Mahboob vs State Of U.P.
2023 Latest Caselaw 21743 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:163522
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10246 of 2023
 

 
Applicant :- Mahboob
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amit Misra
 
Counsel for Opposite Party :- G.A.,Mohd. Afzal
 

 
Hon'ble Vikram D. Chauhan,J.

1. Learned A.G.A. submits that instructions have been received and he has no objection in case the bail application is heard on merits.

2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

3. It is submitted by learned counsel for the applicant that as per the first information report, it is alleged that the applicant has taken money from the informant who is running a dental clinic. On previous occasion also Rs. 10,000/- twice was taken. Learned counsel for the applicant submits that there is no date or time with regard to previous transactions nor any complaint with regard to the previous transactions of amount has been made. In so far in the present occurrence, only the demand is alleged to have been made by the applicant, however, no amount has been paid. Learned counsel for the applicant further submits that applicant is also alleged to have extended indecent behaviour with the wife of the informant. The submission of learned counsel for the applicant is that in the present case 386 I.P.C. is not attracted as the amount was never paid in pursuance of demand for extortion. it is alleged that on previous occasion, applicant has demanded amount of Rs. 10,000/- twice, however no date or time has been disclosed which itself shows that allegations are vague in nature. He further submits that at the best an offence under Section 385 I.P.C. would made out, which is a bailable offence. Criminal history of the applicant has been explained in paragraph no.11 of the affidavit. Applicant is languishing in jail since 21.12.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

Sri Sharhrukh, Advocate, appearing on behalf of the informant submits that applicant was caught on the spot for demand of extortion. However, he submits that amount was not paid by the informant. On a pointed query being made to learned counsel for the informant as to the date on which the previous transactions of Rs. 10,000/- were made, learned counsel for the applicant fairly submits that no date has come up in the investigation. He further relied upon the judgment of the Apex Court in Ram Prakash Pandey Vs. State of U.P. and Another to submit that if the accused person is previously convicted under non-bailable offence then he is not entitled to be released on bail.

4. Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case.

5. Learned AGA has pointed out the criminal antecedents of the Applicant. No material or circumstance has been brought to the notice of this court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:

"We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

6. In the case of Prabhakar Tewari Vs. State of U.P. and another 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against the accused may itself cannot be a basis for refusal of bail.

7. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

8. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned A.G.A. has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

9. No material, facts or circumstances has been shown by learned A.G.A. that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

10.It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

11. Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.

11A. It is to be seen that in the present case, the allegations are with regard to demand of extortion of amount, however, the amount was not paid. On previous occasion, informant alleges that Rs. 10,000/- twice has been paid, however, no date or time of the aforesaid transaction has been disclosed nor any complaint has been filed. It is further to be seen that only demand of money in the present case and as such since no amount has been transferred by the informant, the provisions of Section 386 I.P.C. will not come into play and as the best the aforesaid offence would be under Section 385 I.P.C. which is a bailable offence. Although, the applicant has been convicted previously, however, as per the admitted fact of both the parties, he has been enlarged on bail by this Court.

12. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

13. Let the applicant- Mahboob involved in Case Crime No. 929 of 2022, under Sections 386, 354, 323, 504 I.P.C. and Section 3/25 Arms Act, Police Station- Chandpur, District- Bijnor be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not pressurize/intimidate the prosecution witness.

(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.

(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(vi) The applicant shall not leave India without the previous permission of the Court.

(vii). In the event, the applicant changes his residential address, he shall inform the court concerned about his new residential address in writing.

14. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

Order Date :- 11.8.2023

Sumit Kumar