# Nishant @ Nishu v. State of U.P. Opp. Party

- **Citation:** (2021) 6 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Crl. Misc. Bail Application No 14323 of 2021
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishant-nishu-v-state-of-u-p-opp-party-47015
- **Pages:** 5

## Headnote

Anti-Social Activities (Prevention) Act,
1986

The Court has observed that due to no rules or
procedure for the Act, an incomplete and half
baked gang charts were prepared by the
informants of different applications which were
later
on
mechanically
approved
by
the
responsible higher police authorities of the
district, against that Gang. It is not the
discretion of the prosecution to add or subtract
the number of cases from his gang chart
according to their sweet will and at the time of
consideration of their bail applications, serve out
those cases which are not in the chart. In order
to curb this malpractice, the Court directed to
frame proper Rules of the present enactment
pursuant to the provisions contained in Section
27 of the U.P. Act. (Para 35)

Application Allowed. (E-8)

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
impose upon him. It has also been pointed
out that the accused is not having any
criminal history and he is in jail since
03.02.2021 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

7. Learned A.G.A. opposed the prayer
for bail.

8. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, the unlikelihood of
early conclusion of trial and also the
absence of any convincing material to
indicate the possibility of tampering with
the evidence and larger mandate of the
Article 21 of the Constitution of India and
the law laid down by the Hon'ble Apex
Court in the case of Dataram Singh vs.
State of UP and another, reported in
(2018) 3 SCC 22, this Court is of the view
that the applicant may be enlarged on bail.

9. The prayer for bail is granted. The
application is allowed.

10. Let the applicant Rahul involved
in Case Crime No. 560 of 2019 under
sections 147, 148, 149, 294, 307, 323, 324,
504, 506 I.P.C., police station Deoband,
District Saharanpur be released on bail on
his executing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned on the
following conditions :-

(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.

(3) The applicant shall cooperate in
the trial sincerely without seeking any
adjournment.

(4) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(5)The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(6)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing

11. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

12. It is clarified that the observations, if
any, made in this order are strictly confined to
the disposal of the bail application and must not
be construed to have any reflection on the
ultimate merits of the case.
----------
(2021)06ILR A18
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Crl. Misc. Bail Application No 14323 of 2021
With Crl. Misc. Bail Appl. Nos. 15138 of 2021,
15101 of 2021 & 15110 of 2021
6 All. Nishant @ Nishu Vs. State of U.P.
19
Nishant @ Nishu ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Anil Kumar Shukla

Counsel for the Opp. Party:
A.G.A.

(a) Bail - Gang Chart - U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986

The Court has observed that due to no rules or
procedure for the Act, an incomplete and half
baked gang charts were prepared by the
informants of different applications which were
later
on
mechanically
approved
by
the
responsible higher police authorities of the
district, against that Gang. It is not the
discretion of the prosecution to add or subtract
the number of cases from his gang chart
according to their sweet will and at the time of
consideration of their bail applications, serve out
those cases which are not in the chart. In order
to curb this malpractice, the Court directed to
frame proper Rules of the present enactment
pursuant to the provisions contained in Section
27 of the U.P. Act. (Para 35)

Application Allowed. (E-8)

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] Heard the submissions of respective
learned counsels for the different applicants
of their respective bail applications, learned
A.G.A and perused the records of the case.

[2] Since all these above mentioned bail
applications suffers from same vice of law i.e
'incomplete and defective gang chart' which
does not indicate the accused's complete past
credentials,
giving
ample
room
for
miscarriage
of
justice,
resultantly,
the
accused-applicant tends to be bailed out
easily. Additionally, this court purposes to
decide all the four bail applications on merits
by a common order.

[3] The present order is in two parts, in
the earlier part, all the four bail applications
are decided on merits and in the later part,
there is discussion/judgment on defective
gang-chart and its adverse impact on bail as
well as trial of the accused concern.

Before deciding the cases on merits, it
is imperative to give factual narration of the
issue of the respective bail applications :-

FACTUAL INTRODUCTION OF
BAIL APPLICATIONS:-

[4] Applicant Nishant @ Nishu is
behind the bars since 29.9.2020 in
connection with Case Crime No. 433/2020
U/s 2/3 of U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986 Police
Station Civil Lines, District Muzaffar
Nagar.

[5] Learned Counsel states that the
gang chart annexed as Annexure No. 2 to
the affidavit shows that Usman @ Sheru is
its gang leader and the applicant has been
shown as its active member of that gang.
Only ONE case is shown in the gang chart
to the credit of the applicant at Police
Station Civil Lines, District Muzaffar
Nagar.

[6] On this, it has been contended by
learned counsel that since only one case is
shown in the gang chart, having Case
Crime No. 306/2020 on which the applicant
is on bail. The copy of the bail order is
annexed as Annexure No.3 to the affidavit.
Thus on the above factual premises, it has
been argued that, on account of singular
case in which the applicant has already
been bailed out and have never misused the
liberty of bail. Besides this, it is further
submitted that there is no justifiable reason
for the prosecution to implicate the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant in U.P. Gangsters Act by
imposing stringent condition and branding
the applicant as its gang member. Thus
applicant deserves to be bailed out.

[7] Similarly the accused of Bail
Application No. 15138/2021, is Amit, the
applicant
facing
incarceration
since
16.8.2020 in connection with Case Crime
No. 274/2020 U/s 2/3 of U.P. Gangsters
and Anti-Social Activities (Prevention)
Act, 1986, P.S. Madrak District Aligarh.

[8] Submission advanced by learned
Counsel for the applicant, after drawing
attention of the court, the gang chart
(Annexure No.2) which shows that he is
member of a alleged gang and only TWO
cases are shown in the chart to his credit.
Argued by the counsel for the applicant that
he is enjoying his freedom by way of bail
in both the cases and has never misused the
liberty so granted to him. The bail orders
are annexed as Annexure No.3 to the
affidavit, and thus, submitted that the
applicant deserves to be bailed out in the
instant case too.

[9] In this series, yet another case on
behalf of KASHISH SRIVASTAV, who is
behind the bars since 5.8.2020 in relation to
Case Crime No. 290/2020 U/s 2/3 of U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986, P.S. Cantt, District
Prayagraj (Allahabad). After showing the
gang chart (Annexure No.2), contention
advanced by the learned counsel for the
applicant that only FOUR cases are shown
in the chart. The applicant is on bail in all
the four cases by different courts. Bail
orders are annexed as Annexure No.3 to the
affidavit. Learned Counsel has toed same
lines of arguments as his predecessors and
tried to impress upon the court that the
applicant too is entitled for bail.

[10] Last case in this chain is on
behalf
of
NAUSHAD,
the
accused/applicant,
who
is
facing
prosecution by way of Case Crime No.
590/2020 U/s 2/3 of U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986, P.S. Fatehpur, District Saharanpur.

[11] The gang-chart annexed as
Annexure No.2 to the affidavit clearly
indicates that there are only TWO cases to
the credit of the applicant and on different
occasions in both these cases he was
granted bail. The bail orders are annexed as
Annexure No. 3 and 4 to the affidavit. Thus
argued by the counsel that he has not
misused the liberty of bail and as such, he
is entitled for bail in the instant case too.

[12] Thus from the above, it is clear
that in all the four bail applications, the
gang-chart which were annexed clearly
indicates that less than five cases are to the
credit of respective accused applicants and
in all those cases the applicants were on
bail but the informants of respective FIRs
after clubbing few of the previous cases(not
mentioned in the gang chart) allegedly
branded
the
accused/applicants
as
member/or the leader of a particular gang,
who are indulge in committing heinous
offences, through their illegal organization,
against innocent persons of the society.
They all are as per habit commit serious
and heinous offences of different types and
shades. It has been argued by the learned
counsels for the applicants that informants
of these FIRs are police personnels(mostly
SHOs of the police station), after overstapping their powers vested in them and
with motive to saddle the applicants with
additional criminal liability, have illegally
fasten more stringent prosecution by way
of
U.P.
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986. It is
6 All. Nishant @ Nishu Vs. State of U.P.
21
argued that instant prosecution is nothing
but gross misuse of powers vested in them
(informant), which was later on blindly
supported and approved by the local police
and administrative superior authorities
while approving the gang chart.

[13] Per contra, learned A.G.A.
vehemently opposed the prayer for bail of
the respective accused/applicants, after
putting the record straight. It has been
contended
by
learned
A.G.A.
that
submissions advanced by various counsels
for the applicants are factually incorrect
and wrong. All the applicants are harden
and habitual offenders, involved in an
organized criminal activities posing serious
threat to the society. It has been contended
that :-

(a) The applicant Nishant @ Nishu in
addition to the cases shown in the gang
chart, he has got 15 other cases to his
credit, which is clear from his bail rejection
order. A person who is involved in 15+
cases, deserves no sympathy from the
Court.

(b) The applicant Amit too is involved
in two other cases, in addition to the cases
shown in his gang chart.

(c) Accused Kashish Srivastav, the
third applicant is involved in three other
cases in addition to the cases shown in his
gang chart. Thus in total the number of
cases swelled from four to seven cases.

(d) And at the end, the applicant
Naushad in all, there are EIGHT cases to
his credit, though the gang-chart has shown
only SIX cases.

[14] Indeed, in opinion of the Court, it
is a cabbalistic and mysterious situation
where the applicants at the stage of their
bail before this Court are taken by surprise
by the State. This is beyond the settled
tenets of fair play and equality. No accused
shall be taken by surprise. The Court is
failed to appreciate the alleged impediment
in preparing full and complete gang chart
of that bunch of alleged outlawed persons.
The prosecution has to stick upon the stand
taken by them from the day one.

[15] It is not the discretion of the
prosecution to add or substract the number of
cases from his gang chart according to their
sweet will and at the time of consideration of
their bail applications, serve out those cases
which are not in the chart. The Court is at loss
to appreciate this practice by the prosecution.
Learned A.G.A. too has failed to solve this
puzzle and lift the veil from this uncanny
situation. The Court records its deep anguish,
resentment to such type of hide and seek
practice by none other than the State
(Prosecutor) itself. The Court takes it like that,
the prosecutor are hiding the cards in their
sleeves so as to poison and bias the judicial
mind of the Court against the applicant and
succeeds in getting their bail applications
rejected showing and swelling the number of
cases against the applicant. This is explicitly a
malpractice on the part of the prosecution, who
instead of giving holistic view regarding
criminal antecedents of the concern person, has
given only a piecemeal and incomplete picture
in their respective gang chart. The Court does
not want to become a party to such type of
underhand dealing and short coming on the part
of prosecutor. After assessing the facts of the
case and the antecedents of accused persons,
this court is of the considered opinion that all
the applicants namely; (i)Amit, (ii)Kashish
Srivastav and (iii)Naushad be released on
bail. The bail applications of above named
accused/applicants stands allowed.

[16] Let the applicants, Amit,
Kashish Srivastav and Naushad, who are
involved in the aforesaid sections of U.P.
22 INDIAN LAW REPORTS ALLAHABAD SERIES
Gangsters Act, 1986 be released on bail on
their furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned subject
to following conditions. Further, before
issuing the release order, the sureties be
verified.

(i) THE APPLICANT SHALL FILE
AN UNDERTAKING TO THE EFFECT
THAT SHE SHALL NOT SEEK ANY
ADJOURNMENT ON THE DATE 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.

(ii)
THE
APPLICANT
SHALL
REMAIN
PRESENT
BEFORE
THE
TRIAL
COURT
ON
EACH
DATE
FIXED, EITHER PERSONALLY OR
THROUGH HER COUNSEL. IN CASE
OF
HER
ABSENCE,
WITHOUT
SUFFICIENT
CAUSE,
THE
TRIAL
COURT MAY PROCEED AGAINST
HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT
MISUSES THE LIBERTY OF BAIL
DURING TRIAL AND IN ORDER TO
SECURE
HER
PRESENCE
PROCLAMATION UNDER SECTION 82
CR.P.C., MAY BE ISSUED AND IF
APPLICANT
FAILS
TO
APPEAR
BEFORE THE COURT ON THE DATE
FIXED IN SUCH PROCLAMATION,
THEN, THE TRIAL COURT SHALL
INITIATE PROCEEDINGS AGAINST
HER, IN ACCORDANCE WITH LAW,
UNDER SECTION 174-A IPC.

(iv)
THE
APPLICANT
SHALL
REMAIN
PRESENT,
IN
PERSON,
BEFORE THE TRIAL COURT ON
DATES FIXED FOR (1) OPENING OF
THE CASE, (2) FRAMING OF CHARGE
AND (3) RECORDING OF STATEMENT
UNDER SECTION 313 CR.P.C. IF IN
THE OPINION OF THE TRIAL COURT
ABSENCE OF THE APPLICANT IS
DELIBERATE
OR
WITHOUT
SUFFICIENT CAUSE, THEN IT SHALL
BE OPEN FOR THE TRIAL COURT TO
TREAT SUCH DEFAULT AS ABUSE OF
LIBERTY OF BAIL AND PROCEED
AGAINST
HER
IN
ACCORDANCE
WITH LAW.

(v) THE TRIAL COURT MAY
MAKE
ALL
POSSIBLE
EFFORTS/ENDEAVOUR AND TRY TO
CONCLUDE THE TRIAL WITHIN A
PERIOD OF ONE YEAR AFTER THE
RELEASE OF THE APPLICANT.

In case of breach of any of the above
conditions, it shall be a ground for
cancellation of bail.

It is made clear that observations made
in granting bail to the applicant shall not in
any way affect the learned trial Judge in
forming his independent opinion based on
the testimony of the witnesses.

Since the bail application has been
decided under extra-ordinary circumstances
under prevailing COVID pandemic, thus in
the interest of justice following additional
conditions are being imposed just to
facilitate the applicant to be released on
bail forthwith. Needless to mention that
these additional conditions are imposed to
cope with emergent condition-:

1. The applicant shall be enlarged on
bail on execution of personal bond without
sureties till normal functioning of the
courts is restored. The accused will furnish
sureties to the satisfaction of the court
below within a month after normal
functioning of the courts are restored.