Anil Yadav and Another vs State of U.P.

Barkat Ali Zaidi, J.—In this (Crime No. 298 of 2007), there were originally seven accused, out of which, Member of Parliament Sri Uma Kant Yadav and his son Dinesh Yadav were refused bail under the provisions of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the ''Act'') and out of the remaining five accused, three accused, who had applied for bail earlier, were granted bail because they were not charged under the provisions of the ''Act''. The facts of the case can be gathered from the earlier order (dated 1.10.2007) on the bail application of the accused, which is attached herewith as Annexure-A.

Heard Sri R. N. Yadav and I. M. Khan, advocate for the applicants and Sri M. L. Shukla, Additional Government Advocate for the State.

The present two accused have now been charged under Sections 147, 148, 149, 307, 427, 504, 506, 440, I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(i) of the Act, pending before the Special Judge Gangsters Act, Gorakhpur. Accused Ramesh Chauhan was the driver of the bulldozer while no specific role has been assigned to Anil Yadav. It was mentioned in the F.I.R. that all the accused had fired from their fire arms, but it is difficult to assume, that the driver also used fire arm and fired. This shows that the omnibus statement in the F.I.R. that all the accused fired from their fire arms,does not appear to be prima facie tenable.

The counsel for the State was asked as to why these two present accused applicants have been charged under the Gangsters Act, while the other three have not been charged under the said ''Act'', but he could not give any satisfactory reply to the same. These provisions under the Gangsters Act, does not seem prima facie justifiable.

However, since they have been charged under the Gangsters Act, the restriction imposed under the Gangsters Act has to be considered. That is what Section 19(4) of the ''Act'' says:

(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.

It will appear no previous criminal history is there in relation to these two accused applicants. There is nothing from the side of the prosecution to show that any previous F.I.R. was filed against them, or they were indulged in any other criminal activities. They have been implicated under the Gangsters Act only because of this incident. There is also no suggestion from the side of the State, that they are likely to indulge in any Anti-Social activities after release on bail. They should, therefore, be granted bail.

Applicants Anil Yadav and Ramesh Chauhan be released on bail in the aforenoted crime, on their each furnishing a personal bond of Rs. 20,000 with one surety in the like amount to the satisfaction of Chief Judicial Magistrate, Azamgarh.