# Zeba Rizwan v. State of U.P

- **Citation:** (2022) 6 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-23
- **Case number:** Criminal Misc. Bail Application No. 4691 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zeba-rizwan-v-state-of-u-p-48622
- **Pages:** 5

## Headnote

A. Criminal Law - U.P. Gangsters and
Anti-Social
Activities
Prevention
Act,1986 - Section 19(4) - The accused
person, who has been prosecuted for
serious offences including murder, attempt
to murder and criminal conspiracy, should
not be granted bail under the U.P. Gangster
and Anti-Social Activities (Prevention) Act,
1986

B. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 2(wa),
24(8), 372 & 301 - The matter in
question is under Section 3(1) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986, and not under the
IPC or any other Special Act and the
complainant of the said case is the S.H.O.
of the police station. So the counsel for the
victim of the predicate offence i.e. FIR No.
002 of 2022 does not come within the
category of "victim" pertaining to the
present case. If the said victims of the
predicate offence are permitted to appear
and oppose the bail applications in the
matters of Gangsters Act, it shall open a
Pandora's box and prove hurdle in proper
disposal of the case.

Application allowed. (E-12)

List of Cases cited:-

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation, if any received by her, in the
appropriate head of the treasury account
and shall also ensure the compliance of
provisions of section 344 Cr.P.C at the
appropriate stage, if it deems fit and proper
under the facts and circumstances of the
case.

13- Office is directed to transmit a
copy of this order to the court concerned
within a week for compliance.
----------
(2022)06ILR A1022
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 4691 of 2022

Zeba Rizwan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Anil Kumar Tripathi, Vivek Pandey

Counsel for the Opposite Party:
G.A., Arvind Kumar Mishra, Mohammad
Airaj Siddiqui, Sharvan Kumar Nayak,
Sushil Kumar Singh, Versha Rani Srivastava

A. Criminal Law - U.P. Gangsters and
Anti-Social
Activities
Prevention
Act,1986 - Section 19(4) - The accused
person, who has been prosecuted for
serious offences including murder, attempt
to murder and criminal conspiracy, should
not be granted bail under the U.P. Gangster
and Anti-Social Activities (Prevention) Act,
1986

B. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 2(wa),
24(8), 372 & 301 - The matter in
question is under Section 3(1) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986, and not under the
IPC or any other Special Act and the
complainant of the said case is the S.H.O.
of the police station. So the counsel for the
victim of the predicate offence i.e. FIR No.
002 of 2022 does not come within the
category of "victim" pertaining to the
present case. If the said victims of the
predicate offence are permitted to appear
and oppose the bail applications in the
matters of Gangsters Act, it shall open a
Pandora's box and prove hurdle in proper
disposal of the case.

Application allowed. (E-12)

List of Cases cited:-

1. Jagjeet Singh & ors. Vs Ashish Mishra @
Monu & anr. 2022(1) BLJ 169

2. Sudha Singh Vs St. of U.P. Criminal Appeal
No. 448/2021

3. Sabir Ali Khan Vs St. of U.P Criminal Misc. Bail
Application No. 18588/2021
(Delivered by Hon'ble Krishan Pahal, J.)

1. Counter Affidavit filed by learned
counsel, Sri Sushil Kumar Singh, is taken
on record.

2. Heard Sri Vivek Pandey, learned
counsel for the applicant, Sri Sushil Kumar
Singh, learned counsel for the victim (in
the case of murder), and learned A.G.A. for
the State and perused the material placed
on record.

3. By means of the present bail
application, the applicant seeks bail in Case
Crime No. 54 of 2022, under Section 3(1)
of U.P. Gangster and Anti-Social Activities
(Prevention) Act, 1986, Police Station-
Tulsipur, District- Balrampur, during the
pendency of trial.

RIVAL CONTENTIONS:-
6 All. Zeba Rizwan Vs. State of U.P.
1023

4. Learned counsel for applicant has
stated that applicant is a lady, aged 28 years
and has her children to tender to. It is
argued by the learned counsel that the
prosecution under the Gangsters Act has
been launched against the applicant on the
basis of one criminal case shown in the
gang chart, in which she has already been
enlarged on bail by this Court on
20.4.2022. The details of criminal case
have been mentioned in paragraph 6 of the
affidavit
accompanying
the
bail
application. In the said criminal case, the
role of the applicant is shown to be of
criminal conspiracy only. She has been
falsely implicated in the present case due to
political rivalry. She is not the member of
any gang. It is further stated that there is no
other criminal history of the applicant. The
applicant is languishing in jail since
10.1.2022. In case, the applicant is released
on bail, she will not misuse the liberty of
bail.

5. Per contra, learned A.G.A. and
learned counsel for the victim, Sri Sushil
Kumar Singh (in the said case of murder in
which applicant is on bail) has vehemently
argued that he has a right to be heard and
he has relied on the judgements of the
Apex Court as well as of this Court,
wherein it has been opined that the bails of
the Gangsters Act should not be leniently
taken up.

6. Learned counsel for the victim of
the predicate offence under Section 302
IPC has placed much reliance on Section
19(4) of the U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986, which
reads as follows :-

"Section-19(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 offence
and that he is not likely to commit any offence
while on bail."

7. Learned counsel has further stated
that the provisions of Clause 19(4) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986 are at par with
Section 37 of the NDPS Act, wherein twin
conditions are in matters of commercial
recovery of contraband.

8. Learned counsel has relied on the
judgment of the Supreme Court passed in
Jagjeet Singh & Others versus Ashish
Mishra @ Monu & Another1, wherein it has
been stated that a 'victim' within the meaning
of Cr.P.C. cannot be asked to await the
commencement of trial for asserting his/her
right to participate in the proceedings.

9. Learned counsel has further relied on
the judgement of the Supreme Court passed
in Sudha Singh versus State of Uttar
Pradesh2, wherein it has been opined that the
accused person, who has been prosecuted in
fifteen cases for serious offences including
murder, attempt to murder and criminal
conspiracy, should not have been granted bail
under the U.P. Gangster and Anti-Social
Activities (Prevention) Act, 1986, and the
said bail was set aside by the Supreme Court.

10. The learned counsel has further
stated that the property worth crores of rupees
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
belonging to the father of the applicant has
been attached and even his three bank
accounts have also been attached by the
State. Learned counsel has next stated that the
deep involvement of the applicant as the
active member of the gang in a very sensitive
matter and same has to be considered as per
the provision of U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986, as
any member of the gang, collectively or
individually,
is
equally
instrumental.
Therefore,
the
individual
act
or
the
registration of previous case by him or her is
to be judged by entire activity of gang in
totality. Learned counsel has further stated
that she is likely to inherit the illegally gained
property of her father and husband.

11. Learned counsel has placed reliance
on the judgement of this Court passed in
Sabir Ali Khan versus State of U.P.3,
wherein it has been stated that the Court has
to be satisfied regarding the fact that there is
no likelihood of the applicant committing any
offence, whatsoever, in future also.

12. Learned counsel has further stated
that there is a criminal history of thirteen
cases of the father of applicant, which
includes four cases of murder. He has next
stated that there is a criminal history of two
cases assigned to the husband of applicant
also.

13. Learned counsel for the applicant
has stated that the said case laws are not
applicable to the present applicant as she is a
lady and the criminal history referred to
regarding father and husband of applicant by
the learned counsel for the said victim does
not apply to the applicant. The applicant was
not named in the said FIR under Section 302
IPC, and her name has come up later on
during investigation. The FIR was filed
against unknown persons. The father of
applicant is an Ex-M.P. and all have been
implicated out of political rivalry.

CONCLUSION:-

14. A perusal of the record suggests
that the FIR in the subject matter has been
lodged by Awdhesh Raj Singh, S.H.O. P.S.
Bilaspur, District- Balrampur, U.P. and
there are only police witnesses in it. The
victim/complainant of the predicate offence
i.e. FIR No. 002 of 2022 is neither a victim
nor a witness in the offence under the U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986,

15. If the said victims of the predicate
offence are permitted to appear and oppose
the bail applications in the matters of
Gangsters Act, it shall open a Pandora's
box and prove hurdle in proper disposal of
the case.

16. It is true that the victim has been
defined under Section 2(wa) of Cr.P.C.,
and the victim has been accorded the
opportunity to file an appeal against any
order of acquittal under proviso to Section
372 Cr.P.C.. Section 2 (wa) Cr.P.C. is
being reproduced herinunder:-

"Section 2(wa)- "victim" means a
person who has suffered any loss or injury
caused by reason of the act or omission for
which the accused person has been
charged and the expression "victim"
includes his or her guardian or legal heir."

17. Section 24(8) of Cr.P.C. reads as
follows:-

"Section 24(8)- The Central
Government or the State Government may
appoint, for the purposes of any case or
6 All. Zeba Rizwan Vs. State of U.P.
1025
class of cases, a person who has been in
practice as an advocate for not less than
ten years as a Special Public Prosecutor:

[Provided that the Court may
permit the victim to engage an advocate of
his choice to assist the prosecution under
the sub-section.]

18. Under proviso to Section 24(8)
Cr.P.C., permission is accorded to the
advocate of the choice of the victim to
assist the prosecution and not to the public
prosecutor. This has of late been added
vide
amendment
of
Cr.P.C.
dated
31.12.2009.

19. Section 372 Cr.P.C. is being
reproduced hereinunder:-

"372. No appeal to lie, unless
otherwise provided.- No appeal shall lie
from any judgment or order of a Criminal
Court except as provided for by this Code
or by any other law for the time being in
force.

[Provided that the victim shall have a
right to prefer an appeal against any order
passed by the Court acquitting the accused
or convicting for a lesser offence or
imposing inadequate compensation, and
such appeal shall lie to the Court to which
an appeal ordinarily lies against the order
of conviction of such Court.]"

20. Despite the said amendments in
the Cr.P.C., Section 301 has not been
amended to date. Section 301 of the Code
reads hereinunder:-

"301.
Appearance
by
Public
Prosecutors.-(1) The Public Prosecutor or
Assistant Public Prosecutor in charge of a
case may appear and plead without any
written authority before any Court in which
that case is under inquiry, trial or appeal.

(2) If in any such case any private
person instructs a pleader to prosecute any
person in any Court, the Public Prosecutor
or Assistant Public Prosecutor in charge of
the case shall conduct the prosecution, and
the pleader so instructed shall act therein
under the directions of the Public Prosecutor
or Assistant Public Prosecutor, and may,
with the permission of the Court, submit
written arguments after the evidence is closed
in the case."

21. Section 301 applies to the
complainant of the case, who can get himself
represented in Court through his Advocate.
The reason is that the complainant may or
may not be the stranger to the offence, but the
victim is the person, who suffers due to that
offence.

22. Of late, the criminal jurisprudence
has developed that the victim is being
accorded proper opportunity of being heard
not only at the various stages of trial and even
at the stage of disposal of bail. But the story
herein is a bit different. The matter in
question is under Section 3(1) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986, and not under the
IPC or any other Special Act and the
complainant of the said case is the S.H.O. of
the police station. So the counsel for the
victim of the predicate offence i.e. FIR No.
002 of 2022 does not come within the
category of "victim" pertaining to the present
case. Inspite of the provisions discussed
above, the counsel for victim in the offence
u/s 302 IPC has been heard at length.

23. After hearing the learned counsel
for the parties and seeing the circumstances
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
of the case and considering the fact that
there is only one case pending against the
applicant and that too of a criminal
conspiracy, the twin conditions referred to
in Section 19(4) of the U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986, stand satisfied and it is a fit case for
bail.

24. Without expressing any opinion
on the merits, the bail application is
allowed. Let the applicant Zeba Rizwan,
involved in aforesaid case crime be
released on bail on her furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
that :-

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

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

25. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicant and
sureties be verified by the court concerned
before the bonds are accepted.
----------
(2022)06ILR A1026
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.
Criminal Misc. Bail Application No. 5425 of 2022

Maulana Kaleem Siddiqui ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ishan Baghel, Mohemmed Amir Naqvi

Counsel for the Opposite Party:
G.A.

A. The National Investigation Agency
Act,2008 - Section 21 - Scheduled offences,
whether
investigated
by
the
National
Investigation Agency or by the investigating
agencies of the St. Government, are to be tried
exclusively by Special Courts set up under the
NIA Act. When the cases pertaining to the
scheduled offence are to be tried by a Special
Court, then Section 21 of the NIA Act would 9
categorically apply to the case and an appeal
shall only lie to the said case, before a division
bench of the High Court, therefore, against the
bail rejected by Special Court appeal would lie
before the Division Bench of the High Court. Bail
Application dismissed as non maintainable.

Held: Application allowed. (E-12)

List of Cases cited:-

1. Vineet Kumar Dixit Vs St. of U.P. Bail No.
8778 of 2018

2. Cherukuri Kutumbayya Vs The Municipal
Council, Vijayawada

3. Bikramjit Singh Vs St. of Pun. (2020)10 SCC 616
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri I.B. Singh, learned Senior
Counsel assisted by Sri Ishan Baghel, learned
counsel for the applicant, Sri Shiv Nath
Tilhari, learned A.G.A.-I for the State and
perused the material available on record.

2. At the outset, learned A.G.A.-I for
the State has raised a preliminary objection