Gangster Act:Allahabad High Court rejects bail to former MLC Kamlesh Pathak

The Allahabad High Court has rejected bail to former MLC Kamlesh Pathak in a case registered in Auraiya under the Gangster Act.

A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Kamlesh Pathak.

The facts of the case are that a first information report under Section 3(1) of U.P Gangster and Anti-Social Activities (Prevention) Act was lodged on 11.07.2020 against the applicant, who is Ex-MLC and his other ten associates at Police Station Auraiya, District-Auraiya on the basis of two cases being Case under Sections 147, 148, 149, 302, 307, 506 I.P.C and Section 7 of Criminal Law Amendment Act and Case under Sections 147, 148, 149, 353, 307 I.P.C and Section 7 of Criminal Law (Amendment) Act registered against him and others on 11.06.2020 at Police Station Auraiya, District Auraiya.

In the first information report of this case, it is alleged inter alia, that gang leader Kamlesh Pathak (applicant) along with his gang members carry out criminal incidents like extortion, illegal encroachment of precious government land, assault, firing etc to maintain their dominance and terror in the society for their economic and worldly benefits. Many criminal cases are already registered against the applicant and his associates, which they got compromised due to their fear and influence. No one comes to testify against them due to their fear. They misused their position while being in government and got their cases closed.

On 15.03.2020, an advocate Manjul Chaube and his sister Sudha Chaube were brutally murdered by firing in daylight in order to grab the valuable land of “Panchmukhi Hanuman Temple” situated in Arya Nagar, Auraiya. Due to which, their fear, dread and terror has become so widespread among the public that no one from the public dares to speak and testify against them, therefore it is not in public interest for them to remain free.

Hence it is necessary to take action against them under U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986.

After investigation, a police Report (charge-sheet) under Section 173 (2) CrPC has been submitted against the applicant and other accused persons on 11.06.2020 and they are facing trial.

The first bail application of the applicant was rejected by detailed order of the coordinate Bench of the Court dated 23.02.2023.

The above order dated 23.02.2023 was challenged by the applicant before the Apex Court by means of Petition(s) for Special Leave to Appeal, which was dismissed by the Hon’ble Supreme Court vide order dated 08.05.2023, leaving it open to the petitioner to renew his request of bail after completion of three months.

Thereafter second Miscellaneous Application was preferred by the applicant before the Supreme Court, but the same was dismissed as withdrawn reserving liberty to the petitioner/ applicant to move High Court, if so advised, with the observation that if application for bail is filed by the applicant, the same shall be considered by the High Court as expeditiously as possible.

In view of the above, the instant second bail application under Section 439 of CrPC has been filed on behalf of the applicant with a prayer to release him on bail in Case under Section 3(1) of Uttar Pradesh Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station-Auraiya, District-Auraiya pending in the court of Additional District and Session Judge, Auraiya. 

The Court observed that,

Having heard counsel for the parties and examined the matter in its entirety, I find that it is not in dispute that the applicant has a long criminal history.

I also find that it is not in dispute that the applicant has a long criminal history of 37 cases behind him since 1974. The courts while releasing the accused-applicant on bail imposed one of the conditions in most of the bail orders that applicant will not further indulge in criminal activity, but it appears that in the eyes of the accused-applicant, such condition / direction is nothing but a mere formality, whereas said condition is also one of the criteria for considering bail in subsequent crime of the accused.

The Court is of the view that those who are protectors of the society being MP/MLA/MLC carry a big responsibility on their shoulders towards the public and they are not expected to commit crime or indulge in criminal activities causing dent to the healthy society in any manner. The higher the position, the greater is the responsibility towards the society at large. Taking into consideration the long criminal history of the applicant, other attending factors, surrounding circumstance of the case as well as possibility of tampering the witnesses and misuse of liberty, I do not find reasonable or good ground for believing to record my satisfaction in terms of provisions of Section 19 (4) (b) of U.P Gangster and Anti-Social Activities (Prevention) Act, that the applicant is not guilty of offence and will not further indulge in any criminal activity while being released on bail.

So far as submission on behalf of the applicant that the applicant has been granted bail in all the cases mentioned in gang chart and therefore he is liable to be granted bail in the case also is concerned, the same is not acceptable, because the offence punishable under Section 3 of U.P Gangster and Anti-Social Activities (Prevention) Act is an independent offence. Involvement of the accused in various other offences, in fact, constitute circumstances and evidence against him which may indicate that the accused is member or leader or organiser of a group which indulges in the kind of activities set out under the Gangster Act. The gravity of an offence under Section 3 of the U.P Gangster and Anti-Social Activities (Prevention) Act may vary from case to case, therefore no universal rule can be framed to grant bail to the accused for the offence under Gangster Act.

“The Court is also of the view that further detailed discussion relating to the incident and merit of the case need not be referred to herein since the allegations and the defence thereto is still open to be urged by the parties in the trial Court.

Considering the criminal history of the applicant, overall facts and other attending circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, severity of punishment, possibility of tampering the evidence and stage of the trial of the applicant as noted above, I do not find any good ground to release the applicant on bail”, the Court further observed while rejecting the bail application.

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