Allahabad high court allows a bail application observing predicate offense isn't treatable under Gangsters act
The Allahabad High Court while allowing the bail application held that the victim of a predicate offence cannot be treated to be a victim of an offence under the Gangsters Act.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Ramesh Rai @ Matru Rai.
The application has been filed seeking release of the applicant on bail in Case under Section 3 (1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Chetganj, District Varanasi. A copy of the Gangchart accompanying the FIR mentions involvement of the applicant in four cases, one of which is Case under Sections 448, 386, 504, 506, 420, 120-B, 34 IPC and Sections 10 (i), 10 (ii), 22 and 23 of the Uttar Pradesh Regulation of Money-Lending Act, 1976, Police Station Chetganj, Commissionerate Varanasi.
Ajay Singh, Advocate has put in appearance on behalf of the informant of Case and he has sought to oppose the bail application.
Manish Tiwari Senior Advocate has opposed the intervention of the informant of Case in the case and he has submitted that the informant of Case does not fall within the definition of victim of the case and, therefore, he has no right to oppose the prayer for grant of bail to the applicant in the case.
He has further submitted that the Gangsters Act is a special enactment having an overriding effect on any other law, as provided by Section 20 of the Act.
Replying to the aforesaid objection, Ajay Singh has stated that although the case has been registered on the basis of an FIR lodged by the Inspector In-charge, the FIR mentions that the applicant is involved in commission of several offences.
The Court said that the question whether a victim of a predicate offence can claim a right of hearing to oppose the bail application of a person accused under the Gangsters Act has been dealt with by a coordinate Bench of the Court in Zeba Rizwan versus State of UP.
The Court observed that,
From the aforesaid discussion, it naturally follows that the term “victim” cannot be taken to be a synonym of the terms “complainant” or “informant” and “victim” need not be the complainant or informant of an offence. If a victim of a predicate offence can file appeal challenging an order granting bail in an offence under the Gangsters Act, he certainly has the right to have an opportunity to oppose the application for grant of bail in an offence under the Act and for that purpose, he will have to be treated as a victim of the offence under the Gangsters Act. Where the victim of a predicate offence has come forward to participate in the proceeding by making submissions in opposition of a bail application, he must be given an opportunity of hearing.
It appears that although Jagjeet Singh and Sudha Singh (Supra) have been taken note of by the Bench deciding Zeba Rizwan (Supra), the true purport of the aforesaid judgments has somehow escaped attention of this Court and, therefore, which utmost respect to the coordinate bench which decided Zeba Rizwan, I find myself unable to follow the law laid down in it, as it runs contrary to the law laid down by the Supreme Court in the aforesaid cases.
Since the FIR of the case mentions Case as one of the predicate offences forming basis of lodging of the FIR, and the informant claims to be a victim of the aforesaid predicate offence, he has to be treated as a victim of the offence and he has the right to make submissions in opposition of the bail application. It is interesting to note that even in Zeba Rizwan (Supra), after holding that the victim of a predicate offence was not the victim of the offence under the Gangsters Act, the Court provided him an opportunity of hearing before deciding the bail application.
The Court noted that,
In two of the three other cases mentioned in the gang-chart, the applicant has already been granted bail by the Session Judge Varanasi and in Case the applicant has been granted bail by the Chief Judicial Magistrate, Varanasi.
Arun Kumar Pandey, the AGA and Ajay Singh Advocate, the Counsel for the victim have opposed the prayer for grant of bail and they have submitted that the allegations against the applicant are of serious nature. However, they could not dispute the aforesaid aspects of the matter and the fact that both the other co accused persons have already been granted bail.
Manish Tiwari Senior Advocate has submitted that a perusal of the narration made in the FIR indicates that the applicant has been implicated in the case solely on the basis of perusal of records available with the police, and that too, during patrolling in a jeep, which prima facie indicates that the applicant has been implicated by the police without any material against him to establish that he is a gangster.
The Court further observed that,
Upon scrutinizing the facts of the case in light of the aforesaid law, what prima facie appears at this stage is that although the FIR alleges because of the terror of the gang, of which the applicant is a member, no person comes forward to lodge a complaint against them, numerous FIRs have been filed against the applicant.
The informant of Case has not only filed an FIR against the applicant, but he has even come to oppose the bail application of the applicant in the case.
The applicant has already been granted bail in all the cases mentioned in the Gang-chart and in four other cases in which he is involved, he stands acquitted in four cases, the police has filed final reports in two cases and a complaint filed against him stands rejected and there is no material indicate that the larger interest of the public or the State would be affected in case the applicant is enlarged on bail.
‘Both the other co-accused persons have already been granted bail in the case and the allegations leveled in the FIR against all the accused persons are the same and, therefore, the applicant is entitled to claim his release on bail on the ground of parity also.
In view of the aforesaid discussion, without expressing any opinion on the merits of the case, the Court is of the view that the applicant is entitled to be released on bail’, the Court also observed while allowing the bail application.
The Court ordered that,
Let the applicant Ramesh Rai @ Matru Rai be released on bail in Case under Section 3 (1), Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Chetganj, District Varanasi, 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 dates 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.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before the Court seeking cancellation of bail.