The Allahabad High Court has rejected the bail application of former Uttar Pradesh Legislative Assembly member Kamlesh Pathak, arrested under the Gangster Act.
A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc bail Application filed by Kamlesh Pathak.
By means of the bail application, the applicant seeks bail in Case under Section 3(1) of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station- Auraiya, District- Auraiya, during the pendency of trial.
As per prosecution story, Ram Sahai, Station House Officer, P.S Auraiya, District Auraiya along with other colleagues, in an official duty, was checking the vehicles and was involved in maintaining peace and order in the area and also to maintain lockdown in lieu of Covid-19 conditions by the order dated 11.07.2020 of District Magistrate.
He received information that Kamlesh Pathak is running an organized and active gang in the area as its’ leader. The members of the said gang are (i) Ramu Pathak (ii), Santosh Pathak, (iii) Kuldeep Awasthi @ Pappu, (iv) Vikalp @ Chenu Awasthi, (v) Rajesh Shukla (Bhagwatacharya), (vi) Avneesh Pratap Singh, (vii) Sonu @ Lovkush, (viii) Asheesh Dubey, (ix) Shivam Awasthi and (x) Ravindra @ Lalla Chaubey.
The said leader of the gang Kamlesh Pathak alongwith all the aforesaid members is involved in garnering illegal ransom, illegally possessing government land, fighting, firing and other illegal criminal activities etc. The applicant and his gang are not afraid of firing in broad daylight. The members of the gang had got the various cases instituted against them settled in the light of the said terror. Nobody dares to depose an oath in court against them whereby all those cases culminate into acquittals.
On 15.03.2020, Kamlesh Pathak and his gang members had caused the light murder of advocate Manju Chaubey and his sister Sudha Chaubey to take illegal possession of land. The public at large are so terrified of the members of the gang that nobody dares to come forward and speak or make a statement against them. Leaving them free, shall be against the interest of the public at large. The members of the gang keep on committing the offences referred in Sections 16, 17 and 22 of the UP Gangsters and Anti-Social Activities (Prevention) Act. Thus they usurped the properties of others and even instituted false cases against them.
It will be in the interest of the public at large to book the members of the gang under the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986. Thus, in view to put an end to the said anti-social activities of the gang, a gang chart has been prepared by him on 26.02.2020, which was sent for the sanction before the District Magistrate, Auraiya. After receiving the sanction from the office of the District Magistrate, Auraiya, the aforesaid eleven members of the gang were booked under Section 3(1) of UP Gangsters and Anti-Social Activities (Prevention) Act, 1986.
Senior Counsel for the applicant has stated that he has been booked owing to the political rivalry and has nothing to do with the said offence.
Senior Counsel has further stated that the applicant has been granted bail in the predicate offence in Case under sections 147, 148, 149, 302, 307, 506 IPC and Section 7 of Criminal Law Amendment Act, Police Station Kotwali Auraiya, District Auraiya.
In all, 37 cases have been instituted against the applicant.
Senior Counsel has further stated that he has been booked out of political vendetta as he is an ex-MLA and ex-minister belonging to the Samajwadi Party and is against the current political set up.
Senior Counsel has further stated there is no actus reus, which implies the guilty act, assigned to the applicant.
Senior Counsel has further stated that the rules have been framed in Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act in the year 2021 and the FIR is of the year 2020, as such the said rules are not applicable to the applicant.
Senior Counsel has further stated that the applicant is not a previous convict. The ingredients of Section 19 sub-clause 4 stands fulfilled and the applicant is entitled for bail. The applicant has been languishing in jail since 16.03.2020. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra, Senior Counsel for the informant in the predicate offence and A.G.A have vehemently opposed the bail application on the ground that the applicant is the person who very much qualifies to the definition of gangster defined under the Act and it has been at the outset stated that the bail granted to the applicant in the predicate offence of Section 302 IPC is without jurisdiction and has been challenged in the Apex Court by filing Special Leave to Appeal (crl) No(s) 6080 of 2022 dated 13.04.2022.
“The latin term ‘actus reus’ implies guilty act. Thus, it is the physical component of crime. It is true that there can be no offence without a criminal act. We have to consider mens rea alongwith actus reus. Actus reus is Latin for guilty act and mens rea is Latin for guilty mind. Both elements are required for the criminal act to be complete. The actus reus and the mens rea are to be inferred from the contents of the allegations made by the prosecution whereby the applicant is stated to be having criminal antecedents and in the said predicate offence, the applicant is stated to have exhorted the other co-accused persons to fire at the deceased and injured persons. Thus, the element of actus reus and mens rea are present in the said case and being a leader of the gang, the same find place in the case also.
With respect to a gangster, an inference can be drawn from the circumstances. The delinquent herein is a legislature aka an Exminister, but the same cannot absolve him of the activities committed impersonal.
It is true that under normal circumstances, if otherwise the case of the delinquent for bail is made out, the criminal antecedents are not to be considered, but herein the gravity of offence and the criminal antecedents that too the cases of murder, attempt to murder, attempt to dacoity and forgery etc weigh against the applicant.
It is true that there is a possibility of misuse of the legislation that too depends on the person executing it. The case does not seem to be a misuse of the act and the applicant having such a large criminal antecedents and being the head of the gang is not entitled for bail.
From the perusal of the record, I do not find that there are reasonable grounds for believing that the applicant is not guilty of such an offence and that he is not likely to commit any offence while on bail as is the requirement of Section 19(4) of the Act.
Considering the submissions advanced by the counsel for the parties, nature of allegations, gravity of offence and all attending facts and circumstances of the case, the Court is of the opinion that it is not a fit case for bail”, the Court observed while rejecting the bail application.