The Supreme Court on Thursday censured the UP government saying it was not a “prosecutor but a persecutor” for including defunct cases in its reply against the petitioners in a case registered under the state’s anti-gangsters law.
A bench of Justices B R Gavai and K Vinod Chandran referred to the state’s affidavit on the plea by one of the accused persons and questioned why it had cases against him that were either quashed or in which he was acquitted.
“In the counter, you are including the cases which are quashed and where he (petitioner) is acquitted. If that is your modus operandi, then you are not a prosecutor, then you are a persecutor,” the bench said.
The court therefore granted bail to four persons facing charges under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
The bench went on to ask the UP government, “If he (petitioner) is already released on bail in some matters, if some proceedings are quashed, if in some proceedings, he is acquitted… was it not necessary for you to have placed the factual position before this court?”
The order was passed while hearing four separate pleas filed by the accused who challenged the November 2024 orders of the Allahabad High Court rejecting their bail applications.
Senior advocate Sidharth Luthra, appearing for the petitioners, said the petitioners were brothers and were framed in the cases lodged after 2017 as their father was an MLC belonging to a political party.
He said the modus operandi operated by the state was that when the petitioners got bail in one matter, they were booked in another FIR to ensure they never got the reprieve.
Luthra referred to the state’s affidavit pointing out that one of the petitioners was involved in 28 FIRs whereas others had 15 FIRs against them.
He said in most cases the state relied on to oppose the bail on the ground of criminal antecedents, the petitioners were either acquitted or released on bail and in some cases, the apex court had quashed the proceedings against some of them.
“I am sorry to say this. There is a consistent conduct of the state authorities that they keep on registering FIRs. I don’t know whether my client is safer in jail or outside,” Luthra said.
The counsel representing the state government opposed the bail pleas and said one of the cases lodged was for alleged gangrape.
The state’s counsel referred to Section 19(4) of the Act which says no accused should be released on bail unless the public prosecutor was given an opportunity to oppose the bail application and where the prosecutor opposes it, the court was satisfied that there were reasonable grounds for believing that the accused was not guilty of such offence and was not likely to commit any offence while on bail.
The bench said a chart placed before it showed the petitioners were involved in several cases but observed in most cases, the petitioners were either released on bail or acquitted.
“In some cases, this court has quashed the proceedings against the petitioners,” it added.
In the alleged gangrape case, the court said bail was granted by a trial court at Saharanpur in July 2022 but no step was taken by the state to seek its cancellation even after two-and-a-half-year.
Dealing with the state’s submission on Section 19(4) of the Act, the bench referred to the judgement delivered by the apex court in the case of Manish Sisodia and said it was held that statutory restrictions cannot override the constitutional guarantee provided under Article 21 of the Constitution.
The bench said it was held that prolonged incarceration couldn’t be permitted to be turned into a sentence without trial.
“In the present case, there is no likelihood of the trial being concluded in the near future. We are, therefore, inclined to allow the application,” it said.
The state’s counsel said the father of the petitioners fled the country and they might also flee.
Luthra however said their passports were already impounded.
“We direct the passport to be deposited with the trial judge so as to take care of the apprehension of the state,” the bench said.
It also directed the petitioners to regularly attend the trial proceedings and cooperate in its expeditious disposal.
The case, which was lodged against the petitioners in April, 2022 in Saharanpur district, involves illegal mining and illegal possession of public land.