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2022 DIGILAW 1743 (ALL)

Rahul Tiwari v. State of U. P.

2022-11-06

SAMIT GOPAL

body2022
JUDGMENT : 1. Heard Sri R.P.S. Chauhan, learned counsel for the applicant, Sri Ra Kumar Gupta, learned counsel for the State and perused the material on record. 2. This second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Rahul Tiwari, seeking enlargement on bail during trial in connection with Case Crime No. 66 of 2021, under Section 2/3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, registered at P.S. Aliganj, District Etah. 3. The first bail application of the applicant was rejected by this Court vide order dated 12.07.2021 passed in Crl. Misc. Bail Application No. 21222 of 2021 (Rahul Tiwari Vs. State of U.P.). 4. Learned counsel for the applicant argued that the applicant is in jail since 27.02.2021. It is argued that the trial in the present case has not yet started. It is further argued that the applicant is neither leader of any gang nor any member of any gang. It is further argued that co-accused Monu Katheriya, Abhay Dixit, Manu Gupta, Aman @ Amar @ Bhura, Mithun Kashyap, Krishna Gautam and Rohit Kori have been granted bail by coordinate Benches of this Court vide orders dated 23.10.2021, 21.12.2021, 13.12.2021, 28.06.2021, 05.10.2021, 17.11.2021 and 17.11.2021 passed in Crl. Misc. Bail Application Nos. 41526 of 2021 (Monu Katheriya Vs. State of U.P.), 46545 of 2021 (Abhay Dixit Vs. State of U.P.), 42183 of 2021 (Manu Gupta Vs. State of U.P.), 21092 of 2021 (Aman @ Amar @ Bhura Vs. State of U.P.), 36025 of 2021 (Mithun Kashyap Vs. State of U.P.), 37270 of 2021 (Krishna Gautam Vs. State of U.P.) and 38017 of 2021 (Rohit Kori Vs. State of U.P.). Copy of the said orders have been Annexued as Annxure S.A.1 to the supplementary affidavit dated 08.02.2022. 5. It is further argued while placing para 7 of the judgment in the case of Prabhakar Tewari Vs. State of U.P. and another : 2020 (11) SCC 648 that the Apex Court has stated that the criminal cases pending against the accused cannot themselves be the basis for refusal of prayer for bail. Further, the judgment in the case of Dr. Vinod Bhandari Vs. State of U.P. and another : 2020 (11) SCC 648 that the Apex Court has stated that the criminal cases pending against the accused cannot themselves be the basis for refusal of prayer for bail. Further, the judgment in the case of Dr. Vinod Bhandari Vs. State of M.P. : 2015 (11) SCC 502 para 12 has been placed before the Court and it is argued that the Apex Court has held that delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not concluded within a reasonable time. It is argued that as such looking to the facts of the case and the judgment of the Apex Court, the applicant be released on bail. 6. Per contra, learned counsel for the State opposed the prayer for bail and argued that the first bail application of the applicant was rejected on merits by a detailed order passed by this Court. It is argued that the criminal history of the applicant was considered by this Court while deciding the first bail application. It is argued that no fresh and new ground on merits has been placed before the which would call for interference at this stage. It is further argued that since the applicant has criminal history, release on bail may have an adverse effect in the trial and there are chances of his absconding also. 7. After having heard learned counsel for the parties and perusing the records, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 12.07.2021. The said order is extracted herein-below:- "Matter taken up through video conferencing. Heard Mrs. Pratibha Singh, learned counsel for the applicant, Sri Ravi Prakash Bhatt, learned AGA for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Rambharat, seeking enlargement on bail during trial in connection with Case Crime No. 66 of 2021, under Section 2/3 U.P. Gangsters and Anti Social (Activities) Prevention Act, 1986, registered at P.S. Aliganj, District- Etah. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that as per the gang chart the applicant is stated to be involved in only one case being Case Crime No. 40 of 2021, under Sections 147, 148, 149, 504, 506, 307 I.P.C., Section 7 Criminal Law (Amendment) Act, P.S.- Aliganj, District-Etah, in which he has been granted bail vide order dated 09.3.2021 by the Sessions Judge, Etah, copy of which has been annexed as annexure no. 2 to the affidavit. Learned counsel has placed before the Court para-8 of the affidavit filed in support of the bail application and has argued that the applicant has been implicated in six other cases being (i) Case Crime No. 49 of 2012, under Section 2/3 Gangster Act, (ii) Case Crime No. 724 of 2011, under Section 307 I.P.C., (iii) Case Crime No. 696 of 2011, under Sections 392, 411, 120B I.P.C., (iv) Case Crime No. 538 of 2014, under Sections 379, 356 I.P.C. Police Station- Kisni, District- Mainpuri, (v) Case Crime No. 1021 of 2014, under Section 393 I.P.C. Police Station-Kotwali, District-Mainpri and in all five cases the applicant has been released on bail and (vi) Case Crime No. 525 of 2010, under Sections 392, 411 I.P.C. Police Station-Bichhawa, District-Mainpuri in which he has been acquitted of the charges by the trial court vide judgement and order dated 30.5.2019. The copies of the said orders have been collectively annexed as annexure no. 3 to the affidavit. It is argued that the applicant is neither a leader nor a member of any gang and he never earns money from the wrong activities from the society and the applicant has no terror in the society. Para-9 of the affidavit has been placed before the Court to buttress the said argument. It is argued that the applicant is a law abiding person and is innocent and has been falsely implicated in the present case. The applicant is in jail since 27.2.2021. Para-9 of the affidavit has been placed before the Court to buttress the said argument. It is argued that the applicant is a law abiding person and is innocent and has been falsely implicated in the present case. The applicant is in jail since 27.2.2021. Per contra, learned AGA opposed the prayer for bail and argued prior to present case, the applicant was involved in seven criminal cases out of which though in one case he has been acquitted by the trial court, but his implication in seven case clearly shows that he is a person of criminal antecedents and criminal bent of mind and as such, the bail application be rejected. After having heard learned counsels for the parties and perusing the record, it is apparent that though the applicant has been released on bail in the single case on the basis of which the present F.I.R. has been registered, but as six other cases are in his credit out of which in one case he has been acquitted of the charges by the trial court, but in five other cases he is facing trial. The Apex Court in the case of Sudha Singh Vs. State of U.P. and another, Criminal Appeal No. 448 of 2021, vide its judgement dated 23.4.2021, cancelled the bail of the accused therein as granted by the High Court and has observed that antecedents of the accused have to be considered in matters pertaining to Gangsters Act and also his potential to repeat the acts by organizing his criminal activities have also to be looked into. Looking to fact and circumstances of the case, nature of evidence and gravity of offence and the law laid down by the Apex Court in Sudha Singh (supra), I do not find it a fit case to release the applicant on bail. Accordingly, the bail application is rejected. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing." 9. No fresh and new ground has been placed on merits before the Court. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing." 9. No fresh and new ground has been placed on merits before the Court. Further, it transpires from the supplementary affidavit dated 22.5.2022 that the trial court has taken cognizance upon the charge sheet vide order dated 08.03.2022 and has summoned the accused persons. The said order is annexure S.A.2 to the said supplementary affidavit. 10. Looking to the facts of the case and also the apprehension of the learned counsel for the State of the applicant tampering with evidence and of his chances of absconding, this Court does not find it a fit case for bail. 11. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail. 12. The bail application is, accordingly, rejected. 13. However, it is directed that the trial of the aforesaid case pending before the concerned trial court be concluded, as expeditiously as possible, strictly in accordance with Section 309 Cr.P.C. and in view of the principles as has been laid down in the judgement of Apex Court in the cases of Shailendra Kumar Vs. State of Bihar: (2002) 1 SCC 655 ; Vinod Kumar Vs. State of Punjab: (2015) 3 SCC 220 , Hussain and Another Vs. Union of India: (2017) 5 SCC 702 and Rajesh Yadav Vs. State of U.P. : Criminal Appeal No. 339-340 of 2014 (judgment dated 04.02.2022), subject to any legal impediment.