Allahabad High Court
Mohd. Irshad Alias Guddu vs State Of U.P. And 2 Others on 25 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:175387
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 47699 of 2019
Mohd. Irshad Alias Guddu
.....Applicant(s)
Versus
State Of U.P. And 2 Others
.....Opposite Party(s)
Counsel for Applicant(s)
:
Mohammad Firoz Khan, Rajesh Kumar Singh, Syed Mohammad Abbas Abdy
Counsel for Opposite Party(s)
:
Atipriya Gautam, Devesh Mishra, G.A., Vinod Kumar Mishra
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Shri Syed Mohammad Abbas Abdy, learned counsel for the applicant and Shri S.P. Singh, learned State Law Officer for the State, Sri Gyan Chandra Shukla holding brief of Shri Devesh Mishra, learned counsel for opposite party no. 2.
2. The counsel for the rival parties has made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. The case of the applicant is that a first information report being FIR No. 0598 of 2017, dated 05.10.2017, under Sections 386, 307, 420, 506 IPC stood lodged by the opposite party no. 2 against the applicant herein alongwith non-applicant- Mohit Verma, Ashish Srivastava with an allegation that the first informant has a shop in Indra Bhavan, Prayagraj with respect to fast food cart in the basement and the applicant herein along with other co-accused are also having shop and they had committed the offence of extortion while demanding an amount of Rs. 15,00,000/- and the said fact can be verified from the Abdi Thekhedar and Mohd. Saleem and on 25.09.2017, the applicant herein along with other accomplished with the intent of attempting to commit murder, attacked and assaulted the opposite party nos. 2 and 3, however, as the good luck would prevail, they could rescue themselves and one of the Sub-Inspector of the police came there and he also tried to exert pressure upon the first informant so as to create a situation to facilitate the ends and the aims of the applicant and FIR had been lodged under Sections 386, 307, 420, 506 IPC. Thereafter on the basis of the conversation between the Abdi Thekhedar and Mohd. Saleem, the provisions of Section 66 IT Act came to be inserted, however, post investigation, a chargesheet came to be submitted on 25.09.2018 under Sections 386, 506 IPC against the applicant and under Section 506 IPC against the other co-accused. Thereafter the applicant preferred Application U/S 482 No. 7845 of 2019 wherein on 07.03.2019, this Court granted liberty to the applicant to prefer discharge application and til the disposal of the same, protection was accorded. Post obtaining the said order, the applicant preferred discharge application which came to be rejected by the court of Chief Judicial Magistrate, Allahabad in case No. 13097 of 2018 on 14.11.2019.
4. Questioning the said order, the applicant has been filed the present application.
5. Learned counsel for the applicant has submitted that none of the allegations relatable to the lodging of the first information report which culminated into a chargesheet and further resulted in dismissal of the discharge application on 14.11.2019 has any legs to stand, particularly, when offences are not made out. Submission is that though first information report came to be lodged against the applicant under Section 386, 307, 420, 506 IPC but on the basis of the conversation between the Abdi Thekhedar and Mohd. Saleem, the provisions of Section 66 IT Act came to be inserted, however, post investigation, the chargesheet came to be submitted under Section 386/ 506 IPC. Contention is that even before the investigation when injury report was sought then it was not placed and that is why the proceedings under Section 307 IPC came to be dropped, followed by Section 66 of IT Act. Further the Section 420 of IPC was knocked off.
6. Learned counsel for the applicant has submitted that once the entire basis of lodging of the first information report rest upon the allegations regarding attempting to commit murder on 25.09.2017 was made upon the applicant under Section 307 IPC stood knocked off then automatically the entire basis of the allegations stand obliterated. Submission is that ingredients of Section 506 IPC would also not be there, particularly, when the informant has submitted an affidavit which is a part of the case diary that post gathering of knowledge while making enquiries, the co-accused, Ashish Srivastava, Naveen Pandey and Mohit Verma and Amit Kumar had not committed any offence in that regard and he does not want to proceed again. Contention is also to the extent that with relation to attractions of the provisions of Section 383 IPC until and unless property is delivered, the offence is not to be made out and as per the version of the first information report and investigation which culminated into submission of the chargesheet, the property in question which was made a subject matter for extortion has not been delivered. Reliance has been placed upon the judgment in Isaac Isanga Musumba and others v. State of Maharashtra and others; (2014) 15 SCC 357. Learned counsel for the applicant has also submitted that order rejecting the discharge application cannot be said to be in accordance with law, particularly, when once certain issues are being sought to be raised in the discharge application then they have to be considered this way or that way and the same cannot be avoided as conveniently as the Court while deciding the discharge application is not to act as a post office. Reliance has been placed upon the judgment in the case of Sanjay Kumar Rai v. State of Uttar Pradesh and another; 2021 LawSuit (SC) 311. Learned counsel for the applicant that submits that the order rejecting the discharge application be set aside and matter be remitted back to the court below to pass fresh orders.
7. Shri Gyan Chandra Shukla, advocate holding brief of Shri Devesh Mishra as well as Shri S.P. Singh, learned State Law Officer for the State while countering the submissions so made by learned counsel for the applicant has submitted that from the perusal of the first information report, it would reveal that offences have been committed by the applicant with relation to the offences under Section 386 and 506 IPC as according to him, there is a clear cut allegation of demand of Rs. 15,00,000/- as extortion. He has further submitted that threatening was also administered and the ingredients of Section 506 IPC are already there in the first information report might be on the basis of the telephone conversation, the Section 66 IT Act came to be inserted and the chargesheet came to be submitted under Sections 386 and 506 IPC exonerating the applicant with respect to the provisions contained under Section 307, 420 and 66 IT Act, the same may not be a factor to hold the applicant not guilty of the offences as the issues with the applicant seeks to raise are subject matter of trial.
8. I have heard learned counsel for the parties and gone through the records carefully.
9. Apparently, a first information report came to be lodged under Sections 386, 307, 420, 506 IPC against the applicant and the other co-accused by the first informant and on the investigation, a chargesheet came to be submitted on 25.09.2018 under Sections 386 and 506 IPC. The Application U/S 482 came to be preferred by the applicant in which on 07.03.2019, an order came to be passed in Application U/S 482 No. 7845 of 2019 preferred by the applicant for granting liberty to file a discharge application and post filing of the discharge application, the same came to be rejected. The relevant extract of the order dated 14.11.2019 passed by the Chief Judicial Magistrate, Allahabad deciding the discharge application is quoted hereinunder:
"???????? ?? ?????? ?? ?????? ?? ?? ???????? / ???????? ?? ?????? ?????? ???? ???????? ?? ?????? ????????????? ???????? ???? 482 ?????? 7845/2019 ??? ????? ???? ?????? 07.03.2019 ?? ??????? ??? ?? ????????????? ????? 28.3.2019 ?? ???????? ???? ??? ???
???????? 598/2017 ???? ????? ????? ????????? ???? 386/506 ?????? ???? ?????? ?? ?????? ??? ???????? ????? ??? ?????? ???????? ??? ????????? ???? ?? ???? ?????? ??? ??????? ??????? ???????? ??????? ?? ???? ?? ???????? ?? ??????? ???????? ??????? ???? ???? ???? ??????? ?? ???? ?? ???????? ???????? ?? ???????? ?? ?????? ?????? 14.11.2018 ?? ?????????? ???? ???, ????? ??????? ??????? ?????? ?? ??????? ??? ???????? ?? ?????? ??? ??????? ???? ???? ????? ???? ??????? ?????? ??? ???
????????????? ?? ???? ?? ?????? ???? ?? ?? ????????/???????? ?? ?????? ????????? ??? ?? ???? ?????? ??? ???????? ??? ???? ??????? ?? ??????? ???? ????????? ?? ?????? ??? ???????? ????? ????????? ?? ?????????? ?? ??????? ???? ??????? ???? ??? ????? ?? ??? ????????? ?? ??????? ???? ?? ???????? 598/2017 ???? ????? ????? ??? ???? ???? ??? ???
?? ?????? ??? ????? ????? ??????? ?? ????? ?? ???????? ???? ?????????? ?? ?????? ????????/???????? ?? ?? ?? ???? ????? ??? ?? ???? ?????? ???? ????????? ?? ??? ????? ??? ?? ????? ?? ???? ?? ??? ??? ???? ????? ???? ????? ???? ???? ???? ?? ???????? ?????? ?? ???????? ???? ???? ?????? ???????? ?? ?????? ???????? ????????? ????????? ?? ?? ????? ???? ??? ?????? ?? ???????? ??? ? ???? ?? ?????? ??? ?? ??? ??????? ??? ?? ??????? ?????? ???? ??? ?? ?? ???????? ?????? ????? ??? ???? ??? ???? ??? ???????? ?? ???? ????? ?? ? ?? ???????? ?? ?? ??? ?? ??? ???????? ???????? ???? ?? ????? ?????? ?? ?? ?? ?????? ??? ???? ???? ???? ?? ???????? ???? ?? ??????? ?? ???? ??? ??? ???????? ?? ??? ??????? ?????? ??? ?? ??? ?? ????? ?? ?? ??? ????????? ?? ???? ???????? / ???????? ???? ???????? ?????? ?? ???? ???? ?? ???????? ???? ???? ?????? ??? ???
???? ???????? ????????/???????? ?????? ????? ?? ????????????? ???????? ???? 156(3) ?????????? ?????? 153/12/2017 ??????? ???? ???? ?? ?????? ???? ??? ?? ?????? ???? ????????????? ?? ????? ???? ?? ?????? ??? ??? ??????? ???? ?????? ???????? ?? ?????? ???? ?????? ???
???? ???????????? ??? ????????? ?? ?? ???? ?? ?? ???????? ??????? ???? ????? ?? ?? ????????/???????? ?? ?????? ???? ????? ???? ???? ????? ?? ??? ???????? ?? ????? ???????? ????? ????????? ?? ???? ?? ?? ???????? ???? ???? ??????? ????????????? ???? ??? ???? ????????? ?? ??????? ??? ???? ??? ???
?????? / ???????? ?????? ???? ?? ????????? ?? ?????? ???? ?????? ?? ?????? ???? ?? ??? ???? ??? ?? ??????? ???? ????? 506 ?????? ???? ?????? ?? ???????? ??????? ???? ???? ????? ?? ?????? ???????? ?? ?????? ?? ????? ???? ?? ?? ????????? ?? ???? ???? ??? ???? ?? ?????????? ?????? ?? ?? ???? ?? ???? ?? ????? ???? ??? ??? ?? ???? ?? ???? ???? ??? ?? ???????? ??????? ???? ???? ?????? ?? ???? ?? ?? ???????? ?? ??? ??????? ???????? ?? ???? ???? ???? ???? ???? ?? ???????? / ???????? ?? ?????? ???? ???? ???
???? ?? ???? ?????? ??? ??? ???????? ????? ??????? ??? ???? 66 ?????????? ?? ?????? ??? ?? ??? ????????? ?? ?????? ?? ?? ???????? ?? ?? ??????-17 ??? ?????? ???? ??? ?? ???? ???????? ?? ???? ???? ???? ?? ??? ??? ???? ???? 66 ?????????? ??????? ??? ???? ??? ???? ?? ?????? ??? ???? ?????? ????????? ???? ????????? ?????? ?? ?????????? ?? ???? ?????? ???? ?? ?? ?? ???? ???
????????? ?? ?? ???? ?? ?????? ????????? ??? ???? ??????? ?? ???? ?? ?? ???????? ??????? ??? ???? ?? ?? ???????? / ???????? ?? ??????? ??? ????? ????? ??????? ??? ???? ?? ???? ?????? ???? ?? ??? ???? ???? ??? ???????? ?? ?????? ???????? ??? ???? ????? ????????? ?? ?????? ?? ?????? ?? ?? ???????? ??????? ????? ???? ?????? ??????? ?? ??????? ????? ??????? ???? 386/506 ?????? ???? ?????? ?? ????? ???? ?????? ?? ??? ??? ???? ??????? ??? ???? ?????? ?? ??????? ??? ?????? ?????? ???????? ?? ????? ???? ?????????? ?? ?????? ?????? ????? State of Orissa vs. Debendra Nath Padhi, 2005 (51) ACC 209 (Supreme Court - Three Judge Bench) ?? ????? ??? ?????? ?????? ???????? ?? ?? ???????????? ???? ?? ?? ???? ?????? ?? ????? ?? ?????? ??????? ??? ??????? ?? ????? ?? ??? ??????? ??????? ???? ???? ???? ?????, ????? ???????? ?? ???? ?? ??????? ???? ?? ??? ?????? ???? ????? ?? ????? ??????? ???? ?????? ???? ???? ???? ???? ???????? ?? ???? ????? ??? ?????? ?????? ?????? ???????? ?? State of Maharashtra vs. Salman Salim Khan, 2004 Cr.L.J. 920 (SC) ?? ????? ??? ?? ???????????? ???? ?? ?? ???? ?????? ?? ??? ???????? ??????? ?? ??????, ?????????? ??? ??????????? ?? ???????? ???? ?????? ?? ?? ????? ?? ???? ?? ???? ??? ?????? ?????? ???????? ?? Sanghi Brohters Pvt. Ltd. vs. Sanjay Chaudhary, (2008) 10 SCC 681 ??? Palwinder Singh vs. Balwinder Singh, 2009(65) ACC 399 (SC) ?? ????? ??? ?? ???????????? ???? ?? ?? ???????? ?? ?? ??????? ?? ??? ???? ?????? ???? ???? ???? ?????? ???? ????? ?? ??????? ????? ?? ????? ???? ???????? ??, ??? ???? ???????? ?? ????? ???????? ??????? ?? ???? ?? ??????? ????? ????? ?? ???? ?? ?? ?????? ???? ?? ???? ???
???????? ?????? ???? ??????? ????????????? ??? ???? ??? ???? ????????? ?? ?????? ?? ?? ?? ????????? ?? ????? ??????? ??? ???????? ?? ??????? ?? ??????? ?? ???????? ???? ?? ???? ???
???? ????? ???????? ?? ???? ?? ?? ???????? ?????? ?????? ???????? ?? ???? ?????? ???? ?????????? ?? ???? ???????? ?? ?? ?? ?? ?? ???????? ??????? ????? ???? ?????? ???????? ???? ???? ????? ???? ??, ?? ???? ??????? ????? ??????? ???? ?????? ???? ???????? ??????? ???????? ??? ??? ???????? ??????? ?? ?? ?? ???????? ??????? ????????????? ????? ???? ???? ????? ???
???????? ??????? ????? ???? ?????? ?????? ???????? ??????? ????????? ???? ????? ???? ???? ???
???????? ???? ????? ?? ???????? ??? ????????? ??? ?? ??????? ???
???????? ?????? 02.1.2020 ?? ?????? ?????? ?????????? ???? ??? ?? ? ??????? ??? ???????? ?? ????? ????? ??? ???"
10. A close reading of the order passed by the court below rejecting the discharge application would reveal that the contents so sought to be raised by the applicant with regard to the fact that since there was no delivery made to the accused person pursuant to threat, thus, no offences of extortion is made out while relying upon the judgment of Isaac Isanga Musumba and others (supra) has not been taken into account. The court below has not deliberated on the said issue and considered the said aspect of the matter. Moreover, though in the discharge application, the court below has narrated the stand taken by the respective parties but the issues with the applicant seeks to raise regarding the fact that though the first information report came to be lodged under section 386, 307, 420, 506 IPC and there happened to be insertion of the provisions contained under Section 66 of the IT Act pursuant to the conversation between the Abdi Thekhedar and the Mohd. Saleem but the chargesheet came to be submitted under Sections 386 and 506 IPC and not against the other sections. Since the aforesaid factors including the points which have been sought to be argued which goes to the root of the matter has not been considered by the court below and in view of the judgment of the Hon'ble Apex Court in Sanjay Kumar Rai (supra), the court below while deciding a discharge application has to apply his mind and not to have as post office, thus, the order in question cannot be sustained.
11. Moreover, at this stage, Shri Gyan Chandra Shukla, advocate holding brief of Shri Devesh Mishra has made a statement at bar as per the instructions received from the client that the order be set aside but a time bound direction be issued to pass a fresh orders.
12. Accordingly, the application decided in the following manner:
(a) The order dated 14.11.2019 passed by Chief Judicial Magistrate, Allahabad in Case No. 13097 of 2018 (State Vs. Mohd. Irshad alias Guddu and others) under Sections 386 and 506 IPC is set aside.
(b). The matter stands remitted back to pass fresh order strictly in accordance with law.
13. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 17.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.
14. It is provided that the code below shall pass fresh orders strictly in accordance with law.
(Vikas Budhwar,J.)
September 25, 2025
A. Prajapati
