Barkat Ali Zaidi, J.@mdashThis is third bail application of accused who was initially refused bail by order dated 1.10.2007 which is Annexure-A and which should be read as part of this order, because the facts are contained in that order and need not to be repeated.
2. Heard Sri V.P. Srivastava, Senior Counsel assisted by Sri R.N. Yadav and Sri I.M. Khan, Advocates for the applicant and Sri Mewa Lal Shukla, Special Counsel for the State.
3. The argument of the learned Counsel for the applicant, was that in the case about the occurrence which is proceeding against three other accused at Azamgrh, who have not been challaned under the U.P. Gangsters And Anti Social Activities (Prevention) Act, 1986 hereinafter called as the ''Act'', five witnesses have turned hostile. The other side of the picture, is that, if the witnesses are turning hostile, while the accused is in jail, no one will dare to come forward, if he is released on bail.
4. There is prima-facie evidence about the fact of the construction of the complainant being erased to the ground by Bulldozer. The manner in which this demolition was done displayed. The mentality of a feudal landlord, which is wholly out of place in a country, governed by socialists and the democratic constitution as proclaimed by preamble to our constitution. It is this mindset, which needs to be curbed, and dislodged.
5. The other argument of the learned Counsel for the applicant was that the two other accused (Anil Yadav and Ramesh Chauhan) who are also charged under the Provisions of the ''Act'', have been released on bail and, as such, on ground of parity, the applicant also deserves bail. There can be no similarity between the two cases because the other two accused who, were granted bail, one was driving the Bulldozer and the other was a hired employee. They did not have any personal interest in the matter, and they were acting only on the direction of the accused-applicant and his father. They were not impute with the landlordish mentality. Their release on bail, can not be a legitimate ground for release, of the present accused-applicant.
6. The other argument by the learned Counsel for the applicant was that, the applicant does not have any criminal history, and there are no criminal cases, pending against him. He has been charged under the ''Act'', only on the basis of present incident which is not justifiable. This single offence of the applicant, was of a kind which tended to create panic alarm and terror in public, and by which the accused-applicant and his father wanted to muzzle any protest, is by itself sufficient, to attract the ''Act''.
7. There is a marked difference between the other crimes, the impact whereof is limited to individuals, and a crime of this nature, which has far reaching dimensions.
8. The counsel for the accused has also pointed out that the applicant has been in jail for last about 11 months. This also cannot be a valid ground for bail.
Bail refused. Application rejected.
Barkat Ali Zaidi, J.@mdashThese are five bail applications, which are being consolidated for orders, because they relate to the same occurrence and the crime number (298 of 2007 Police Station Phoolpur Kotwali district Azamgarh) is the same.
2. All the five applicants (accused) have been charged under Sections 147, 148, 149, 307, 427, 504, 506, 440 of Indian Penal Code and Section 7 Criminal Law Amendment Act while two of them Uma Kant and his son Dinesh Yadav have also been charged u/s 3(i) of U.P. Gangsters Anti Social Activities (Prevention) Act, 1986 (U.P. Act No. 7 of 1986) (hereinafter referred to as the ''Act''.
3. Heard Sri V.P. Srivastava, Senior Advocate assisted by Sri R.N. Yadav for the applicants, Sri M.L. Shukla, Addl. Government Advocate for the State and Sri Sanjeev Kumar Shukla for the complainant.
4. The order is being bifurcated because under the Gangsters Act, there are special provisions of bail, which need to be considered separately.
5. The offences under the Indian Penal Code against all the five accused must first be considered.
6. Sri Umakant Yadav is a Member of Parliament and Sri Dinesh Yadav is his son. Sri Umakant Yadav had purchased a piece of land in village Paliya Mafi Police Station Phoolpur Kotwali in District Azamgarh on 4.9.1998. He wanted to make construction over the land and some rooms were constructed thereon. In between this land and the road, there was the residential house of the complainant on the land purchased by his father vide registered deed dated 30.10.2006, which contained specific dimensions and precise details of the land purchased. Accused Sri Uma Kant wanted his house to be removed so that the constructions he had undertaken may acquire a road side frontage. The complainant, who was the owner of this house, refused to sell the house and the land of the house to Umakant and his efforts to acquire the same failed to fructify. This enraged Umakant Yadav and his son Dinesh Yadav, who demolished the house by a bulldozer on the night of 28.5.2007 around 12 O''Clock. The remaining three accused-applicants were involved in the demolition process. In consequence, the house was flattened. The side plan of the spot, which is on the case diary, will make things clear. The complainant thereafter lodged an F.I.R. on 29.5.2007 at 5.20 A.M. at Police Station Phoolpur Kotwali, whereupon the case against the accused was registered. The trial court rejected the bail of the five accused-applicants and thereafter, they have come to this Court.
7. When demolition was resisted, the accused are said to have used firearms to muffle resistance. The clout, the might and the authority displayed by a Member of Parliament in demolishing a poor neighbour''s house shows, not only his arrogance and swagger, but also scant respect for law. Representatives of the people in Law Making Bodies carry a heavy responsibility and are expected to demonstrate in their conduct the virtues of a good citizen. It is distressing to see law makers turning law breakers. They need to be reminded of the oft repeated aphorism that howsoever high you may be, the law is above you. The offence is grave and terror creating and the complainant has suffered enormous loss by demolition of the house which the criminal law, will not compensate,
9. Accused Umakant and his son Dinesh Yadav do not, therefore, deserve bail. As regards the three other applicants, their role is of subordinate nature and they had no personal interest involved. They have not been named in the F.I.R. and their names appear for the first time in statements recorded by the Investigating Officer u/s 161 Cr.P.C. They may, therefore, be granted bail.
10. As regards the offence, under the U.P. Gangsters Anti-Social Activities (Prevention) Act, 1986, which is only against Umakant and his son Dinesh Yadav, it will be noted that provisions for the bail are contained in Section 19(4) of the Act, which are as follows:
19. Modified application at certain provisions of the Code.-
(1) ...
(2) ...
(3) ...
(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 and that he is not likely to commit any offence while on bail.
11. It will be seen that in Section 2 of Act, "Gang" has been defined, which is as follows:
2.
(a) ...
(b) "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, namely:
(i) offences punishable under Chapter XVI, or Chapter XVIL, or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860),
or
(ii) ...
(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting up false claims for title or possession of immovable property whether in himself or any other person, or
(iv) ...
(v) ...
(vi) ...
(vii) ...
(viii) ...
(ix) ...
(x) ...
(xi) creating panic, alarm or terror in public, or
(xii) ...
(xiii) ...
(xiv) ...
(xv) ...
12. It will be seen that the accused Uma Kant and his son Dinesh demolished the house of the complainant in violation of law and they also used fire-arms to facilitates their acts, which created panic, alarm and terror in public. It can not, therefore, be said that there are no reasonable grounds for believing that these two accused-applicants are not guilty of an offence in the Act. They are consequently not entitled for bail under the U.P. Gangster Anti Social Activities (Prevention) Act, 1986.
13. The application of accused Uma Kant and Dinesh are accordingly rejected. Applicants Babu Lal, Narsingh Rai, Hori Lal Prajapati be released on bail on their each furnishing a personal bond of Rs. 20,000/- with one surety in the like amount to the satisfaction of the court concerned.
