# Mohammad Ubaid v. State of U.P

- **Citation:** (2023) 8 ILRA 708
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-02
- **Case number:** Crl. Misc. Bail Application No. 30337 of 2023
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ubaid-v-state-of-u-p-50705
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 107 & 116 - Constitution
of India,1950 - Article 21 - Indian Penal
Code,1860 - Sections 147, 148, 323, 385,
386, 504 & 506- Bail Application - FIR -
charges under Sections 147, 148, 323, 504, 506,
386 of IPC - the allegations included extortion
and threats for payment of ₹2 crore - court
finds that, - no case beyond section 385 IPC
is made out - for punishment under Section
386 IPC, it has to be shown by prosecution
that there was delivery to any person any
property or valuable security or anything
signed or sealed, which may be converted
into a valuable security - Long drawn
previous enmity between the parties as both
parties have contested election for and both
belong to same village - and the applicant
had been in jail since April 9, 2023, and
there was no evidence of misuse of bail in
previous cases - held, offence u/Section 386
IPC has been slapped against applicant even
though ingredients of the same are not
available in FIR - counsel for informant has
failed to show as to how offence under
Section 386 IPC is made out against
applicant, demonstrate overreaching of the
police authorities by slapping cases of nonbailable in nature under Section 386 IPC
when only Section 385 IPC can at the best
be found against applicant, which is bailable
offence - Bail application is allowed -
directions issued, accordingly.(Para - 27, 28,
29)

Application Allowed. (E-11)

List of Cases cited:
8 All. Mohammad Ubaid Vs. State of U.P.
709

## Text

708 INDIAN LAW REPORTS ALLAHABAD SERIES
depending on the conduct and behavior of
the accused, continue after filing of the
charge sheet till end of trial.

20. It has been further held by the
Hon'ble Apex Court that while considering
an application for grant of anticipatory bail,
the court has to consider the nature of the
offence, the role of the person, the
likelihood of his influencing the course of
investigation, or tampering with evidence
including
intimidating
witnesses,
llikelihood of fleeing justice, such as
leaving the country, etc. It has further been
held that Courts ought to be generally
guided by considerations such as the nature
and gravity of the offences, the role
attributed to the applicant, and the facts of
the case, while considering whether to
grant anticipatory bail, or refuse it. Whether
to grant or not is a matter of discretion.

21. In view of the law laid down by
the Hon'ble Apex Court and taking into
account the enormity of the crime, I deem it
not a fit case to grant anticipatory bail to
the present applicant. Prayer made in the
application is refused.

22. The anticipatory bail application
is rejected.

23. However, it is clarified that the
views expressed in this order are limited
strictly only to the extent of grant of
anticipatory bail and are not concerned in
any way with the merits of the case and the
Court concerned is always at liberty to take
a different view of its own, as per law.
----------
(2023) 8 ILRA 708
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2023

BEFORE
THE HON'BLE VIKRAM D. CHAUHAN, J.

Crl. Misc. Bail Application No. 30337 of 2023

Mohammad Ubaid ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Imran Ullah, Sri Mohammad Daud

Counsel for the Respondent:
G.A., Mrs. Swati Agarwal Srivastava

Criminal Law - Criminal Procedure Code,
1973 - Sections 107 & 116 - Constitution
of India,1950 - Article 21 - Indian Penal
Code,1860 - Sections 147, 148, 323, 385,
386, 504 & 506- Bail Application - FIR -
charges under Sections 147, 148, 323, 504, 506,
386 of IPC - the allegations included extortion
and threats for payment of ₹2 crore - court
finds that, - no case beyond section 385 IPC
is made out - for punishment under Section
386 IPC, it has to be shown by prosecution
that there was delivery to any person any
property or valuable security or anything
signed or sealed, which may be converted
into a valuable security - Long drawn
previous enmity between the parties as both
parties have contested election for and both
belong to same village - and the applicant
had been in jail since April 9, 2023, and
there was no evidence of misuse of bail in
previous cases - held, offence u/Section 386
IPC has been slapped against applicant even
though ingredients of the same are not
available in FIR - counsel for informant has
failed to show as to how offence under
Section 386 IPC is made out against
applicant, demonstrate overreaching of the
police authorities by slapping cases of nonbailable in nature under Section 386 IPC
when only Section 385 IPC can at the best
be found against applicant, which is bailable
offence - Bail application is allowed -
directions issued, accordingly.(Para - 27, 28,
29)

Application Allowed. (E-11)

List of Cases cited:
8 All. Mohammad Ubaid Vs. State of U.P.
709
1. Harjit Singh Vs Inderpreet Singh @ Inder &
anr., Criminal Appeal No.883 of 2021 arising
from S.L.P. (Criminal) No.3739 of 2021

2. Ash Mohammad Vs Shiv Raj Singh, (2012) 9
SCC 446

3. Satyendra Kumar Antil Vs C.B.I.& anr., 2022
(10) SCC 51

4. Prabhakar Tewari Vs St. of U.P. & anr., 2020
(11) SCC 648

5. Isaac Isanga Musumba & ors. Vs St. of Mah.,
2014 (15) SCC 357

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

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

2. Heard learned counsel for the
applicant, Mrs. Swati Agrawal Srivastava,
learned counsel for the informant, learned
A.G.A. for the State and perused the
record.

3. It is submitted by learned counsel
for the applicant that the First Information
Report was lodged on 7.4.2023 in respect
of an incident dated 6.4.2023. As per FIR,
it is alleged that applicant has threatened
the informant for payment of extortion of
Rs.2 crore and has threatened for life. He
submits that the FIR has been lodged under
Sections 147, 148, 323, 504, 506 and 386
IPC and subsequently investigation has
been held and chargesheet has been
submitted under Sections 147, 148, 323,
504, 506 and 386 IPC. He submits that in
the present case, there is no delivery of
amount and even if the allegation as per
FIR is taken to be correct, no case beyond
section 385 IPC is made out. He further
submits that for punishment under Section
386 IPC, it has to be shown by prosecution
that there was delivery to any person any
property or valuable security or anything
signed or sealed, which may be converted
into a valuable security. He further submits
that there is a long drawn previous enmity
between the parties as both the parties have
contested the election for Pradhani and
both belong to same village. Learned
counsel for the applicant further submits
that applicant has previous history of 10
cases. However his submission is based on
the fact that even if the allegation of FIR is
taken to be true then only under Section
385 IPC would be made out which is
bailable offence.

4. Learned counsel for the applicant
further submits that on previous occasion,
bail was granted, however till date no bail
cancellation has been moved by the
informant as per the knowledge of
applicant for cancellation of bail in
previous cases. He submits that once it is
shown that offence is bailable then
applicant cannot be permitted to be remain
in jail only on the ground of previous
criminal history. He further submits that
long drawn criminal history against the
applicant is only on account of political
enmity. He relied upon para 21 of the
affidavit to submit that informant is the
witness of the sale deed of the land being
transferred in favour of the son of police
personnel, which itself is indicative of the
fact that the manner in which police is
being handled by the informant as friends.
It is further submitted that arrest of coaccused persons have already been stayed
by this Court in Criminal Misc. Writ
Petition No.7242 of 2023, copy of which
has
been
filed
at Annexure
No.10.
Applicant is languishing in jail since
9.4.2023 and in case he is released on bail,
710 INDIAN LAW REPORTS ALLAHABAD SERIES
he will not misuse the liberty of bail and
will cooperate in the trial.

5. Learned counsel for the informant
submits that applicant has criminal history
of 10 cases. She submits that on previous
occasion, FIR was lodged by the informant
against applicant where on account of
Pradhani election dispute, applicant is
harassing the informant and is demanding a
sum of Rs.2 crores. She has relied upon the
judgment of the Apex Court in Harjit
Singh Vs. Inderpreet Singh @ Inder and
another passed in Criminal Appeal
No.883 of 2021 arising from S.L.P.
(Criminal) No.3739 of 2021, to submit that
once there is a history of 10 cases,
applicant is not entitled to be released on
bail.

6. It is submitted by learned counsel
for the informant that when the first FIR
was lodged against applicant by the
informant and bail granted, the applicant
had
again
committed
crime
against
informant as a result of same, an
application was moved by the informant
before the police authorities on the basis of
which proceedings under Sections 107/116
Cr.P.C. was initiated. Learned counsel for
the informant submits that another FIR
being Case Crime No.44 of 2023 was
lodged in respect of assault made by the
applicant on informant, in which also
applicant was enlarged on bail. The
submission of learned counsel for the
informant is that in case the applicant is
released on bail, he might again commit
crime.

7. Learned A.G.A. for the State
opposed the prayer for bail and submits that
a demand of Rs.2 crore for extortion has
been made from Village Pradhan, who is a
elected representative. He submits that
applicant has been charge sheeted under
Sections 147, 148, 323, 504, 506 and 386
IPC and has previous criminal history.

8. Learned AGA for the State 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 Vs. 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."

9. 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 an accused may itself cannot
be a basis for refusal of bail.

10. 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 the basis of criminal
antecedents have been shown to deny bail
to accused, hence, the Court does not feel it
8 All. Mohammad Ubaid Vs. State of U.P.
711
proper to deny bail to the applicant just on
the ground that he had criminal antecedent.

11. 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 AGA has not
shown
any
exceptional
circumstances
which would warrant denial of bail to the
applicant.

12. 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
intimidating witnesses and the like have
been shown by learned AGA for the State.

13. Learned AGA 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.

14. On a pointed query being made to
learned counsel for the informant as well as
learned AGA as to whether offence under
Sections 385 IPC is bailable offence,
learned counsel for the informant as well as
learned AGA do not dispute the fact that
Sections 385 IPC is bailable in nature.

15. It is to be seen that in the present
case, allegation in the FIR are with regard to
demand of money by way of extortion for
sum of Rs.2 crore from a Village Pradhan.
The applicant also contested the election of
Village Pradhan against informant and after
election were over, present FIR has been
lodged for demand of Rs.2 crore, which is
alleged by the prosecution to be extortion.
The extortion has been defined in Section 383
IPC, which is reproduced hereinbelow:

"383.
Extortion.-Whoever
intentionally puts any person in fear of any
injury to that person, or to any other, and
thereby dishonestly induces the person so put
in fear to deliver to any person any property
or valuable security, or anything signed or
sealed which may be converted into a
valuable security, commits "extortion"."

16. Under Section 383 IPC, one of the
essential ingredient is that to deliver to any
person any property or valuable security or
anything signed or sealed, which may be
converted into valuable security.

17. The Apex Court in Isaac Isanga
Musumba and others Vs. State of
Maharashtra, 2014 (15) SCC 357 has held
that "

"3. We have read the FIR which has
been annexed to the writ petition as Annexure
P-7 and we find therefrom that the
complainants have alleged that the accused
persons have shown copies of international
warrants issued against the complainants by
the Ugandan Court and letters written by
Uganda Ministry of Justice & Constitutional
Affairs and the accused have threatened to
extort 20 million dollars (equivalent to Rs.110
crores). In the complaint, there is no mention
whatsoever that pursuant to the demands
made by the accused, any amount was
delivered to the accused by the complainants.
If that be so, we fail to see as to how an
offence of extortion as defined in Section 383
IPC is made out. Section 383 IPC states that
:

"383.
Extortion.-
Whoever
intentionally puts any person in fear of any
712 INDIAN LAW REPORTS ALLAHABAD SERIES
injury to that person, or to any other, and
thereby dishonestly induces the person so
put in fear to deliver to any person any
property, or valuable security or anything
signed or sealed which may be converted
into
a
valuable
security,
commits
'extortion'. "

Hence, unless property is delivered to
the accused person pursuant to the threat,
no offence of extortion is made out and an
FIR for the offence under Section 384 could
not have been registered by the police."

18. On a further query being made to
learned counsel for the informant as well as
learned AGA as to whether there was any
delivery of property or the amount, both the
counsel fairly submit that there was no
delivery of any amount, the only allegations
are with regard to demand of Rs.2 crore.

19. It is further to be noted that for
offence under Section 386 IPC, the
allegation should come within four corners
of Section 383 IPC and as such, there
should be a delivery of amount demanded.
In the present case, there is only demand,
no delivery of amount.

20. It is further to be seen that Section
385 IPC pertains to case where there is a
attempt for extortion. Section 385 IPC is
quoted hereinbelow:

"385. Putting person in fear of injury
in order to commit extortion.-Whoever, in
order to the committing of extortion, puts
any person in fear, or attempts to put any
person in fear, of any injury, shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both."

21. Perusal of aforesaid section would
demonstrate that where any person in order
to extort puts any person in fear or attempts
to put any person fear, of any injury then he
is punishable for such offence for a
maximum period of two years. The
aforesaid offence under Section 385 IPC is
bailable in nature as has been agreed
between the parties.

22. Once the legislature itself has
provided the offence to be bailable in
nature then the person cannot be put in jail
as the right under Article 21 of the
Constitution of India would be affected.
The prosecution is required to show that
offence under Section 386 IPC is made out
in the present case. The prosecution has
failed to demonstrate from the record as to
how offence under Section 386 IPC is
made out, once there is no delivery of
amount.

23. Considering the fact that the
allegation against the applicant does not
come within the four corners of Section
386 IPC and would at best, triable by
Section 385 IPC, which is bailable offence.
The right of applicant for bail cannot be
curtail in view of Article 21 of the
Constitution of India.

24. Learned counsel for the informant
as well as learned AGA fairly concede both
the aspect of the matter that there is no
delivery of amount demanded and as such,
Section 386 IPC may not applicable in the
facts and circumstances of the case. Once
the offence at the best is under Sections 385
IPC, which is bailable in nature, the right of
the applicant being enlarged on bail cannot
be curtailed.

25. In the present case, applicant is
also implicated under Section 323 IPC.
There is no injury report of any injured
person. The same would imply that no
8 All. Mohammad Ubaid Vs. State of U.P.
713
dangerous weapons were used by the
applicant as per prosecution case. The
sentence provided under Section 323 IPC is
extendable upto one year. The applicant has
also been implicated under Sections 504
and 506 IPC with the allegation that
applicant has threatened and demanded
money otherwise, informant would not be
fit for the office of Pradhani and threatened
for life. Maximum sentence provided in the
aforesaid sections is two years and in case
of death or grievous hurt, the same is seven
years.

26. The criminal history of applicant
has been disclosed from paragraph nos. 30
to 44 of the affidavit filed in support of bail
application.
In
the
aforesaid
cases,
applicant has already been enlarged on bail.
There is political rivalry between applicant
and the informant. It cannot be denied as a
matter of fact that once there is a political
rivalry, false implication of applicant can
be raised by the applicant more specifically
in view of paragraph no. 21 of the affidavit
filed in support bail application. The
applicant has alleged that informant is in
touch and in connection with local police
has earlier also implicated the applicant in
false FIR. The details of which are
provided in paragraph no.22 of the affidavit
where applicant has already been enlarged
on bail.

27. The manner in which the offence
under Section 386 IPC has been slapped
against
applicant
even
though
the
ingredients of the same are not available in
the FIR or otherwise, learned AGA as well
as learned counsel for informant has failed
to show as to how offence under Section
386 IPC is made out against applicant,
demonstrate the overreaching of the police
authorities by slapping cases of nonbailable in nature under Section 386 IPC
when only Section 385 IPC can at the best
be found against applicant, which is
bailable offence.

28. 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.

29. Let the applicant Mohammad
Ubaid involved in Case Crime No. 066 of
2023, under Sections 147, 148, 323, 504,
506, 386 IPC, Police Station Puramufti,
District Prayagraj 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.
714 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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

30. It is also provided that applicant
shall not come within the periphery of 100
meter from the house of informant and
shall not disturb the peace and tranquillity
of the informant and in case any
disturbance take place, recourse of law
shall be taken by the parties.

31. SHO concerned shall maintain
peace and tranquillity between the parties.

32. In case of breach of any of the
above condition, the prosecution shall be at
liberty
to
move
bail
cancellation
application before this Court.
----------
(2023) 8 ILRA 714
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 42807 of 2021

Aftab Khan ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Manvendra Singh, Sri Bal Krishna Yadav
(A.C.)

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3) & 438 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 324, 326, 307 & 504 - Application for
Bail - FIR - applicant is in jail and has no
criminal history - applicant argued that he was
falsely implicated due to ulterior motives and
assured cooperation with legal proceedings -
court finds that, earlier applicant was enlarged
on bail by this case in present case - but, owing
to his weak financial condition, he is unable to
furnish sureties, as such, he is languishing in jail
- held, court granted bail to applicant,
considering the several factors, including the
nature of the accusations, the severity of
punishment, the applicant's lack of criminal
history, and the overcrowding of jails during the
pandemic - the court also emphasized the
reformative theory of punishment and the
mandate of Article 21 of the Constitution of
India - accordingly, application is allowed. (Para
- 5, 6, 7)

Application Rejected. (E-11)

List of Cases cited:

1. Sukhari @ Sobrati case in - Criminal Misc.
Bail Application no. 19185/2022,

2. In Re Strategy For Grant of Bail Vs Mr. Gaurav
Agrawal - MANU/SCOR/14591/2023.

3. Moti Ram & ors. Vs St. of M.P. - 1978 vol. 4
SCC 47.

(Delivered by Hon'ble Krishan Pahal, J.)

Order
on
Criminal
Misc.
Modification Application No. 2 of 2023

1. List has been revised.

2. Heard Sri Bal Krishna Yadav,
learned Amicus Curiae for the applicant as
well as Sri Deepak Kumar Singh, learned
A.G.A. for the State.

3. The applicant has filed his
modification application. The applicant is
in jail since 5.1.2021 in the said case and