Allahabad High Court
Alok Shukla vs State Of U.P. on 9 December, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:200005 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39558 of 2024 Applicant :- Alok Shukla Opposite Party :- State of U.P. Counsel for Applicant :- Kamal Kumar Singh,Sudhir Kumar Mishra Counsel for Opposite Party :- G.A.,K.K.Rao,Pradeep Kumar Srinette Hon'ble Ashutosh Srivastava,J.
Heard Shri Kamal Kumar Singh and Shri Sudhir Kumar Mishra, learned counsel for the applicant, learned AGA for the State-respondents, Shri K. K. Rao, learned counsel for the informant in predicate offence and perused the record.
The present bail application under Section 439 Cr.P.C. has been filed on behalf of applicant Alok Shukla under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 339 of 2024, under Sections 2, 3(1) Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, registered at Police Station Civil Lines, District Prayagraj, during pendency of the trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. Present case has been imposed upon the applicant. Police have prepared the gang chart under the provisions showing one criminal case being Case Crime No. 340 of 2023, under Section 386, 506 IPC, Police Station Civil Lines, District Prayagraj against the applicant. According to the prosecution version, police has implicated the applicant and other co-accused in an anti social activities, but the applicant is not member of any gang nor running gang against the society. The FIR has been lodged against the applicant with mala fide intention for the purpose of harassment. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses.
The applicant, who is languishing in jail since 7.10.2024 undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant.
Shri K. K. Rao, learned counsel for the informant in predicate offence has also vehemently opposed the prayer for bail and submits as under:-
(i) that the Applicant is a habitual offender and similar nature of crimes are being committed by the applicant and other gang members. Applicant with the help of his wife Anupam Shukla @ Anupam Tripathi used to lodge cases under section 376 I.P.C. against the innocent and respectful persons of the society. Applicant and other gang members whenever found that the investigation is not concluded in their favour, they use to given application U/s 156(3) Cr.P.C. against the investigating officer of that case.
(ii) that section 2(b) of the Uttar Pradesh gangsters and anti-social activities (prevention) act, 1986 defines the term “Gang”means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities. Applicant and other co-accused persons operate an organized gang and commit offences punishable under Indian penal code. The very purpose of the gang is to ill financial gains by committing innumerable crimes of serious nature.
(iii) that the offence committed by the applicant and other co-accused comes within the preview of section 2(b)(iv) of the Uttar Pradesh gangsters and anti-social activities (prevention) act, 1986 “preventing or attempting to prevent any public servant or any witness from discharging his lawful duties”.
(iv) that the applicant and all the accused are gangster and they are operating a well organized gang. All the accused are cunning criminals and with gang leader Apurva Sonkar, in a planned manner they extort money from people by luring them with the promise of getting government job for their own and their families economic and material benefits. These people, in order to evade to return the money, commit heinous crime, like extortion by getting registered false case and earn illegal money.
(v) that the investigating officer during the investigation of case crime no. 179/2020 had mentioned the finding in supplementary case diary No. 11 that the co-accused Anupam Shukla @ Anupam Tripathi during the investigation being annoyed with earlier investigating officer, has filed an application U/s 156(3) Cr.P.C. against the earlier investigating officer namely Rajesh Yadav C.O. City-IV leveling the charges U/s 4 S.C./S.T. act. It was further mentioned that the applicant whenever finds that the investigation is not concluded in her favor, she used to file an application U/s 156(3) Cr.P.C. against that investigating officer. Details of some of the cases in which application under section 156(3) has been filed by the applicant and co-accused against the police officials are as below:-
1. Application U/s 156(3) Cr.P.C. filed by gang leader Apoorva Sonkar registered as Misc. case No. 404/2022 U/s 4 (d), (e), (f), (g) S.C./S.T. act against Rajesh Yadav C.O. City-IV (investigating officer of case crime No. 0066/2020)
2. Application U/s 156(3) Cr.P.C. filed by Applicant Anupam U/s 166, 166(a), 166(b), 167, 175, 177, 198, 197, 199, 217, 218, 219, 354, 504, 506, 120-B I.P.C. against S.H.O. and 3 other police persons of P.S. Phaphamau.
3. Application U/s 156(3) Cr.P.C. filed by gang leader Apoorva Sonkar registered as Misc. case No. 10614/2023 U/s 4 (d), (e), (f), (g) S.C./S.T. act, 166(a), 166(b) I.P.C. against Chirag Jain I.P.S., Investigating officer of case crime No. 0066/2022 (During investigation of case crime No. 0066/2022)
4. Application U/s 156(3) Cr.P.C. filed by gang leader Apoorva Sonkar against Sanjay Kumar Patel, Clerk Samaj Kalyan Vibhag S.C./S.T. department.
(vi) that the co-accused Anupam Shukla @ Anupam Tripathi has filed an application U/s 156(3) Cr.P.C. against 7 named persons namely Dharmendra Kumar Sonkar, Rajendra Kumar Sonkar, Rohit Kumar Sonkar, Robin Sonkar, Pankaj Sonkar, Neeshu Sonkar, Tarachand and 4-5 unknown persons leveling allegations for the offences punishable under sections 376, 392, 323, 504, 506 and 307 I.P.C. It is pertinent to mention that the First Information report has been lodged against Neeshu Sonkar who is a practicing advocate. The fact is that Dharmendra Kumar Sonkar had lodged First Information Report against the gang members of present case and to exert pressure in order to effect compromise, applicant’s wife Anupam Shukla has given the aforesaid false and fabricated application U/s 156(3) Cr.P.C.
(vii) that the applicant and other gang members had lodged several false cases against the innocent persons of Prayagraj, details of which are as below:-
1. Case Crime No. 179/2020 U/s 147, 504, 506, 354(KA) I.P.C., U/s 66 I.T. act and section 3(2)(5A) S.C./S.T. Act P.S. George Town dated 26.05.2020. Final Report has been submitted.
2. Case Crime No. 385/2022 U/s 147, 504, 506, 354(KA) I.P.C. P.S. Phaphamau dated 19.11.2022 lodged by the applicant against predicate victim, his wife and other persons. Final Report has been submitted.
3. Case Crime No. 472/2020 U/s 147, 504, 506, 354(KA) I.P.C., U/s 66 I.T. act P.S. Phaphamau dated 23.06.2020 lodged by the applicant against the wife of predicate victim and other persons. Final Report has been submitted.
4. Case Crime No. 66/2022 U/s 392, 307, 323, 504, 506, 406, 376 I.P.C. P.S. Mahila Thana dated 14.07.2022 lodged by the Gang Leader Apoorva Sonkar against predicate victim and other persons. Final Report has been submitted.
5. Case Crime No. 45/2022 (lodged against retired police personal),under section 354-B, 323, 504, 506, 452, 392 I.P.C. P.S. Mahila Thana, Prayagraj lodged by the Gang Leader Apoorva Sonkar against Jai Prakash Dubey and entire family.
6. Case Crime No. 244/2023 u/s 376D, 392, 323, 504, 506, 307 IPC PS Kudganj lodged by the applicant against Dharmendra Sonkar and other persons.
(ix) That some of the criminal history of the applicant and co-accused who formed the gang, are as under:-
1. Case Crime No. 304/2019 U/s 419, 420, 467, 468, 471, 493, 354(Kha), 504, 506, 190, 51 1 I.P.C., P.S. Cantt.
2. Case Crime No. 422/2020 U/s 147, 323, 504, 506, 406 and 3(2)(Va) Kydganj.
3. Case Crime No. 152/2023 U/s 419, 420, 504, 506, 406, 294 P.S. Daraganj.
4. Case Crime No. 555/2023 U/s 420, 406, 506 I.P.C. P.S. Dhoomanganj.
5. Case Crime No. 204/2023 U/s 392, 384, 342, 323, 504, 506 I.P.C. P.S. Daraganj.
6. Case Crime No. 242/2023 U/s 147, 323, 504, 506, 342, 384 I.P.C. and section 3(2)(Va) S.C/S.T act P.S. Kydganj.
7. Case Crime No. 243/2023 U/s 147, 323, 504, 506, 341, 324, 392 I.P.C. P.S. Kydganj.
8. Case Crime No. 340/2023 U/s 386, 506 I.P.C. P.S. Civil Lines.
9. Case No. 515/2020 U/s 138 N.I. Act P.S. Atarsuiya.
10. Case No. 754/2020 U/s 138 N.I. Act P.S. Kotwali.
11. Case No. 801/2021 U/s 138 N.I. Act P.S. Kydganj.
12. Case No. 545/2019 U/s 138 N.I. Act P.S. Cantt.
13. Case No. 742/2020 U/s 138 N.I. Act P.S. Kotwali.
14. Case No. 755/2019 U/s 138 N.I. Act.
(x) Learned counsel for the first informant/complainant has cited certain case law in order to substantiate his arguments, the relevant paragraphs of the case law which are as under:-
Criminal Misc. Bail Application No. 8930 of 2023 (Mohd. Afzal Vs State Of U.P.)
Relevant paragraphs of the case law:-
20 (I). Ashok Kumar Dixit vs. State of UP :
151. We are unable to uphold the submission. The impugned Act is designed to deal with a lass of crime which is entirely distinct from the ordinary offences, and the accused involved may be such as against whom it may be difficult to collect evidence sometimes. Consequently, if the Legislature made a provision for larger period of remand than contemplated by sub-s. (2) of S. 167, Cr. P.C., it may not be possible to hold sub-s. (2) of S. 19 to be ultra vires on that ground.
152. Further first remand is granted by the Judicial Magistrate or by the Executive Magistrate which cannot exceed more than sixty days. Any further remand is granted only by the special Judge after satisfying himself as to the desirability of granting further time to the investigating officer for completing the investigation. The discretion to grant remand for a period of sixty days is thus vested in a Judicial Officer, namely, the Special Judge who may disallow further remand asked for by the investigating agencies, if grounds for the same are not made out. Power of further remand is not with any executive authority. We therefore, do not see any unconstitutionality in S. 19(2) of the Act.
153. Arguments were also advanced before us challenging the validity of Cl. (e) of S. 2, U.P. Act. 7 of 1986, in so far as it provided that even a person in whose welfare the public servant is interested would be a member of his family. Clause (e) provides:? 4 AIR 1987 All 235 [6] “Member of the family of a public servant means his parents or spouse and brother, sister, son, daughter, grandson, granddaughter or the spouses of any of them, and includes a person dependent on or residing with the public servant and a person in whose welfare the public servant is interested.”
154. We find that the aforesaid definition of member of the family of a public servant is extremely vague and incapable of being worked out. How could a person in whom a public servant is interested be a member of his family. This definition including any person in whose welfare the public servant if interested is extremely vague, and, as such is liable to be held as unreasonable. As a result whereof, we hereby find that the phrase” and a person in whose welfare the public servant is interested” is unconstitutional on the ground of being unreasonable and violative of Art. 14 of the Constitution. However, since this clause is capable of being severed from the remaining, it is not correct to argue that the whole of cl. (e) of S. 2 would have to be struck down.
155. These petitions had been filed mainly on the ground that U.P. Act 7 of 1986 was ultra vires the Constitution. We have not been able to find substance in any one of the grounds of attack of the Act. So far as our power to quash the investigation and the proceedings pending before the Special. Judges challenged in some of the writ petitions before us, are concerned, we are of opinion that this is not possible to be done in these cases. Judicial opinion seems to be settled and we have several authorities of the Supreme Court where interference by the Court into police investigation has been disapproved. This question arose in connection with an application under S. 561A Criminal P.C. in an appeal in State of West Bengal v. S.N. Basak, AIR 1963 SC 447. Kapoor, J. quoted with approval the observations of the Judicial Committee in the case of Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18, where the Privy Council observed:
“The functions of the judiciary and the police are complementary not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to interfere in an appropriate case when moved under S. 491, Criminal P.C. to give directions in the nature of habeas corpus.”
156. This view was followed by the Supreme Court in State of West Bengal v. Sampat Lal, (1985) 1 SCC 317 : AIR 1985 SC 195 and Eastern Spinning Mills Shri Virendra Kumar Sharda v. Rajiv Poddar, 1989 Supp (2) SCC 385 : AIR 1985 SC 1668. In this case, the Supreme Court observed: [7] “We consider it absolutely unnecessary to make a reference to the decision of this Court and they are legion which have laid down that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and judicial process should I not interfere at the stage of investigation of offences.”
157. Of course, the decisions cited above were in connection with S. 482, Cr. P.C., but the scope of interference under Art. 226 of the Constitution is narrower. The power of superintendence of the High Court under Art. 226 being extraordinary is to be exercised sparingly and only in appropriate cases. The power to issue certiorari cannot be invoked to correct an error of fact which a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in exercising its jurisdiction under Art. 226 convert itself into a Court of appeal when the legislature has not chosen to confer such a right.
158. The High Court’s function is limited to see that the subordinate court or Tribunal or authority functions within the limits of its power. It cannot correct errors of fact by examining the evidence.
159. In a writ petition filed under Art. 32 of the Constitution, the argument made on behalf of the petitioner of that case that there I was no material whatsoever to warrant the framing of charges, hence, the entire proceedings were liable to be quashed. The Supreme Court in Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : AIR 1987 SC 149, repelled that argument by saying: “It was strenuously contended by Sri Jethmalani that there was no material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge sheet other than S. 165A. We desire to express no opinion on this question. It is not a matter to be investigated by us in a petition under Art. 32 of the Constitution. We wish to emphasise that this Court cannot convert itself into the Court of a Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of charges”.
160. For the reasons given above, all the writ petitions fail and are dismissed with costs. Interim order shall stand vacated.
(II). Dharmendra Kirthal vs. State of UP :
45. It is apposite to note here that there is a distinction between an accused who faces trial in other courts and the accused in the Special Courts because the accused herein is tried by the Special Court as he is a gangster as defined under Section 2(c) of the Act and is involved in anti-social activities with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person. It is a crime of a different nature. Apart from normal criminality, the accused is also involved in organised crime for a different purpose and motive. The accused persons under the Act belong to an altogether different category. The legislature has felt that they are to be dealt with in a different manner and, accordingly, the trial is mandated to be held by the Special Courts in an expeditious manner. The intention of the legislature is to curb such kind of organised crimes which have become epidemic in the society.
(III). State of Maharashtra vs. Vishwanath Maranna Shetty :
29. While dealing with a special statute like MCOCA, having regard to the provisions contained in sub-section (4) of Section 21 of this Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. In view of the above, we also reiterate that when a prosecution is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, these provisions cannot be ignored while dealing with such an application. Since the respondent has been charged with the offence under MCOCA, while dealing with his application for grant of bail, in addition to the broad principles to be applied in 6 (2012) 10 SCC 561 [14] prosecution for the offences under IPC, the relevant provision in the said statute, namely, sub-section (4) of Section 21 has to be kept in mind. It is also further made clear that a bare reading of the non obstante clause in sub-section (4) of Section 21 of MCOCA that the power to grant bail to a person accused of having committed offence under the said Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 but also subject to the restrictions placed by clauses (a) and (b) of subsection (4) of Section 21. Apart from giving an opportunity to the prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty, has to be based on “reasonable grounds”. Though the expression “reasonable grounds” has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on both the aspects mentioned in clauses (a) and (b) of sub-section (4) of Section 21 is sine qua non for granting bail under MCOCA.
30. The analysis of the relevant provisions of MCOCA, similar provision in the NDPS Act and the principles laid down in both the decisions shows that substantial probable cause for believing that the accused is not guilty of the offence for which he is charged must be satisfied. Further, a reasonable belief provided points to existence of such facts and circumstances as are sufficient to justify the satisfaction that the accused is not guilty of the alleged offence. We have already highlighted the materials placed in the case on hand and we hold that the High Court has not satisfied the twin tests as mentioned above while granting bail.
(IV). Collector of Customs v. Ahmadalieva Nodira :
8. In the aforesaid background, this does not appear to be a case where it could be reasonably believed that the accused was not guilty of the alleged offence. Therefore, the grant of bail to the accused was not called for. The impugned order granting bail is set aside and the bail granted is cancelled. The respondent-accused is directed to surrender to custody forthwith. Additionally, it shall be open to the trial court to issue notice to the surety and in case the accused does not surrender to custody, as directed, to pass appropriate orders so far as the surety and the amount of security are concerned. It is made clear that no final opinion on the merit of the case has been expressed in this judgment, and whatever has [16] been stated is in the background of Section 37 of the Act for the purpose of bail.
(V). Kamlesh Pathak v. State of UP :
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 v. State of U.P., (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.
I have heard learned counsel for the parties and perused the record.
Along with the present case, other FIRs have been registered against the applicant and other co-accused persons, as such, inference can be drawn against the applicant that he along with other co-accused persons is operating an organized gang. The totality of circumstances and the gravity of offence mentioned in the said FIRs go against the applicant.
The instant case registered against the applicant does not seem to be misuse of the act as the applicant and other co-accused persons associated with the applicant have a long criminal history.
Thus, there is no reasonable ground for this Court to believe that the applicant is not guilty of such offence and applicant is not likely to commit any offence in future while on bail, as is the requirement of Section 19 (4) of the U.P. Gangster Act.
Considering the submissions of learned counsel for the parties, nature of allegations, gravity of offence and all attending facts and circumstances of the case, the Court is of the opinion that it is not a fit case for bail. Hence, bail application of the applicant is hereby rejected.
It is made clear that observation made hereinabove are limited to the facts brought in by the learned counsel for the parties pertaining to the disposal of the bail application and the aforesaid observations shall have no bearing on the merits of the case during trial.
Order Date :- 9.12.2024
Ravi Prakash
(Ashutosh Srivastava, J.)