N.K. Mehrotra, J.@mdashHeard the learned counsel for the petitioner and the learned Additional Government Advocate for the State.
2. With the consent of both the parties, this petition is being disposed of finally at admission stage.
3. It appears that the petitioner was bailed out by this Court in Crime No. 184 of 2003, under Sections 147, 148, 149, 307, 427, 302, 504, 336,
I.P.C. and Section 7 of Criminal Law Amendment Act and 3/4 of Prevention of Public Property and Damages Act. After a period of four months,
a new Section 3 (1) of U. P. Gangster Act was added in the same crime. In the Gangster chart only two cases were shown ; one in Crime No.
184 of 2003 and another in Crime No. 183 of 2003 and in both the offences the petitioner is on bail. The petitioner instead of moving for his bail
on the basis of the earlier order of this Court has preferred the instant petition u/s 482 of the Code of Criminal Procedure. The correct procedure
would have been that the petitioner must have applied for bail before the Special Judge, U. P. Gangster Act, Faizabad and the learned Special
Judge, U. P. Gangster Act after taking notice of the fact that in the same offence in Crime No. 184 of 2003, the petitioner has already been
granted bail, must have enlarged him on bail after taking fresh ball bonds for the purpose of ensuring the attendance of the petitioner in the trial
under the U. P. Gangster Act.
4. The bail is granted in an offence. The offence is defined in Section 2(n) of the Code of Criminal Procedure. Word ''offence'' is a comprehensive
term embracing every act committed or omitted in violation of a penal law forbidding or commanding it to determine whether there is any offence
or not. It must be seen whether the act or omission is punishable by any law in force. The U. P. Gangster Act is imposed against a person who is
habitual criminal. No separate act or omission is required for imposing the provisions of U. P. Gangster Act. So, in my opinion, a person, who is a
habitual criminal and operates in a gang, can be punished u/s 3 (1) of the U. P. Gangster Act in addition to the offence which he has committed
under other provisions of Penal Code. Since imposition of Section 3 of the U. P. Gangster Act against a criminal is not a separate offence as
defined under the Criminal Procedure Code and it is only an addition of a separate section under special Act on the basis of the same act or
omission which amounted to an offence punishable under Sections 147, 148, 149, 307, 427, 302, 504, 336, L.P.C. and Section 7 of Criminal
Law Amendment Act and 3/4 of Prevention of Public Property and Damages Act but even then if a person operates in a gang for commission of
that offence, he can be punished separately u/s 3 (1) of the U. P. Gangster Act in addition to the offence punishable in the aforesaid sections.
5. In view of this legal position and because the U. P. Gangster Act is imposed in the same crime which he has committed after being member of a
gang, the petitioner can be bailed out after taking notice that he is on bail in the main offence for which the Gangster Act is being imposed.
6. In view of the above, this petition is disposed of finally at admission stage with the direction to the Special Judge U. P. Gangster Act, Faizabad,
that if, the petitioner moves for his enlargement on ball u/s 3 (1) of the U. P. Gangster Act, he shall be enlarged on bail on the basis of the earlier
bail order in his favour in Crime No. 184 of 2003 after taking the fresh bail bonds for the purpose of remaining on bail u/s 3 (1) of the U. P.
Gangster Act to his satisfaction.