Allahabad High Court

ASIFversusSTATE OF U.P.

Decided: 4 May 2026
Bench: SAMEER JAIN

Holding

The Court held that, in the absence of cogent evidence for the offence under section 123 BNS and notwithstanding the alleged criminal history, the applicant is entitled to bail.

Summary

The applicant, Asif, was arrested in connection with a theft allegedly committed using a poisonous substance, and was charged under Sections 317(2), 318(4), 303(2) and 123 BNS of the IPC. He contended that the FIR was lodged against unknown persons, that the allegations against him were false, and that the only serious charge, section 123 BNS, lacked cogent evidence. The prosecution argued that the applicant had a criminal history of twelve other cases, which it claimed justified denial of bail. The Court examined the nature of the offences, noting that all except the 123 BNS charge are triable by a magistrate with a maximum punishment of five years, and found no substantive proof for the 123 BNS allegation. Considering the lack of evidence for the serious charge and that the alleged criminal history pertained to another individual, the Court held that the applicant’s continued detention for six months was unwarranted. Consequently, the bail application was allowed, subject to a personal bond, sureties, and standard conditions.

Issues considered

Whether the applicant is entitled to bail despite alleged prior criminal history of twelve cases.
Whether there is sufficient evidence to sustain the charge under section 123 BNS to deny bail.
Whether the nature of the offences, being triable by a magistrate with a maximum five‑year sentence, impacts bail eligibility.

Legislation cited

Indian Penal Code — s. 123 BNS, 303(2), 317(2), 318(4)

Subjects

bail
criminal procedure
Indian Penal Code
section 123 BNS
pre‑trial detention
magistrate jurisdiction

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL MISC. BAIL APPLICATION No. - 4924 of 2026

Asif
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)

Counsel for Applicant(s) : Rajiv Chowdhury
Counsel for Opposite Party(s) : G.A.

Court No. - 66
HON'BLE SAMEER JAIN, J.

1. Heard Sri Rajiv Chowdhury, learned counsel for the applicant and Dr.
S.B. Maurya, learned AGA for the State-respondent.

2. The instant application has been filed seeking release of the applicant on
bail in Case Crime No. 436 of 2025, under Sections 317(2), 318(4), 303(2),
123 BNS, Police Station Sigra, District Varanasi, during pendency of the
trial in the court below.

3. Learned counsel for the applicant submitted that FIR of the present case
was lodged against unknown persons and according to the FIR by using
some poisonous intoxicated items some unknown person committed theft
from the informant and during investigation on the basis of recovery of
certain stolen articles of informant applicant has been made accused in the
present matter but entire allegation levelled against the applicant are totally
false.

4. He further submitted that except offence under section 123 BNS all the
alleged offences are triable by Magistrate with maximum punishment of five
years and there is no cogent evidence of offence punishable under section
123 BNS against the applicant.

5. He further submitted that however, as per the prosecution apart from the
present case applicant is having criminal history of 12 other cases but in the
supplementary affidavit dated 8.2.2026 applicant specifically denied this fact
and stated that the alleged criminal history is of one another Asif, Grand son
of Zabir, while, name of grand father of the applicant is Ghasita.
BAIL No. 4924 of 2026
2

6. He further submitted that applicant was not having any previous criminal
history, however, when he was arrested then he also has been made accused
in one case relating to police encounter and in that case, he is on bail and he
is in jail in the present matter since 9.11.2025 i.e. for last six months.

7. Per contra, learned AGA opposed the prayer for bail and submitted that as
per his instruction applicant is having criminal history of 12 other cases
however he could not dispute the other arguments on facts advanced by
learned counsel for the applicant.

8. I have heard learned counsel for the parties and perused the record of the
case.

9. However, as per allegation applicant by using some poisonous substance
committed the theft from the informant alongwith others and some of the
alleged stolen articles were also recovered from the possession of the
applicant but except offence under section 123 BNS, all the alleged offences
are triable by Magistrate with maximum punishment of five years and prima
facie, with regard to the offence under section 123 BNS it appears there is no
cogent evidence against the applicant on record.

10. Further, however, as per prosecution applicant is also having previous
criminal history of 12 cases but according to applicant the disclosed criminal
history is not of the applicant rather is related to one another Asif, grand son
of one Zabir and applicant is grand son of Ghazeta.

11. Be that as it may, considering the totality of the facts of the case, in
considered view of this Court, it is not proper to withhold the instant bail
application merely due to above alleged criminal history of the applicant.

12. Further, in the present matter, applicant is in jail for last six months.

13. Therefore, considering the facts and circumstances of the case, discussed
above, in my view, applicant is entitled to be released on bail.

14. Accordingly, without expressing any opinion on the merits of the case,
the instant bail application is allowed.

15. Let the applicant-Asif, 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 the court concerned with the following conditions:-
BAIL No. 4924 of 2026
3

(i) The applicant shall appear before the trial court on the dates fixed, unless
his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper
with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

16. In case of breach of any of the above condition, the prosecution will be
at liberty to move an application before this Court for cancellation of the
bail of the applicant.

17. It is clarified that the observations made herein are limited to the facts
brought in by the parties pertaining to the disposal of bail application and the
said observations shall have no bearing on the merits of the case during
trial.

May 5, 2026
Ankita
(Sameer Jain,J.)

Digitally signed by :-
ANKITA SRIVASTAVA
High Court of Judicature at Allahabad

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