

30. Let the applicant- Maneesh
Pathak be released on bail in the
aforesaid
case
crime
number,
on
furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any
witness during the trial.

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

31. The learned trial court shall
ensure that the sureties demanded of the
applicant are commensurate with his
socioeconomic status. Heavy sureties
which the applicant can not fulfill in view
of his socioeconomic constraints will
render the right of bail nugatory.

32. High Court Legal Services
Authority shall kindly consider the
payment of the approved remuneration to
Shri Omar Zamin, Advocate (Adv. Roll
A/O0083/2012)
who
represented
the
applicant as amicus curiae before this
Court.

33. A copy of this order be
communicated to the learned trial court as
well as District Legal Services Authority,
Azamgarh, by Registrar Compliance by
FAX.
----------
(2023) 3 ILRA 1105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 21738 of
2022

Kamlesh Pathak ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Umesh Singh, Mrs. Swati Agarwal
Srivastava, Sri V.P. Srivastava (Sn. Adv.)

Counsel for the Opposite Party:
G.A., Sri Anurag Shukla, Sri Dharmendra
Shukla, Sri Anil Tiwari (Sn. Adv.)

(A)
Criminal
Law
-
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 3(1), 16,
17 and 22 - Predicate offence - 'actus
reus' - 'mens rea' - actus reus and the
mens rea are to be inferred from the
contents of the allegations made by the
prosecution whereby the applicant is
stated to be having criminal antecedents -
With respect to a gangster, an inference
can be drawn from the circumstances.
(Para - 22)

Applicant and his gang members - caused day
light murder of advocate and his sister - two
other persons were injured - took illegal
possession of land - public terrified of them -
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
interest of the public to book them under the
U.P. Gangsters Act - gang chart was prepared -
sent for sanction to the District Magistrate .
(Para - 6)

HELD:-In predicate offence, the applicant is
stated to have exhorted the other co-accused
persons to fire at the deceased and injured
persons. Element of actus reus and mens rea
present. No reasonable grounds for believing
that the applicant is not guilty of such offence
and that he is not likely to commit any
offence while on bail as is the requirement of
Section 19(4) of the Act. Applicant having
large criminal antecedents and being the head
of the gang is not entitled for bail. (Para -
22, 25, 26)

Bail Application rejected. (E-7)

List of Cases cited:

1. Akbar Vs St. of U.P. , 2012 (76) ACC 187

2. Ashok Dixit Vs St. of U.P. & anr. ,
MANU/UP/0543/1987

3. Dharmendra Kirthal Vs St. of U.P. & anr.
(2013) 8 SCC 368

4. Zeba Rizwan Vs St. of U.P. , Crl. Misc. Bail
Appl. No.4691 of 2022

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

1. List has been revised.

2. Supplementary affidavit filed today
is taken on record.

3. Heard Shri V.P. Srivastava, learned
Senior Counsel assisted by Ms. Swati
Agrawal Srivastava, counsel for the applicant
and Shri Anil Tiwari, learned Senior Counsel
assisted by Shri Anurag Shukla, counsel for
the informant as well as Shri Vibhav Anand
Singh, learned A.G.A. for the State.

4. By means of the present bail
application, the applicant seeks bail in Case
Crime No.462 of 2020, under Section 3(1)
of Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986, Police
Station- Auraiya, District- Auraiya, during
the pendency of trial.

PROSECUTION STORY:

5. As per prosecution story, Ram
Sahai, Station House Officer, P.S. Auraiya,
District
Auraiya
alongwith
other
colleagues, in an official duty, was
checking the vehicles and was involved in
maintaining peace and order in the area and
also to maintain lock-down in lieu of
Covid-19 conditions by the order dated
11.07.2020 of District Magistrate. He
received an information that Kamlesh
Pathak is running an organized and active
gang in the area as its' leader. The members
of the said gang are (i) Ramu Pathak (ii),
Santosh Pathak, (iii) Kuldeep Awasthi @
Pappu, (iv) Vikalp @ Chenu Awasthi, (v)
Rajesh Shukla (Bhagwatacharya), (vi)
Avneesh Pratap Singh, (vii) Sonu @
Lovkush, (viii) Asheesh Dubey, (ix)
Shivam Awasthi and (x) Ravindra @ Lalla
Chaubey. The said leader of the gang
Kamlesh Pathak alongwith all the aforesaid
members is involved in garnering illegal
ransom, illegally possessing government
land, fighting, firing and other illegal
criminal activities etc. The applicant and
his gang is not afraid of firing in broad day
light. The members of the gang had got the
various cases instituted against them settled
in the light of the said terror. Nobody dares
to depose on oath in court against them
whereby all those cases get culminated into
acquittals.

6. On 15.03.2020, Kamlesh Pathak
and his gang members had caused day light
murder of advocate Manju Chaubey and his
sister Sudha Chaubey to take illegal
3 All. Kamlesh Pathak Vs. State of U.P.
1107
possession of land. The public at large are
so much terrified of the members of the
gang that nobody dares to come forward
and speak or make a statement against
them. Leaving them free, shall be against
the interest of the public at large. The
members of the gang keep on committing
the offences referred in Sections 16, 17 and
22 of the U.P. Gangsters and Anti-Social
Activities (Prevention) Act. Thus they
usurped the properties of others and even
get instituted false cases against them. It
will be in the interest of public at large to
book the members of the gang under the
U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986. Thus, in view to
put an end to the said anti-social activities
of the gang, a gang chart has been prepared
by him on 26.02.2020, which was sent for
the sanction before the learned District
Magistrate, Auraiya. After receiving the
sanction from the office of the District
Magistrate, Auraiya, the aforesaid eleven
members of the gang were booked under
Section 3(1) of U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986.

RIVAL CONTENTIONS:

For Applicant:

7. Learned Senior Counsel for the
applicant has stated that he has been
booked owing to the political rivalry and
has nothing to do with the said offence.
Learned Senior Counsel has further stated
that the applicant has been granted bail in
the predicate offence in Case Crime
Number 189 of 2020 under sections 147,
148, 149, 302, 307, 506 IPC and Section 7
of Criminal Law Amendment Act, Police
Station Kotwali Auraiya, District Auraiya.
Learned Senior Counsel has further stated
that the bail of the applicant has even been
rejected under Section 25/27 of Arms Act
by the court concerned in Case Crime No.
190 of 2022.

8. Learned Senior Counsel has further
stated that the said criminal history stands
explained as the applicant is on bail in the
case no.1 mentioned in the gang-chat and
the bail application in the case No.2
mentioned in the gang-charge i.e. Case
Crime No.190 of 2022 is being pressed
alongwith
this
bail
application
only.
Learned Senior Counsel has further stated
that all the certified copies with respect to
the criminal antecedents have been filed. In
all, 37 cases have been instituted against
the applicant. Learned Senior Counsel has
further stated that, as mentioned in
paragraph 3 of the supplementary affidavit
filed today, the closure report has been
filed in twelve cases from serial number 3
to 14 and the same have been accepted by
the courts concerned.

9. Learned Senior Counsel has further
stated that the applicant has been acquitted
in sixteen cases i.e. from serial number 15
to 30. Three cases, that have been
explained at serial number 31 to 33, have
been withdrawn by the State. Learned
Senior Counsel has further stated that the
two cases, mentioned at serial number 34
and 35, are not proceeding any further as
there is no detail on record about those
cases and in two other cases, mentioned at
serial number 36 and 37, the applicant has
been enlarged on bail. Learned Senior
Counsel has further stated that thus in
effect only four cases could be stated to be
pending against the applicant. Learned
Senior Counsel has also referred to the
letter sent by the Senior Consultant at
Centre
jail,
Agra
to
the
Senior
Superintendent of jail whereby it has been
mentioned that the applicant was suffering
from K/C/O T2 DM (Type-2 Diabetes
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
mellitus) with systemic hypertension with
anxiety neurosis. Learned Senior Counsel
has further stated that the applicant was
sent to the S.N. medical College, Agra
where several tests were undertaken and
then he was referred to King George's
Medical College, Lucknow whereby he
was examined and his E.C.G., 2D Eco and
T.M.T. tests were undertaken and C.T.
coronary angiography was referred to be
conducted with respect to the applicant.
Learned Senior Counsel has further stated
that the applicant is a patient suffering from
cardio vascular disease and being a senior
citizen is entitled for bail.

10. Learned Senior Counsel has
further stated that he has been booked out
of political vendetta as he is an ex-MLA
and
ex-minister
belonging
to
the
Samajwadi Party and is against the current
political set up.

11. Learned Senior Counsel has
further stated there is no actus reus, which
implies the guilty act, assigned to the
applicant. Learned Senior Counsel has
further stated that the rules have been
framed in Uttar Pradesh Gangsters and
Anti-Social Activities (Prevention) Act in
the year 2021 and the present FIR is of the
year 2020, as such the said rules are not
applicable to the applicant. Learned Senior
Counsel has further stated that the applicant
is not a previous convict. The ingredients
of Section 19 sub-clause 4 stands fulfilled
and the applicant is entitled for bail.
Several other submissions have been made
on behalf of the applicant to demonstrate
the falsity of the allegations made against
him. The circumstances which, as per
counsel, led to the false implication of the
applicant have also been touched upon at
length. The criminal history assigned to the
applicant stands explained. The applicant is
languishing in jail since 16.03.2020. In
case, the applicant is released on bail, he
will not misuse the liberty of bail.

12. Learned Senior Counsel has
placed much reliance on the judgment of
this Court passed in the case of Akbar vs.
State of U.P.1, whereby it has been opined
that at the time of trial if the delinquent has
been acquitted, the same cannot be
considered as a part of his criminal
antecedents. To which, he has referred the
Government Order of the Director General
of Police, Uttar Pradesh dated 20.11.2003.

13. Learned Senior Counsel has
further placed much reliance on the
judgment of this Court passed in the case of
Ashok Dixit vs. state of U.P. and
Another2, stating that the provisions of the
Act cannot be used as a weapon to wreck
vengeance or harass or intimidate innocent
citizens or to settle scores on political
rivals. The relevant para 75 is being
reproduced as under:-

"75. But nevertheless we must
sound a note of caution. Provision of the
Act cannot be used as a weapon to wreak
vengeance or harass or intimidate innocent
citizens or to settle scores on political or
other fronts. The prosecution has to bear in
mind that it has to bring home the guilt.
Then, there is a further provision for
appeal. Thus, the power of judicial review
of this Court has been preserved. It is
ultimately found that a person was
proceeded with in sheer bad faith out of
malice and by way of political vendetta the
authorities do not enjoy any immunity
under Section 22 of the Act. This immunity
is confined only to acts done in good faith."

14. Learned Senior Counsel has also
placed much reliance on the judgment of
3 All. Kamlesh Pathak Vs. State of U.P.
1109
Apex Court passed in the case of
Dharmendra Kirthal vs. State of U.P. and
Another3, whereby it has been opined that
personal liberty has its own glory and is to
be put on a pedestal in trial to try offenders,
it is controlled by the concept of "rational
liberty". In essence, liberty of an individual
should not be allowed to be eroded but
every individual has an obligation to see
that he does not violate the laws of the land
or affect others' lawful liberty to lose his
own.

15. Learned Senior Counsel has also
placed reliance on the judgment of this
Court passed in Criminal Misc. Bail
Application No.4691 of 2022 (Zeba
Rizwan
vs.
State
of
U.P.)
dated
23.05.2022, whereby the locus of the
counsel for the victim in the predicate
offence was questioned and it was opined
that allowing him to argue the matter shall
open a pandora's box.

For State:

16. Per contra, learned Senior
Counsel for the informant in the predicate
offence
and
learned
A.G.A.
have
vehemently opposed the bail application on
the ground that the applicant is the person
who very much qualifies to the definition
of gangster defined under the Act and it has
been at the outset stated that the bail
granted to the applicant in the predicate
offence of Section 302 IPC is without
jurisdiction and has been challenged in the
Apex Court by filing Special Leave to
Appeal (crl.) No(s). 6080 of 2022 dated
13.04.2022.

17. Learned Senior Counsel has
further stated that the applicant is the name
of terror in the area and his muscle power is
but evident from the fact that no witnesses
did ever dare to depose against him in court
and almost all of them have turned hostile
leading to his acquittal.

18. Learned Senior Counsel has
further stated that the predicate offence is a
broad day light murder of an advocate and
his sister at 3:00 PM and two other persons
were injured in it. The bail granted is
challenged, as such the applicant is not
entitled for bail. Learned Senior Counsel
has further stated that the influence of the
applicant is but evident from the factum
that the closure report has been filed in
twelve cases by the police which include
attempt to murder, forgery and attempt to
dacoity etc.

19. Learned Senior Counsel has
further stated that the supplementary
affidavit filed today on behalf of the
applicant is based on false facts and a
perjury has been committed in it as the
cases referred as acquittal cases in it at
serial nos.25, 26 and 29 have been
withdrawn, as such may have been listed
in the column of withdrawn State cases.
Thus, in all six cases have been
withdrawn by the State. The trial is going
on in the predicate offence and there is
every likelihood of applicant influencing
the witnesses as he has the long criminal
antecedents.

20. Learned Senior Counsel has
further stated that even the criminal history
of two cases has not been explained
whereby it has been stated that the cases
are not proceedings any further. This
cannot
be
considered
as
a
proper
explanation of the said criminal history.
The bail of the applicant in Case Crime
No.190 of 2020, under Section 25/27 of
Arms Act is still pending and is being
argued today in this Court.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Learned Senior Counsel has
further placed much reliance on the
judgment of this Court passed in Criminal
Misc. Bail Application No.23584 of 2014
(Rohit @ Rohit Yadav vs. State of U.P.)
dated 06.08.2014, whereby the counsel for
the informant in the predicate offence was
permitted to oppose the bail application.

CONCLUSION:

22. The latin term ''actus reus'
implies guilty act. Thus, it is the
physical component of crime. It is true
that there can be no offence without a
criminal act. We have to consider mens
rea alongwith actus reus. Actus reus is
latin for guilty act and mens rea is latin
for guilty mind. Both elements are
required for the criminal act to be
complete. The actus reus and the mens
rea are to be inferred from the contents
of
the
allegations
made
by
the
prosecution whereby the applicant is
stated to be having criminal antecedents
and in the said predicate offence, the
applicant is stated to have exhorted the
other co-accused persons to fire at the
deceased and injured persons. Thus, the
element of actus reus and mens rea are
present in the said case and being a
leader of the gang, the same find place
in the present case also.

23. With respect to a gangster, an
inference
can
be
drawn
from
the
circumstances. The delinquent herein is a
legislature aka an Ex-minister, but the
same cannot absolve him of the activities
committed impersonal.

24. It is true that under normal
circumstances, if otherwise the case of
the delinquent for bail is made out, the
criminal antecedents are not to be
considered, but herein the gravity of
offence and the criminal antecedents that
too the cases of murder, attempt to
murder, attempt to dacoity and forgery
etc. weigh against the applicant.

25. It is true that there is a
possibility of misuse of the legislations
that too depends on the person executing
it. The present case does not seem to be a
misuse of the act and the applicant having
such a large criminal antecedents and
being the head of the gang is not entitled
for bail.

26. From the perusal of the record, I
do not find that there are reasonable
grounds for believing that the applicant is
not guilty of such offence and that he is
not likely to commit any offence while on
bail as is the requirement of Section 19(4)
of the Act.

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

28. However, it is directed that the
aforesaid case pending before the trial
court be decided expeditiously, if there is
no legal impediment.

29.

It
is
clarified
that
the
observations made herein are limited to
the facts brought in by the parties
pertaining
to
the
disposal
of
bail
application and the said observations
shall have no bearing on the merits of the
case during trial.
----------
3 All. Anees Vs. State of U.P.
1111
(2023) 3 ILRA 1111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 23624of 2020

Anees ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Syed Ali Imam, Sri Laxmi Shankar, Sri
Mohd. Umar Iqbal Khan

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 323 & 302 - Dowry
prohibition Act,1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 32 -
Dying declaration - dying declaration is
hearsay evidence - dying declaration
entitled to great weight - accused has no
power of cross-examination - declaration
should be of such nature as to inspire
confidence in its correctness, and that it
was not a result of tutoring or prompting
or product of imagination - stage of
adjudicating a bail application - court not
inclined to delve into the quality or
quantity of evidence but to see whether
the delinquent appears to have committed
the crime and he is entitled for bail or not
- neither rule of law nor of prudence that
dying declaration cannot be acted upon
without
corroboration.
(Para
-
17,18,19,26)

victim was a young lady - succumbed to burn
injuries sustained at the time alleged in the
F.I.R. - statements of hostile witnesses and
Autopsy report are evidence of their condition -
Contention - statement of the deceased to the
ASI and the treating doctors must pass the test
of dying declaration or not. (Para - 13 to16)
HELD:- Applicant's case not fit for grant of bail
due to the evidence, judgments, and the fact
that a young lady was set to fire in the precincts
of the place they both used to live. (Para - 27)

Bail Application rejected. (E-7)

List of Cases cited:

1. Uttam Vs The St. of Mah. , (2022) 8 SCC 576

2. U.O.I. Vs K.A. Najeeb , AIR (2021) SC 712

3. Kaka Singh Vs St. of M.P., AIR (1982) SC
1021

4. Smt. Paniben Vs St. of Guj. , AIR (1992) SC
1817

5. Varikuppal Srinivas Vs St. of A.P. , (2009) 2
SCC (Cri) 136

6. Munnu Raja & anr. Vs The St. of M.P. ,
(1976) 2 SCR 764

7. K. Ramachandra Reddy & anr. Vs The Public
Prosecutor , AIR (1976) SC 1994

8. Surajdeo Oza & ors. Vs St. of Bihar , AIR
(1979) SC 1505

9. St. Of U.P. Vs Madan Mohan & ors., Air
(1989) Sc 1519

10. Betal Singh Vs St. of M.P. , 1996 Scc (Cri)
624

11. Paras Yadav & ors. Vs St. Of Bihar , (1999)
Scc (Cri) 104

12. St. Of U.P. Vs Chet Ram & ors. , (1989) Scc
(Cri) 388

13. St. Of Karn. Vs Shariff , 2003 Crlj 1254 (SC)

14. Vinod Kumar Vs St. of Punj. , 2015 (2) SCC
220

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

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