Bhanu Prakash Verma vs State of U.P. and Another

S.N.H. Zaidi, J.—These applications u/s 439(2) Cr.P.C. have been filed by one of the victims/injured of the incident for cancellation of bail granted to accused-opposite parties in Case Crime No. 466 of 2007 under Sections 147, 148, 149, 323, 307, 302, 504, 506 I.P.C. and 3 (1) U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1985, for short Gangster Act, of Police Station Jaisinghpur, District Sultanpur by the Special Judge, Gangsters Act, Faizabad, vide order dated 10.12.2007.

The bail order has been challenged mainly on two counts; firstly, that the bail has been granted ignoring the mandatory provisions of Section 19 (4) of the Gangsters Act; and; secondly, that the learned Special Judge did not take into account the parameters, for considering the application for bail in a serious case like murder, specified by the Apex Court in the case of State of U.P. v. Amarmani Tripathi reported in State Vs. Amarmani Tripathi,

I have heard Mr. Prabhat Kumar, learned Counsel for the petitioner and Mr. J. P. Pandey, learned Counsel for the accused-opposite parties and perused the material on record.

Mr. Kumar has pointed out that the learned Special Judge, has admitted the accused-opposite parties to bail for the offence of the Gangster Act after holding that a single incident/case could not be a basis for prosecution under the said Act on the strength of the observation of the Division Bench of this Court in Subhash v. State of U.P. JIC 1998 405, but the view expressed in the case of Subhash (supra) has already been been considered and distinguished by another Division Bench of this Court in the case of Kishan Pal v. State of U.P. reported in 2006 (54) ACC 1015, in which it has been observed that a Division Bench of this Court in Rinku alias Hukku v. State of U.P. and Anr. 2001 ACC 641 has held that singular includes plural and vice versa and thereby a single act of anti-social activities is sufficient to trap a person as a gangster and as such the basis of the judgment in Subhash case was not available to the learned Special Judge.

It has also been contended that since the learned Special Judge has not considered the limitations provided for in Section 19(4) of the Gangster Act while granting bail to the accused opposite parties in respect of the offence under the said Act, hence, the bail order is bad in law and liable to be set aside.

Sub-section (4) of Section 19 of the Gangster Act, which is analogous to Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short NDPS Act), reads as follows:

''''(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 is pointed out that the Apex Court has considered the question regarding the grant of bail under the NDPS Act in the background of Section 37 in several cases.

In the case of Customs, New Delhi Vs. Ahmadalieva Nodira, the Supreme Court has observed that:

As observed by this Court in Union of India (UOI) Vs. Thamisharasi and Others, Clause (b) of Sub-section (1) of Section 37 imposes, limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent accused is concerned, are the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ''reasonable grounds'' means something more than prima facie grounds....

In Superintendent, Narcotics Central Bureau Vs. R. Paulsamy, the Apex Court has held that in matters arising out of the NDPS Act grant of bail is controlled by Section 37 of the Act and it is mandatory for the court to hear the Public Prosecutor and come to the prima facie conclusion that there is no material to come to the conclusion that the accused could be held guilty of the charges leveled against him. Since such a conclusion is not recorded by the High Court and is not supported by reasons we think the impugned order cannot be sustained.

In N.R. Mon Vs. Md. Nasimuddin, the Supreme Court has held that where the bail has been granted without specifically considering the parameters of Section 37(1)(b), the bail order is invalid.

It has been contended that the above observations are equally applicable in respect of Section 19(4) of the Gangsters Act and as the Special Judge has completely overlooked the underlying object of the said section and has not recorded his satisfaction that there were reasonable grounds for believing that the accused-opposite-parties were not guilty of the alleged offence and also that there was no likelihood to commit any offence while on bail, the bail order is bad in law and liable to be set aside.

Mr Kumar has further contended that the Supreme Court in the case of State of U.P. v. Amarmani Tripathi (supra) has held that while considering the application for bail, the court is required to look at (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail, but as the impugned bail order does not reveal that the learned Judge had considered these circumstances while admitting the accused-opposite parties to bail for the offences of Section 302 I.P.C. etc., therefore it cannot be sustained.

Learned Counsel for the accused-opposite parties has, on the other hand, contended that since this is a petition for cancellation of bail, hence the criterion for consideration of the petition is entirely different than the consideration required for rejection of bail in a non-bailable offence. It has also been contended that for cancellation of bail, the paramount consideration shall be that whether the accused-opposite parties are fleeing from justice, tampering with evidence or misused or abused the benefit of freedom of grant of bail and as there is no such allegation in this petition, therefore, the bail cannot be canceled. Learned Counsel has placed reliance on the observations of a single Judge of Madras High Court in the case of P. Muthupandi Vs. State, in support of his contentions.

I have given my considered thought to the matter in hand. The locus standi of the petitioner in moving the present petitions has not been challenged.

The Supreme Court in the case of Brij Nandan Jaiswal Vs. Munna @ Munna Jaiswal and Another, has observed that the complainant can always question the order granting the bail if it has not been validly passed and it is not necessary that if once a bail has been granted by any court, the only way is to get it cancelled on account of its misuse. It is also observed that the bail order can be tested on merits also. In Gobarbhai Naranbhai Singala Vs. State of Gujarat and Others, the Apex Court has observed that where the basic requirements necessary for the grant of bail have been completely ignored, the cancellation of bail is justified.

In the light of the observations of the Division Bench of this Court and the Apex Court, as mentioned above, the contentions of the learned Counsel for the petitioner appear acceptable. The bail order in question can not be upheld, as the learned Special Judge, while passing the same, has failed to consider the requirements of law for the grant of bail under the Gangsters Act as well as the necessary parameters for the consideration of bail. The impugned order, therefore, cannot be allowed to sustain and is liable to be set-aside. Both the applications are, accordingly, allowed and the bail granted to the accused opposite parties is hereby cancelled.

However, as the bail order has been set aside on purely legal grounds without entering into the merits of the case, therefore, the accused-opposite parties may move the learned trial court for consideration of bail afresh and if such an application is moved, the trial court is directed to dispose of the same in a month in accordance with law.

The accused-opposite parties shall surrender within two weeks from today. In case of default, a non-bailable warrant shall be issued against them.