KAMLESH PATHAK Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Mr. Saghir Ahmad, learned Senior Advocate assisted by Mr. Raghav Arora, learned counsel for the applicant, Mr. Arbind Kumar, Mr. Deepak Mishra and Mr. Rabindra Kumar Singh, learned Additional Government Advocates appearing for the State of U.P. as well as Mr. Anil Tiwari, learned Senior Counsel assisted by Mr. Anurag Shukla, learned counsel appearing on behalf of complainant of [double murder case (crime No. 189 of 2020) filed against the applicant and his associates].

(2.) Brief facts of the case which are required to be stated are that a first information report under Sec. 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act was lodged on 11/7/2020 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 Crime No. 189 of 2020, under Ss. 147, 148, 149, 302, 307, 506 I.P.C. and Sec. 7 of Criminal Law Amendment Act and Case Crime No. 196 of 2020 under Ss. 147, 148, 149, 353, 307 I.P.C. and Sec. 7 of Criminal Law (Amendment) Act registered against him and others on 11/6/2020 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 15/3/2020, an advocate Manjul Chaube and his sister Sudha Chaube was brutally murdered by firing in brought day light 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. 2.2-After investigation police Report (charge-sheet) under Sec. 173 (2) Cr.P.C. has been submitted against the applicant and other accused persons on 11/6/2020 and they are facing trial. 2.3-The first bail application of the applicant was rejected by detail order of the coordinate Bench of this Court dtd. 23/2/2023 in Criminal Misc. Bail Application No. 21738 of 2022. 2.4-The above order dtd. 23/2/2023 was challenged by the applicant before Hon'ble the Apex Court by means of Petition(s) for Special Leave to Appeal (Crl.) No. 3438 of 2023, which was dismissed by the Hon'ble Supreme Court vide order dtd. 8/5/2023, leaving it open to the petitioner to renew his request of bail after completion of three months. 2.5-Thereafter second Miscellaneous Application No. 1855 of 2023 in SLP (Crl) No. 3438 of 2023 was preferred by the applicant before Hon'ble 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. 2.6-In view of the above, the instant second bail application under Sec. 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 462 of 2020 (Sessions Case No. 352 of 2021-State Vs. Kamlesh Pathak and Others) under Sec. 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, Court No.-II, Auraiya.

(3.) Main substratum of argument of Mr. Saghir Ahmad, learned Senior Counsel for the applicant is that the applicant is Ex-MLC, who is in jail in the present case since 14/7/2020, but his trial has not yet been concluded and till date out of sixteen prosecution witnesses, only six prosecution witnesses of charge sheet have been examined before the trial court. As on date, applicant is on bail in all pending criminal cases against him except in the present case and one co-accused Avanish Pratap Singh has been granted bail, therefore applicant is entitled to be released on bail.