Hussain v. State

Applicant :- Ayushi Mittal Opposite Party :- State of U.P. Counsel for Applicant :- Dileep Kumar Yadav,Swetashwa Agarwal,Virendra Kumar Srivastava,Yash Raj Verma Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.

1. Counter affidavit filed by learned counsel for the respondent is taken on record.

2. Heard learned counsel for the applicant and learned A.G.A. for the State-respondent and perused the material available on record.

3. Learned counsel for the applicant submits that a case under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 Police Station Surajpur, District Gautam Budh Nagar has been registered against the applicant and co-accused persons on the basis of gang chart annexed with the FIR, wherein five criminal cases are shown to be registered against the applicant, which are of similar nature. The applicant has been enlarged on bail by order of this Court in all cases mentioned in gang chart. This is the first bail application of the applicant before this Court in connection with said case. In the present case remand of the applicant was taken on 29.06.2021, therefore, the applicant is held in jail custody around four years. The offence is punishable for maximum terms of ten years imprisonment and minimum sentence of two years imprisonment has been provided in the offence. Thus applicant has already undergone more than minimum sentence provided for the offence.

4. Learned counsel for the applicant next submitted that this applicant has been assigned criminal history of 230 cases, apart from those cases mentioned in gang chart, the criminal history of the said cases have been duly explained in paragraph No.10 of the affidavit accompanied with bail application. Most of the cases are registered in District Meerut, and some cases are registered in District Bulandshahar, Hapur, Ghaziabad, Gautam Budh Nagar, Saharanpur, Bijnaur, Moradabad, Etawa, Bagpat, Kasganj and Farrukhabad. The applicant has been enlarged on bail in all those cases by orders of trial court as well as in some cases by order of this Hon'ble Court. All these cases are of similar nature and registered against her by customers of the Company M/s Ablaze Info Solution Pvt. Ltd.

5. It is relevant to mention that M/s Ablaze Info Solution Pvt. Ltd., is a company established in 2010 and was doing business of advertisement through website. Initially, there were two directors of the company namely Anubhav Mittal and Sunil Mittal. Applicant had married to Anubhav Mittal on 07.12.2015 and subsequently, Sunil Mittal had tendered his resignation from the post of Director due to old age and health issues, and thereafter as per legal requirement present applicant Ayushi Agarwal, being wife of Anubhav Mittal joined the Company as Director on 03.03.2016 alongwith Anubhav Mittal (husband). She is a graduate and mostly takes care of his house hold and family affairs. She is not specialized to conduct business done by the Company Ablaze Info Solution Pvt. Ltd. She was made Director of the Company by her husband Anubhav Mittal in casual and formal manner only to complete the legal requirement of the company, when his father Sunil Kumar Mittal resigned the post. He next submitted that applicant had no involvement in the matters of Company, she neither takes a decision or gives any suggestion to the company. She did not receive any benefit or salary from the Company except holding the post of Director. All the decision of the Company have been taken by her husband Anubhav Mittal, and the company was being run by her husband.

6. In the present FIR there is no direct allegation against the applicant. The Company was closed due to seizure by Enforcement Directorate. The Enforcement Director, Lucknow Zonal Office, has registered as Case bearing ECIR No.01/LKZO/2017/AD(SK) on 04.02.2017 on the basis of two FIRs against the Company i.e. Crime No.093 of 2017, Under Section 420 IPC, P.S. Surajpur, District Gautam Budh Nagar and Crime No.0163 of 2017, under Sections 420, 406 of IPC, P.S. Phase-III, District Gautam Budh Nagar (UP). After lodging of ECIR by ED a provisional attachment order was passed on 31.03.2017, wherein various movable and immovable properties of the company and individual were attached. The said provisional attachment order was confirmed by the adjudicating authority under PMLA Act. Due to seizure of the property of the Company, the company has become incapable of making payment of money or to transfer money to its customers from the account of the Company. As the activity of the Company has been banned, it creates doubt in the mind of the customers which resulted in lodging of a large number of FIRs by the customers, at their local police stations with regard to similar matter.

7. The present FIR is also a result of said facts situation due to adjustment of continuous properties and money, and he is not able to pay back the amount of the customers. The co-accused Anubhav Mittal, the Director of the Company is also held in jail custody. The applicant is not a founding of active Director of the Company. The applicant under takes to abide abide by the conditions of bail, in case she grants liberty of bail. Her case is distinguishable from co-accused Anubhav Mittal, her husband, who was running affairs of the Company alone, without participation of the applicant.

8. Learned counsel for the applicant lastly submitted that trial of the case is not likely to be concluded in near future. No custodian interrogation of the applicant is required, as she was already in jail custody for a long time. No useful purpose of law will be served by lodging the applicant in jail any further. She undertakes to abide by the conditions of bail, in case she granted liberty of bail.

9. Per contra, learned A.G.A. submitted that applicant is having long criminal history of similar nature of offences arising out of her capacity, as a Director in Ablaze Info Solution Pvt. Ltd., registered officer Noida, Gautam Budh Nagar. The Company has cheated large number of customers and their money which was invested in the Company and applicant is Director of the Company alongwith her husband Anubhav Mittal and she cannot shirk her responsibility incurred in that capacity. He also submitted that Section 19(4) of the of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 creates a statutory bar on grant of bail, in a case under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 without fulfillment of conditions mentioned therein.

10. The Hon'ble Supreme Court in a recent decision of Mohammad Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No. 915 of 2023 observed as under:- "12. …...We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right 10 [1994] Supp. 4 SCR 386: (1994) 6 SCC 731 guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters."

11. Considering the rival submissions of the parties, gravity of the offence and punishment which may be inflected on in case of conviction, and keeping in view the fact that applicant is a woman and wife of main accused, she is held in jail custody for around four years, thus without expressing any opinion on merits of the case, I am of the view that the applicant is entitled to be released on bail.

12. Let the applicant- Ayushi Mittal, who is involved in Case Crime No.418 of 2018, under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 Police Station Surajpur, District Gautam Budh Nagar, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A IPC. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against her, in accordance with law, under Section 174-A IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against her in accordance with law.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 21.5.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad

Applicant :- Ayushi Mittal Opposite Party :- State of U.P. Counsel for Applicant :- Dileep Kumar Yadav,Swetashwa Agarwal,Virendra Kumar Srivastava,Yash Raj Verma Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.

1. Counter affidavit filed by learned counsel for the respondent is taken on record.

2. Heard learned counsel for the applicant and learned A.G.A. for the State-respondent and perused the material available on record.

3. Learned counsel for the applicant submits that a case under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 Police Station Surajpur, District Gautam Budh Nagar has been registered against the applicant and co-accused persons on the basis of gang chart annexed with the FIR, wherein five criminal cases are shown to be registered against the applicant, which are of similar nature. The applicant has been enlarged on bail by order of this Court in all cases mentioned in gang chart. This is the first bail application of the applicant before this Court in connection with said case. In the present case remand of the applicant was taken on 29.06.2021, therefore, the applicant is held in jail custody around four years. The offence is punishable for maximum terms of ten years imprisonment and minimum sentence of two years imprisonment has been provided in the offence. Thus applicant has already undergone more than minimum sentence provided for the offence.

4. Learned counsel for the applicant next submitted that this applicant has been assigned criminal history of 230 cases, apart from those cases mentioned in gang chart, the criminal history of the said cases have been duly explained in paragraph No.10 of the affidavit accompanied with bail application. Most of the cases are registered in District Meerut, and some cases are registered in District Bulandshahar, Hapur, Ghaziabad, Gautam Budh Nagar, Saharanpur, Bijnaur, Moradabad, Etawa, Bagpat, Kasganj and Farrukhabad. The applicant has been enlarged on bail in all those cases by orders of trial court as well as in some cases by order of this Hon'ble Court. All these cases are of similar nature and registered against her by customers of the Company M/s Ablaze Info Solution Pvt. Ltd.

5. It is relevant to mention that M/s Ablaze Info Solution Pvt. Ltd., is a company established in 2010 and was doing business of advertisement through website. Initially, there were two directors of the company namely Anubhav Mittal and Sunil Mittal. Applicant had married to Anubhav Mittal on 07.12.2015 and subsequently, Sunil Mittal had tendered his resignation from the post of Director due to old age and health issues, and thereafter as per legal requirement present applicant Ayushi Agarwal, being wife of Anubhav Mittal joined the Company as Director on 03.03.2016 alongwith Anubhav Mittal (husband). She is a graduate and mostly takes care of his house hold and family affairs. She is not specialized to conduct business done by the Company Ablaze Info Solution Pvt. Ltd. She was made Director of the Company by her husband Anubhav Mittal in casual and formal manner only to complete the legal requirement of the company, when his father Sunil Kumar Mittal resigned the post. He next submitted that applicant had no involvement in the matters of Company, she neither takes a decision or gives any suggestion to the company. She did not receive any benefit or salary from the Company except holding the post of Director. All the decision of the Company have been taken by her husband Anubhav Mittal, and the company was being run by her husband.

6. In the present FIR there is no direct allegation against the applicant. The Company was closed due to seizure by Enforcement Directorate. The Enforcement Director, Lucknow Zonal Office, has registered as Case bearing ECIR No.01/LKZO/2017/AD(SK) on 04.02.2017 on the basis of two FIRs against the Company i.e. Crime No.093 of 2017, Under Section 420 IPC, P.S. Surajpur, District Gautam Budh Nagar and Crime No.0163 of 2017, under Sections 420, 406 of IPC, P.S. Phase-III, District Gautam Budh Nagar (UP). After lodging of ECIR by ED a provisional attachment order was passed on 31.03.2017, wherein various movable and immovable properties of the company and individual were attached. The said provisional attachment order was confirmed by the adjudicating authority under PMLA Act. Due to seizure of the property of the Company, the company has become incapable of making payment of money or to transfer money to its customers from the account of the Company. As the activity of the Company has been banned, it creates doubt in the mind of the customers which resulted in lodging of a large number of FIRs by the customers, at their local police stations with regard to similar matter.

7. The present FIR is also a result of said facts situation due to adjustment of continuous properties and money, and he is not able to pay back the amount of the customers. The co-accused Anubhav Mittal, the Director of the Company is also held in jail custody. The applicant is not a founding of active Director of the Company. The applicant under takes to abide abide by the conditions of bail, in case she grants liberty of bail. Her case is distinguishable from co-accused Anubhav Mittal, her husband, who was running affairs of the Company alone, without participation of the applicant.

8. Learned counsel for the applicant lastly submitted that trial of the case is not likely to be concluded in near future. No custodian interrogation of the applicant is required, as she was already in jail custody for a long time. No useful purpose of law will be served by lodging the applicant in jail any further. She undertakes to abide by the conditions of bail, in case she granted liberty of bail.

9. Per contra, learned A.G.A. submitted that applicant is having long criminal history of similar nature of offences arising out of her capacity, as a Director in Ablaze Info Solution Pvt. Ltd., registered officer Noida, Gautam Budh Nagar. The Company has cheated large number of customers and their money which was invested in the Company and applicant is Director of the Company alongwith her husband Anubhav Mittal and she cannot shirk her responsibility incurred in that capacity. He also submitted that Section 19(4) of the of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 creates a statutory bar on grant of bail, in a case under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 without fulfillment of conditions mentioned therein.

10. The Hon'ble Supreme Court in a recent decision of Mohammad Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No. 915 of 2023 observed as under:- "12. …...We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right 10 [1994] Supp. 4 SCR 386: (1994) 6 SCC 731 guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters."

11. Considering the rival submissions of the parties, gravity of the offence and punishment which may be inflected on in case of conviction, and keeping in view the fact that applicant is a woman and wife of main accused, she is held in jail custody for around four years, thus without expressing any opinion on merits of the case, I am of the view that the applicant is entitled to be released on bail.

12. Let the applicant- Ayushi Mittal, who is involved in Case Crime No.418 of 2018, under Section 2/3 of U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 Police Station Surajpur, District Gautam Budh Nagar, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A IPC. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against her, in accordance with law, under Section 174-A IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against her in accordance with law.

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 21.5.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad