Mohammad Nusrat v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41630 of 2023 Applicant :- Mohammad Nusrat Opposite Party :- State of U.P. Counsel for Applicant :- Sudist Kumar Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.

¶1Learned 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.

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

¶3It is submitted by learned counsel for the applicant that the First Information Report has been lodged on 26.4.2023 in respect of an incident which has occurred in the year 2021. Learned counsel for the applicant submits that the complainant is the real brother of the applicant and property dispute between the parties is going on since 2017. Learned counsel for the applicant submits that the First Information Report was lodged with the allegation that the applicant was involved with the gang of criminal and demanded extortion money of Rs. 5 crores. The applicant is instrumental in abducting the complainant in the year 2021 and thereafter the complainant was being pressurized for transfer of the land belonging to the complainant in favour of sons of one criminal or to pay the extortion money. As per the First Information Report, extortion money of Rs. 1,20,00000/- has been paid. Learned counsel for the applicant submits that there is no trail of Rs. 1,20,00000/- which is alleged to have been paid. Neither source of the aforesaid amount has been found during investigation. He submits that there is no injury report with regard to any injury being caused by the applicant or any of the members of the gang. He submits that the First Information Report has been lodged after delay on the pretext that there was fear among the persons with regard to gang and as a result of the same no person was coming up for lodging the First Information Report. He submits that the aforesaid fact is wholly irrelevant as in the year 2017 itself the new government has taken the charge and the public was at freewill to have lodge the First Information Report. He submits that no circumstances have been disclosed that in the year 2021 after the new government has taken over there was any such threat being offered by the gang. He submits that it is of common knowledge that the government has already initiated strong action against the said gang. 3-A. Learned counsel for the applicant further submits that present dispute is between two brothers with regard to the property and taking the pretext of said gang applicant has been falsely implicated. The dispute between the brothers are being enlarged to the scale of abduction, kidnapping and extortion. He submits that there is no evidence with regard to Section 307 I.P.C. as no injury has been found on the body of the informant nor any injury report has been found during investigation. Learned counsel for the applicant further submits that although in the First Information Report whats-app message and recording has been stated as evidence. During investigation no such whats-app message and recording has been found. The criminal history of the applicant has been explained in paragraph no. 15 of the affidavit. Applicant is languishing in jail since 9.8.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶4Sri Arvind Kumar, learned A.G.A. for the State has opposed the bail application and submits on the basis of the instructions received on 9.9.2023 that as per the First Information Report the informant was abducted and extortion money was demanded and a sum of Rs. 1,20,00000/- was paid. Learned A.G.A. for the State fairly submits that although there is an eye witness of the occurrence however source of sum of Rs. 1,20,00000/- has not been found during investigation. Learned counsel for the informant submits that no whats-app message and recording has been found during investigation. He further fairly submits that there is no medical report of the informant with regard to any injury found on the body of the informant was found during investigation as per instructions received.

¶5Learned 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."

¶6In 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.

¶7In 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 proper to deny bail to the applicant just on the ground that he had criminal antecedent.

¶8The 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

¶51Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶9No material, facts or circumstances has been shown by learned AGA for the State 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.

¶10It 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.

¶11Learned 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. 11-A. It is to be seen that in the present case applicant and the informant are the real brothers. In the year 2017 dispute with regard to property was engaged between the parties and in this respect the informant had lodged First Information Report dated

20.06.2017 which is filed at page no. 17 of the supplementary affidavit. The present First Information Report has been lodged on

26.4.2023 with regard to the incident that has occurred in October, 2021. There is inordinate delay in lodging of the First Information Report. The explanation offered by the informant for lodging of the First Information Report with such delay is that he was in fear and terror of the gang as such, the First Information Report was not lodged earlier. 11-B. It is further to be noted that in the present case no injury report has been found during investigation and since there is no injury to the informant, the evidence with regard to Section 307 I.P.C. may not be attracted. There is only an eye witness evidence which has been produced after two years. The pretext taken with regard to said gang does not hold as the new government has already taken over the charge prior to October, 2021 and it is of general knowledge that strict action was being taken by the government against criminals. As per learned A.G.A. for the State no whats-app message or recording was found during investigation in respect of the alleged offence nor any source of the amount of Rs. 1,20,00000/- was found.

¶12Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and the fact that the source of amount of Rs. 1,20,00000/- has not been found during investigation nor has been disclosed by the informant in the First Information Report, more particularly, when such a huge amount is not permissible to be kept in cash by any person as per the law of the land 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.

¶13Let the applicant-Mohammad Nusrat involved in Case Crime No. 73 of 2023, under Sections 147, 386, 307, 364-A, 504 and 506 I.P.C., Police Station Khuldabad, District Allahabad/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. 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.

¶14In 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 :- 7.12.2023 VMA High Court of Judicature at Allahabad