Mohd. Abid v. State of U.P. Thru. Secy. / Addl. Chief Secy. Home Lko

Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5308 of 2023 Applicant :- Mohd. Abid Opposite Party :- State Of U.P. Thru. Secy. / Addl. Chief Secy. Home Lko. Counsel for Applicant :- Sheeran Mohiuddin Alavi,Harsh Vardhan Kediya Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi,J.

¶1Heard Sri Harsh Vardhan Kediya, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned AGA-I and perused the records.

¶2The instant application has been filed seeking release of the applicant on bail in Case Crime No. 416 of 2022, under Sections 121A, 153A IPC, Police Station Gudamba, District Lucknow.

¶3The aforesaid case has been registered on the basis of an FIR lodged on 27.09.2022 against the applicant for commission of offence under Section 121A and 153A alleging that informations were being received that some persons of PFI are conspiring to challenge the unity and integrity of the country and to make India an Islamic nation by the year 2047. Objectionable literature was being distributed with this object.

¶4On the basis of information received from a mukhbir, the police apprehended the informant from the house of one of his relatives. It is stated that the applicant's motorcycle was parked near that house and some literature was recovered from the bag of the motorcycle, including literature regarding manufacturing of IED (Improvised Explosive Device).

¶5In the affidavit filed in support of the application it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

¶6It has further been stated in the affidavit that the applicant was only a member of PFI and he was a member of SDPI, which has not been banned and members whereof have contested assembly election in the State of Karnataka.

¶7The learned counsel for the applicant has submitted that the applicant has been charged with commission of offence under Section 121A IPC, which is 'conspiracy to commit offence punishable by Section 121'. The word conspiracy presuppose agreement between two or more persons to commit an offence. In this case, the applicant alone has been made an accused and a single accused cannot commit the offence of conspiracy. He has further submitted that the offence under Section 153A IPC carries a maximum punishment of imprisonment up to three years. The investigation already stands completed and a charge sheet has been submitted on 21.12.2022.

¶8Replying to the aforesaid submissions, the learned AGA-I has submitted that the scope of Section 121A IPC has been explained by the Hon'ble Supreme Court in Mohd. Irfan v. State of Karnataka, 2022 SCC OnLine SC 856, wherein after discussing the law laid down in Nishar Khan, (2003) 8 SCC 461 and other cases, the Hon'ble Supreme Court has held that Section 121A IPC deals with conspiracy to commit offences punishable under Section 121 of the IPC as well as conspiracy to overawe by force, the Central Government or any State Government. Therefore, Section 121-A is not confined to conspiracy to commit offences punishable under Section 121 of the IPC alone. The word overawe has been interpreted in the following manner:- "57. The word "overawe" clearly imports more than the creation of apprehension or alarm or even perhaps fear. It appears to me to connote the creation of a situation in which the members of the Central or the Provincial Government feel themselves compelled to choose between wielding to force or exposing themselves or members of the public to a very serious danger. It is not necessary that the danger should be a danger of assassination or of bodily injury to themselves. The danger might well be a danger to public property or to the safety of members of the general public.

¶58As the text of the relevant Section shows, persons who plan to overawe the Central or the State Government by criminal force or show of criminal force would be guilty of offence of entering into conspiracy in terms of Section 121A of the IPC. The dictionary meaning of the expression "overawe" is to subdue or inhibit with a sense of awe23. The expression "overawe" would thus imply creation of apprehension or situation of alarm and as rightly held by the Division Bench, it would not be necessary that the danger should be one of assassination of or of bodily injury to the members of the machinery or apparatus of the Government but the danger might as well be to public property or to the safety of members of the general public."

¶9I have considered the aforesaid facts and circumstances of the case and the submissions made by the learned counsel for the parties.

¶10What prima facie appears from the material placed before the Court at this stage is that the police claimed to have arrested the applicant at 04:30 a.m. On 28.09.2022 from the residence of one of his relatives. Some literature is said to have been recovered from the bag of a motorcycle parked outside the house. The alleged recovery has not been witnessed by any independent person. The applicant is alleged to have committed an offence under Section 121A IPC, which is conspiracy to commit offences punishable under Section 121. Conspiracy presupposes agreement between two or more persons to commit the offence. The applicant alone has been made an accused in the present case and a single person cannot commit an offence of conspiracy. The said offence allegedly committed by the applicant namely promoting enmity between different groups on grounds of religion, race, place of birth, resident, language etc. and doing acts prejudicial to maintenance of harmony, carried a maximum punishment of imprisonment up to three years only. The applicant has no previous criminal history and he is languishing in jail since 27.09.2022 and even charges have not been framed till date.

¶11Without making any observations which may affect the merit of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

¶12Accordingly, this bail application stands allowed.

¶13Let the applicant-Mohd. Abid be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

¶14It is observed that the trial cout shall proceed with the trial expeditiously and conclude the same without granting unnecessary adjournments to any of the parties. Order Date :- 11.12.2023 Pradeep/- High Court of Judicature at Allahabad, Lucknow Bench