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2022 DIGILAW 1546 (ALL)

Mahesh Vashishtha v. State of U. P.

2022-09-23

SUBHASH VIDYARTHI

body2022
JUDGMENT : Subhash Vidyarthi, J. 1. Heard Sri Shikhar Awasthi, the learned counsel for the applicant, Sri Shashi Shekhar Tiwari, the learned A.G.A. for the State, Shri Kamal Kishor Mishra, the learned counsel for the informant and perused the record. 2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Case Crime No. 639 of 2018, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, P.S. Govindnagar, District Mathura. 3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 25-09-2018 by the Station House Officer against two named accused persons (i) Harendra and (ii) Mahesh Vashishtha, alleging that upon perusal of the gang-chart approved by the District Magistrate he came to know that the accused persons are having an organized gang and the members of the gang earn their livelihood by committing offences mentioned under Chapters XVI, XVII, XVIII and XXII of the Indian Penal Code. 4. The gang-chart mentions involvement of the applicant is a solitary case being Case Crime No. 435 of 2018, under Sections 420, 467, 468, 471, 406, 120-B I.P.C., P.S. Govind Nagar, District Mathura, in which the applicant has been convicted by means of a judgment and order dated 17-03-2021 passed by the learned Chief Judicial Magistrate in Criminal Case No. 6633 of 2018. 5. A supplementary affidavit has been filed on behalf of the applicant stating that the aforesaid judgment and order of conviction has been challenged by way of filing Criminal Appeal No. 38 of 2021 in this Court and by means of an order dated 08-08-2022, this Court has released the applicant on bail in the aforesaid case. 6. The learned counsel for the applicant has submitted that the applicant has been implicated on the basis of solitary case mentioned in the gang-chart for which the applicant is in custody since 30-07-2018 and the allegations levelled in the F.I.R. lodged on 25-09-2018 that the Station House Officer came to know from the gang-chart approved by the District Magistrate that the applicant was earning his livelihood by committing offences under Chapter 16, 17, 18 and 22 of the Indian Penal Code, is absolutely vague and baseless. His submission is that the applicant or any person for that matter cannot be prosecuted on the basis of such vague allegations. 7. His submission is that the applicant or any person for that matter cannot be prosecuted on the basis of such vague allegations. 7. It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, that he has been falsely implicated in the case, that he is neither a leader nor a member of any gang and he is in jail since 30-09-2018. 8. The learned A.G.A., on the basis of instructions has opposed the prayer for grant of bail to the applicant. He has submitted that it is mentioned in the gang-chart that the accused persons have formed an organized gang; that the co-accused is its leader and the applicant is an active member of a gang and the members of public at large are terrorized to such an extent that no person comes forward to lodge a case or to give evidence against them. The gang-chart further mentions that this gang earns its livelihood by committing offences described under Chapters XVI, XVII, XVIII and XXII of the Indian Penal Code, which acts fall within the purview of Section 2/3 of the U.P. Gangster and Anti-Social Activities (Prevention) Act. 9. Having considered the aforesaid facts and submissions what is apparent from the face of the record is that there is only a solitary case in which the applicant has been implicated and that is under Sections 420, 467, 468, 471, 406, 120-B I.P.C., which was apparently committed against some private individuals. There is absolutely no allegation of any crime affecting the society at large having been committed by the applicant. There is no allegation in the F.I.R. regarding any specific offences having been committed by the applicant apart from the solitary case mentioned in the gang-chart. 10. The allegation that the applicant and the other co-accused are earning their livelihood by committing offences mentioned under Chapters XVI, XVII, XVIII and XXII of the Indian Penal Code is as vague as it can be. Although it is true that a F.I.R. need not be an encyclopedia containing detailed particulars of all the allegations regarding the incident, still a bare reading of the F.I.R. should give an idea as to what the precise allegation against the accused is. Although it is true that a F.I.R. need not be an encyclopedia containing detailed particulars of all the allegations regarding the incident, still a bare reading of the F.I.R. should give an idea as to what the precise allegation against the accused is. Merely saying that the accused is involved in offences mentioned in Chapters XVI, XVII, XVIII and XXII of the Indian Penal Code, without mentioning particulars of the offences allegedly committed by the applicant cannot be appreciated. 11. In case the members of the public at large are terrorized to such an extent that they are afraid to come forward to lodge a F.I.R. and the Station House Officer has knowledge about this fact, he himself ought to have lodged a First Information Report of the offences allegedly committed by the applicant as the law does not require the victim of offence only to lodge an F.I.R.. 12. In A.R. Antulay Vs. Ramdas Sriniwas Nayak and another, 1984(2) SCC 500 , the Hon'ble Supreme Court has held:- 'It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The Scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. …………. Locus Standi of the complaint is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complaint, by necessary implication the general principle gets excluded by such statutory provision.' 13. Keeping in view the aforesaid legal position, in case the applicant is actually involved in committing various offences mentioned in Chapters XVI, XVII, XVIII and XXII of the Indian Penal Code and the Station House Officer of police station has knowledge about this fact, there was no bar against the Station House Officer himself filing an F.I.R. against the applicant alleging commission of those offences. He has chosen not to file any F.I.R. against the applicant alleging commission of any particular offence mentioned in the aforesaid Chapters of the Indian Penal Code, rather he has filed an F.I.R. under the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 on the basis of the aforesaid allegation, which prima facie appears to be vague. 14. He has chosen not to file any F.I.R. against the applicant alleging commission of any particular offence mentioned in the aforesaid Chapters of the Indian Penal Code, rather he has filed an F.I.R. under the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986 on the basis of the aforesaid allegation, which prima facie appears to be vague. 14. In view of the aforesaid discussions and also keeping in view the fact that the applicant has been granted bail in an appeal in the solitary predicate offence mentioned in the gang-chart, I am of the view that the applicant is entitled to be released on bail pending conclusion of the trial. The bail application is accordingly allowed. 15. Let the applicant – Mahesh Vashishta be released on bail in Case Crime No. 639 of 2018, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, P.S. Govindnagar, District Mathura on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence. 16. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application bail before this Court seeking cancellation of bail.