A.P. Sahi, J. - (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. It has been pointed by the learned A.G.A on the basis of the instructions received that the applicant had a History of 31 criminal cases against him. Sri Misra on the basis of the instructions received has placed the details of all the criminal antecedents. It is alleged that out of 31 cases, the applicant has already been acquitted in 12 of the cases and in majority of the other cases final reports have been submitted, and the same have been either accepted or have to be accepted. More than half a dozen cases are of 1984 and 1986 and some of them are of the year 1988 and 1989, where after the applicant has been elected as a M.L.A. and has represented the people of that Constituency. Learned counsel for the applicant further contends that the applicant is not involved in any heinous crime and the cases which have been initiated against the applicant are all relating to either of bailable offences or triable by Magistrate and relate to the political carrier of the applicant. It is further submitted that keeping in view the provisions of Section 54 of the Indian Evidence Act and the law laid down by the Apex Court in the case of Ram Lakhan Singh v. State, 1977 SCC (Cri) 474, the alleged evidence which has been collected against the applicant cannot be successfully utilised to prosecute the applicant in so far as the background of the criminal history of the applicant is concerned and it cannot be said to be an impediment for the grant of bail to the applicant. Learned A. G. A. has vehemently opposed the bail application and has urged that the applicant has already been booked under the National Security Act and is sought to be prosecuted under the U.P. Gangsters Act. The applicant was an M.L.A., who has broken the law and is now seeking to contest the Election of an M.P. in the ensuing Elections. It is further submitted that if the applicant is granted bail, there is every likelihood of his misusing the bail keeping in view the background of the applicant.
(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. The aforesaid submissions advanced demonstrate that the co-accused including the applicant's brother have been bailed out. The applicant was part of a large demonstration the cause of which is stated to be a public cause, namely the murder of an Executive Engineer. The applicant belongs to the opposition and the political tenor of the incident cannot be ruled out. His criminal antecedents have been sufficiently and satisfactorily explained by the learned counsel with the aid of a detail chart. The possibility of excesses cannot be ruled out in such incidents either way. It would be a paradox to Jail a person and deny him bail if he rises and stands aloft for a public cause having put in sufficiently long years of public service through a political platform.;