Single judge rejected the applicant's second bail application. The court held that no new grounds were made out, noting the applicant's criminal history, role as a gang leader, and registration of a new FIR against him while in custody.
The application for second bail was rejected and dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1335 of 2019 Applicant :- Atique Ahmed Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra Sharma,Khan Saulat Hanif Counsel for Opposite Party :- G.A.,Gyan Prakash
Hon'ble Vipin Sinha,J.
Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ravindra Sharma and Sri Khan Saulat Hanif, learned counsel for the applicant, Sri Rajesh Mishra and Sri Yogendra Rai, learned A. G. A. for the State and Sri Gyan Prakash, learned Senior Advocate appearing for CBI.
Applicant has moved the present second bail application seeking bail in Case Crime No. 34 of 2005, under Sections 147, 148, 149, 307, 302, 120B, 506 I.P.C. and section 7 of Criminal Law Amendment Act, P.S. Dhoomanganj, District Allahabad. The bail earlier granted to the applicant was cancelled by this Court vide order dated 31.5.2017 passed in Crl. Misc. Bail Cancellation Application No. 38904 of 2016.
Though Sri Satish Trivedi, learned Senior Advocate has pressed the present second bail application, but nevertheless the fact remains that perusal of the record shows that the applicant was initially granted bail by another Bench of this Court vide order dated 12.4.2005, subsequently, the bail so granted to the applicant was cancelled by this Court vide order dated 31.5.2017 and since then the applicant is in jail.
Learned Senior Advocate appearing for the applicant contended that the Apex Court while dealing with the case of Pooja Pal “known as Raju Pal's murder case” (Pooja Pal v. Union of India and other; 2016 (3) SCC 135 - relevant paragraph nos. 40, 41, 46, 47, 49, 97, 98, 99, 101, 102 and 103}), had issued specific direction with regard to submission of chargesheet and for de novo investigation within time frame fixed by the Apex Court. The further contention is that the applicant cannot be detained in jail for all times to come; till date the investigation has not been completed nor any chargesheet has been filed; it is not the case of the
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prosecution that the applicant has not been co-operating with the investigation but he has not disputed the fact that as on date the Apex Court is monitoring the investigation.
It has not been disputed that the Apex Court has called for a detailed report with regard to all pending cases against the applicant and the report has been submitted before the Apex Court. It has also not been disputed that the Apex Court has taken serious view of the conduct of the present applicant while he is confined in jail and keeping this conduct in mind and terrifying image of the applicant, the Apex Court had issued certain directions in the case of Ashwini Kumar Upadhyay and other v. Union of India (Writ Petition (Civil) No. 699 of 2016; order dated 23.4.2019) with regard to present applicant. It has also not been denied that while the applicant was in jail itself, another FIR was registered against him with regard to a heinous offence.
Much has been said by Sri Trivedi with regard to liberty of an individual and the violation of Article 21 of the Constitution of India in the present case, however, the fact remains that similar arguments were raised by Sri Trivedi while opposing the bail cancellation application and the same has been duly considered by this Court while passing the order dated 31.5.2017 passed in Crl. Misc. Bail Cancellation Application No. 38904 of 2016 by means of which the bail so granted to the applicant was cancelled and while cancelling the bail, this Court had taken a note of law as laid down by the Apex Court in its various judgements. Relevant extract of the order dated 31.5.2017 is being extracted herein below:
“25. Such sentiments were expressed much earlier as well by the Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors. (AIR) 1958 SC 376 in the following manner:
“6...There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run
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to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked...”
26. We are conscious of the fact that the respondent is only an under-trial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trail of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer. This is so beautifully captured by this Court in Masroor v. State of Uttar Pradesh & Anr. (2009) 14 SCC 286 in the following words:
“15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [(1987) 2 SCC 684] are quite apposite:
“6… Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private
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retribution.””
27. This very aspect of balancing of two interests has again been discussed lucidly in Neeru Yadav v. State of Uttar Pradesh & Anr. ((2014) 16 SCC 508 in the following words:
“16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second respondent? We are not oblivious of the fact that liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.
17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., Criminal Misc. Bail Application No. 31078 of 2014, decided on 22-9- 2014 (All)] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of
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justice, and accordingly we set it aside.”
28. In Ramesh & Ors. v. State of Haryana (2017) 1 SCC 529, which was decided only two days ago i.e. on 22.11.2016, this Court discussed the problem of witnesses turning hostile, and if that is for wrong reasons, observed that it affects the very fabric of criminal justice delivery system. We would like to reproduce following passages therefrom:
“44. On the analysis of various cases, following reasonscan be discerned which make witnesses retracting their statements before the Court and turning hostile:
“(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of witness.”
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: “witnesses are the eyes and ears of justice”. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.
46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
“11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise…Time has come for a comprehensive law being enacted for protection of the witness and members of his family.”
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47. Almost to similar effect are the observations of Law Commission of India in its 198th Report (Report on 'witness identity protection and witness protection programmes'), as can be seen from the following discussion therein:
“The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.”
Learned AGA has opposed the second prayer for bail by drawing the attention of the Court to the fact that while the applicant was in jail, he had continued to indulge in nefarious activities and it was with regard to such activity that an FIR dated 28.12.2018 has also been registered as FIR No. 0810 of 2018, Under sections 147, 149, 386, 329, 420, 467, 468, 471, 394, 506 and 120B IPC, Police Station Krishna Nagar, District Lucknow against the applicant and other accused with regard to an incident when allegedly some builders were kidnapped and brought inside the jail where applicant Atique Ahmed was detained and they were tortured and beaten. Thus, it appears that even while the applicant is in jail, he continues with his illegal and nefarious activities (a copy of the FIR has been provided to the Court by the learned AGA). The relevant contents of the said FIR are being extracted herein below:
^^udy rgjhj fgUnh oknh Vkbi'kqnk lsok es] Jheku iqfyl vf/k{kd egksn; y[kuÅ egksn;] izkFkhZ eksfgr tk;loky iq= Jh jke ujs'k tk;loky fuoklh 554[k@3[k@1 fo'ks'oj uxj vkyeckx y[kuÅ dk gWw
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izkFkhZ dk fj;y bLVsV dk O;kikj gS] ftldk irk 1@11 fojkV [k.M xkserh uxj y[kuÅ gS] izkFkhZ 'kkfUriwoZd <ax ls vPNs ls viuk O;kikj dj jgk FkkA vrhd vgen ¼iwoZ lkaln½ iq= Lo0 gkth fQjkst vgen fuoklh pfd;k bykgkckn tks fd ekStwnk le; es nsofj;k tsy es cUn gS] ds nokjk yxHkx nks lky iwoZ izkFkhZ ij vius dbZ xqxksZ ds lkFk feydj izkFkhZ ij tcju ncko cukdj QthZ /ku mxkgh ds fy, vR;kf/kd ncko cuk;k x;k FkkA izkFkh nokjk dqN /ku mxkgh esa fn;k Hkh x;k ftlds ckn ls dqN fnuks ds fy, vrhd vgen ¼iwoZ lkaln½ 'kkUr gks x;sA ijUrq fiNys yxHkx pkj ekg ls vrhd vgen ds nks xqjxs Qk:[k o tdh vgen izkFkhZ ds ikl vkdj vrhd vgen ds uke ls mxkgh djus dk iz;kl dj jgs gS ijUrq izkFkhZ nokjk dksbZ Hkh /ku ugh fn;k x;k ftlds ckn izkFkhZ dks Mjk /kedk dj fiNys nks ekg ls vrhd vgen ds mDr nksuks xqjxs Qk:[k o tdh vgen us izkFkhZ ds vkfQl ij viuk dCtk cukdj izkFkhZ dh dEiuh esa tcju viuk uke fy[kok fy;k gS] rFkk izkFkhZ eksfgr tk;loky o vkjrh tk;loky dk fMftVy gLrk{kj ¼ DSC ½ Hkh ys fy;k] bruk ncko gksus ds ckn Hkh izkFkhZ nokjk dEiuh esa mudks dksbZ 'ks;j VªkalQj ugh fd;k x;k fnukad 26-12-2018 dks iwoZ lkaln vrhd vgen dk ,d xqjxk izkFkhZ dks tcju izkFkhZ dh gh xkM+h Qkjpwuj ftldk uEcj ;w0 ih0 32 JR 1804 ls nsofj;k tsy vrhd vgen ds ikl ys tk;k x;k tgka igys ls gh vrhd vgen dk csVk mej o muds nl&ckjg xqjxs ekStwn Fks mUgh xqxksZ esa ls tQjmYykg o xqyke ljoj ftudk uke ogka iqdkjk tk jgk Fkk ds nokjk izkFkhZ dks tsy ds vUnj gh cgqr ekjk ihVk x;k ftlls izkFkhZ ds maxfy;ksa dh gfMM;ka VwV x;h gS rFkk 'kjhj esa cgqr lkjh vUn:uh o cgkjh pksVs Hkh vkbZ gSA ftlds ckn vrhd vgen ds n~okjk tcju izkFkhZ dh dEiuh ,e0ts0 bUÝk gkmflax izk0 fy0] ,e ts0 bUÝk xzhu izk0 fy0] ,e0 ts0 bUÝk yS.M ,y0 ,y0 ih0 o ,e0 ts0 bUÝk LVsV izk0 fy0 dks vius mijksDr of.kZr nksuks xqjxks Qk:[k o tdh vgen ds uke VªkalQj djok fy;k x;k rFkk izkFkhZ dh mDr xkM+h Qkjpwuj ftldk uEcj ;w0 ih0 32 JR 1804 dks Hkh izkFkhZ ls Nhu dj ogha [kM+h djk yh x;hA rFkk vrhd vgen o muds xqxksZ us eq>ls dEiuh ds 15&20 lkns ysVj gsM o mijksDr lHkh dEifu;ksa ds jaflxus'ku ysVj gsM ij eq>ls o esjk cgu ds gLrk{kj cuok;s eq>s Mjkrs /kedkrs gq, dgk viuh cgu ds Hkh gLrk{kj cukvks og Hkh mijksDr dEiuh;ksa esa funs'kd gS] eq>s etcwjh esa viuh cgu ds Hkh gLrk{kj cukus iM+s rFkk mu yksxks us esjs o esjh cgu ds fMftVy gLrk{kj Hkh ys fy;s Fks rFkk ge yksxks dks gekjh leLr mijksDr dEifu;ksa ls gVokdj viuk uke fy[kok fy;k gS] rFkk izkFkhZ dks tsy ls ;g dgrs gq, vrhd vgen o mlds csVs mej o muds xqjxks nokjk ;g dgrs gq, Hkxk fn;k x;k fd gjketkns rq>s etcwjh es ftUnk NksM+ jgk gWw D;ksafd tsy ds vUnj gR;k ugha dj ldrk gWw] ugh rks vkt rsjh cksfV;k dkV dj fcj;kuh cuok ysrk rFkk vrhd vgen vDlj vius xqxksZ dks vk/kh jkr ds oDr izkFkhZ ds ?kj Mjkus /kedkus gsrq Hkstk djrs gS vkSj izkFkhZ o izkFkhZ ds ifjokj dks tku ls ekjus dh /kedh fn;k djrs gS ftl dkj.k izkFkhZ o izkFkhZ dk ifjokj dkQh ihfM+r gSA vr% Jheku th ls fuosnu gS fd izkFkhZ dk izkFkZuk i= Lohdkj djrs gq, leLr nksf"k;ks ds f[kykQ mfpr dk;Zokgh djus dh dik djs o izkFkhZ dks lqj{kk iznku djus dh dik djs] izkFkhZ Jheku th dk vkHkkjh jgsxkA**
Learned AGA while opposing the bail application has also placed reliance upon the recent judgment of the Apex Court rendered in the case of Ashwini Kumar Upadhyay and other v. Union of India (Writ Petition (Civil) No. 699 of 2016; order dated 23.4.2019) which also pertains to applicant himself. The said order reads as follows:
“We have heard Mr. Vijay Hansaria, learned Amicus Curiae and Mr. Vinod Diwakar, learned Additional Advocate
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General appearing for the State of Uttar Pradesh.
The limited consideration in the proceedings today is with regard to the pending criminal cases against one Ateeq Ahmed. We have perused the details furnished by the learned Amicus Curiae in his Fifth Report and have considered the directions that have been sought.
On due consideration and having regard to the totality of the facts and circumstances of the case, the following directions are issued:
(1) Investigation with regard to the incident dated 26.12.2018 FIR No. 810 of 2018 would stand transferred to the C.B.I. who will submit quarterly Status Report of the progress of investigation to this Court.
(2) Jail officials prima facie involved in the incident dated 26.12.2018 in terms of the two reports of the State Government shall be suspended forthwith by the disciplinary authority and appropriate proceedings in law be registered against them.
(3) Ateek Ahmed shall be transferred to a jail in the State of Gujarat wherein Video Conferencing facilities are available.
(4) Cases pending against Ateeq Ahmed shall be expedited and the trial court is directed to submit quarterly Status Report of the progress of the trial to the Registry of the High Court of Allahabad.
(5) Witness protection in terms of the judgment of this Court in Mahender Chawla & Ors. vs. Union of India & Ors., 2018 (15) SCALE 497, shall be afforded without requirement of filing any application by the witnesses.
(6) The State Government shall within four weeks furnish status of the remaining 80 cases against Ateeq Ahmed (106 registered cases less 26 pending in courts.)”
The Court has been informed that even as per the news in the media some of the jail official of the said jail have already been placed under suspension and an inquiry has also been initiated.
It may also be appreciated that this Court while canceling the bail granted to the applicant had duly noted the fact that the applicant has a long criminal history as noted in the said order. It was also noted in the order dated 31.5.2017 that present applicant is a gang leader of a gang which consists 138 members and as per the gang chart which was produced before this Court at that stage, the applicant has criminal history of 71 cases apart from few other cases which were registered against the
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applicant thereafter.
In view of the aforesaid facts and circumstances, the previous criminal history and the fact that another FIR was registered against the applicant with regard to a heinous offence that too while the applicant was in jail and also looking to the fact that even while he is in jail he is posing threat to the society, no case for grant of any indulgence is made out.
It may also be noted that neither any new ground nor any subsequent development has been brought on record. Thus, in this view of the matter also, no indulgence can be granted to the applicant in a second bail application.
Accordingly, the second application for bail is rejected. Order Date :- 5.7.2019 Kuldeep
3 issues framed by the court
Whether bail can be granted to the applicant given his criminal history and threats to society
Whether new grounds were made out in the second bail application to justify release
Whether the interests of society and fair trial outweigh the interest of the accused
Colour shows how this judgement treated each authority
Pooja Pal v. Union of India and otherReferred¶8
Pooja Pal v. Union of India and other; 2016 (3) SCC 135 · Who else cites this
Ashwini Kumar Upadhyay and other v. Union of IndiaApplied¶11
Ashwini Kumar Upadhyay and other v. Union of India; Writ Petition (Civil) No. 699 of 2016
Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors.Explained¶13
Talab Haji Hussain v. Madhukar Purshottam Mondkar & Ors. (AIR) 1958 SC 376 · Who else cites this
Masroor v. State of Uttar Pradesh & Anr.Explained¶17
Masroor v. State of Uttar Pradesh & Anr. (2009) 14 SCC 286 · Who else cites this
Shahzad Hasan Khan v. Ishtiaq Hasan KhanExplained¶18
Shahzad Hasan Khan v. Ishtiaq Hasan Khan [(1987) 2 SCC 684] · Who else cites this
Neeru Yadav v. State of Uttar Pradesh & Anr.Explained¶22
Neeru Yadav v. State of Uttar Pradesh & Anr. ((2014) 16 SCC 508 · Who else cites this
Ramesh & Ors. v. State of HaryanaExplained¶27
Ramesh & Ors. v. State of Haryana (2017) 1 SCC 529 · Who else cites this
2 provisions across 2 enactments
Atique Ahmed
State Of U.P.
Vipin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
