KAMLESH PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Viresh Mishra, learned senior counsel assisted by Sri A.B. Shukla and Sri Amit Misra, learned counsel for the applicant and Sri Mewa lal Shukla, learned A.G.A. for the State.

(2.) THE applicant in case crime No. 487 of 2009 is sought to be prosecuted on the allegation that in an alleged procession at Tehsil Crossing, Auraiya, more than 100 people indulged in arson on 25.12.2008 at about 11.30 a.m. Learned counsel for the applicant contends that this group was staging a protest against State apathy in the murder of Executive Engineer Manoj Gupta, whereupon the police committed excesses and the applicant along with a large number of people have been implicated. It is urged that bail to 25 persons, who were arrested on the spot has been granted by the Court below, which also includes the brother of the applicant. It is alleged in the F.I.R. that 10 of the accused had fled away from the spot and out of them, nine have been bailed out and the applicant is stated to be one of those, who had fled away from the scene. It is further alleged that the mob took law into their hands and the records of the office of the Circle Officer have been burnt and destroyed but there is no entry in the G.D. and no estimate of the loss for damaging the public property was prepared. As a matter of fact the background of the case is one of malicious prosecution of the applicant, who happens to be an active Member of the Samajwadi Party and also has been a sitting M.L.A. in the previous term and is now a Candidate for the election of Member of Parliament from the same party in the ensuing Parliamentary elections. It is contended that on account of this, in order to block the political carrier of the applicant this criminal case has been instituted and the applicant has been implicated. It has further been submitted that the entire State administration has ganged up at the instance of the ruling party in power in order to see that the applicant is not released, whereas the nominations are to be filed for the Parliamentary Election in the Constituency concerned on 2.4.2009 and the Polling according to the Election Commission is scheduled on 23.4.2009. Learned counsel for the applicant contends that no weapon has been shown in the hands of the applicant, nor there is any allegation of exhortation, which could lead to the conclusion that the applicant had instigated the mob that had gathered. Learned counsel for the applicant contends that there are general allegations against the other accused persons, who have been bailed out.

(3.) IN the rejoinder Sri Misra has urged that the applicant will be presumed to be an innocent person unless and until the prosecution proves the guilt. The opposition by the State on the basis of the criminal antecedents of the applicant is erroneous, inasmuch as the law laid down by the Apex Court does not permit so. It is further submitted that so far as the taking of recourse of the State Authorities is concerned, it is urged since the applicant belongs to a Political rival party, the applicant has been implicated in several cases in order to block his political carrier. It is further submitted that keeping in view the aforesaid background, it is also to be kept in mind that the applicant is backed by a good academic career and is a Doctorate in Political Science. The criminal antecedents, that have been levelled, have to be viewed from this angle as well. The State is not expected to abuse its powers to implicate somebody out of political motives.