Jammu & Kashmir High Court
Muneer Hussain & Ors vs Ut Of J&K on 2 July, 2025
Serial No. 07
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 173/2025
CrlM No. 1063/2025
Muneer Hussain & Ors. .....Appellant(s)/Petitioner(s)
Through: Mr. K. S. Chib, Advocate.
vs
UT of J&K ..... Respondent(s)
Through: Mr. Bhanu Jasrotia, GA.
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
02.07.2025
1. Mr. Bhanu Jasrotia, learned GA appears and accepts notice on behalf of
the respondent. He seeks and is granted opportunity to file objections in
the matter by the next date of hearing.
2. Heard learned counsel for the petitioners in respect of his prayer for grant
of interim pre-arrest bail, who, inter alia, submitted that petitioners have
been falsely and frivolously implicated in the case FIR who have not
committed the alleged offences; that the occurrence is alleged to have
been taken place on 28.02.2024 and the alleged victim has been made to
improve her statement during the investigation by getting her statement
recorded before the Magistrate; that the petitioners are permanent
residents of the UT of J&K, holding property both immovable and
movable and as such, there is no question of their misusing the
concession of bail; that the respondent/Police Station is bent upon to
arrest them and as such, they shall be highly disreputed in the estimation
of general public in case of their arrest and that they shall abide by any
conditions that may be imposed by this Court.
2 Bail App No. 173/2025
3. Learned counsel invited the attention of this Court towards a judgment of
the Hon’ble Apex Court cited as Siddharam Satlingappa Mhetre Vs State
of Maharastra decided on 02/12/2010, AIR 2011 SC 312 and submitted
on the basis of reliance on the said authoritative judgment that the
Hon’ble Apex Court has widened the scope of the personal liberty and
has held that pre-arrest bail cannot only be claimed in extra-ordinary
circumstances, but in all the cases where the Court is satisfied in the facts
and circumstances of the case that there is no need of the accused in
custody during investigation. He submitted that it has also been held in
case concerned that pre-arrest bail need not to be granted for a limited
period and the Hon’ble Apex Court held its earlier judgments on the
subject i.e Chain Lal Vs. State of Madhya Pradesh (1976) 4 SCC 572;
Salau-ud-din Abdul Samad Sheikh vs State of Maharastra AIR 1996 SC
1042; K.L, Verma vs state and another 1996 (7) SCALE 20; Sunita Devi
vs State of Bihar and another AIR SC 498; 2005 AIR (Criminal) 112;
Adri Dharan Das vs state of West Bengal AIR 2005 SC 1057 and Naresh
Kumar Yadoo vs Ravinder Kumar and others 2008 AIR (SC 218)
decided on 23rd October 2007, as per incuriam.
4. The learned UT counsel Mr. Bhanu Jasrotia, in rebuttal, vehemently
contended that petitioners do not deserve any concession of pre-arrest
bail as they have committed heinous, anti-social and non-bailable
offences in relation to a minor girl.
5. Perused the interim application bearing CrlM No.1063/2025 supported
with an affidavit. Also perused the main petition and copies of
documents enclosed with the same.
3 Bail App No. 173/2025
6. The case of the petitioners is not hit by the provisions of Clause 4 of
Section 438 of the Code of Criminal Procedure, 1973 or by the
provisions of clause 4 of the Section 482 of BNSS, 2023.
7. In the facts and circumstances of the case, a ground appears to be made
out for grant of interim pre-arrest bail, subject to same reasonable terms
and conditions:
8. The Hon’ble Apex Court in its Judgments cited as Siddharam
Satlingappa Mhetre Vs State of Maharashtra decided on 02/12/2010,
AIR 2011 SC 312 and Sushila Aggarwal and others vs. State (NCT of
Delhi) and Another decided on January 29, 2020 by a larger Bench 2020
SC online 98 has interpreted law on the subject of anticipatory bail with a
very wide outlook and while interpreting the concept of liberty
guaranteed under Article 21 of the Constitution of our country in a
flexible and broader sense. The Hon’ble Apex Court has admittedly, in
the Judgment cited as Siddharam Satlingappa Mhetre Vs State of
Maharashtra, held the earlier law on the subject laid down in Chain Lal
Vs. State of Madhya Pradesh (1976) 4 SCC 572; Salau-uddin Abdul
Samad Heikh vs State of Maharastra AIR 1996 SC 1042; K.L, Verma vs
state and another 1996 (7) SCALE 20; Sunita Devi vs State of Bihar and
another AIR 2005 SC 498; 2005 AIR (Criminal) 112; Adri Dharan Das
vs State of West Bengal AIR 2005 SC 1057 and Naresh Kumar Yadoo vs
Ravinder Kumar and others 2008 AIR (SC 218) decided on 23rd October
2007, as per incuriam.
9. It was held by the Hon’ble Apex Court in the said Judgments that
purpose of anticipatory bail is to uphold cardinal principle of criminal
4 Bail App No. 173/2025
jurisprudence that an accused person is presumed to be innocent till
he/she is proved to be guilty and that Section 438 of Code (corresponding
to Section 482 of BNSS) need not be invoked only in exceptional or rare
cases. Discretion must be exercised on the basis of available material and
facts of particular case. It has also been held in the said case that
anticipatory bail cannot be granted for a limited period. Accused released
on anticipatory bail cannot be compelled to surrender before trial Court
and again apply for regular bail. It is contrary to the spirit of section 438
and also amounts to deprivation of personal liberty. Ordinarily, benefit of
grant of anticipatory bail should continue till end of trial of that case
unless bail is cancelled on fresh circumstances. That grant or refusal of
bail should necessarily depend on facts and circumstances of the each
case.
10. The following factors and parameters have been laid down for
consideration while dealing with anticipatory bail.
(a) The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
(b)The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a
court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d)The possibility of the accused’s likelihood to repeat similar or the
other offences.
(e) Whether the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her;
5 Bail App No. 173/2025
(f) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
(g)The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the
exact role of the accused in the case. The cases in which accused is
implicated with the help of section 34 and 149 of the Indian Penal
Code, the court should consider with even greater care and caution
because over implication in the cases is a matter of common knowledge
and concern;
(h)While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no prejudice
should be caused to the free, fair and full investigation and there should
be prevention of harassment, humiliation and unjustified detention of
the accused;
(i) The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be considered in the
matter of grant of bail and in the event of there being some doubt as to
the genuineness of the prosecution in the normal course of events, the
accused is entitled to an order of bail.
It is profitable to reproduce a relevant complex extract from the said
judgment as under:-
“….The inner urge for freedom is a natural phenomenon of every human
being. Respect for life and property is not merely a norm or a policy of
6 Bail App No. 173/2025the state but an essential requirement of any civilized society. Just as the
liberty is precious to an individual, so is the society’s interest in
maintenance of peace, law and order.”
“A great ignominy, humiliation and disgrace is attached to the arrest. In case,
the state considers some suggestions laid down by the Apex Court, it may not be
necessary to curtail the personal liberty of the accused in a routine manner. As
reported by and large nearly 60% of the arrests are either unnecessary or
unjustified. As held, the arrest should be the last option and it should be restricted to
those exceptional cases where arresting the accused is imperative in the facts and
circumstances of that case. Similarly, the discretion vested with the court under
section 438 Cr.P.C should be exercised with caution and prudence. It is imperative
to sensitize judicial officers, police officers and investigating officers so that they can
properly comprehend the importance of personal liberty viz-a-viz social interests.
Once the anticipatory bail is granted then the protection should ordinarily be
available till the end of the trial.”
11. In the another judgment of Sushila Aggarwal and others vs. State
(NCT of Delhi) and another decided on 29th, January 2020 a larger
bench of Hon’ble Apex Court was pleased to inter-alia lay down the
following guiding principles for consideration of the pre-arrest bail
applications by the Courts:
(i) Nothing in Section 438 Cr.P.C, compels or obliges courts to
impose conditions limiting relief in terms of time, or upon filing of
FIR, or recording of statement of any witness, by the police,
during investigation or inquiry, etc. While considereing an
application (for grant of anticipatory bail) the court has to
7 Bail App No. 173/2025consider 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),
likelihood of fleeing justice (such as leaving the country), etc. The
Courts would be justified and ought to impose conditions spelt out
in Section 437 (3), Cr.PC [by virtue of Section 438].
(ii) The need to impose other restrictive conditions, would have to be
judged on a case by case basis, and depending upon the materials
produced by the State or the investigating agency. Such special or
other restrictive conditions may be imposed if the case or cases
warrant, but should not be imposed in a routine manner, in all
cases. Likewise, conditions which limit the grant of anticipatory
bail may be granted, if they are required in the facts of any case or
cases; however, such limiting conditions may not be invariably
imposed.
(iii) 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 note is a
matter of discretion; equally whether and if so, what kind of
special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of the
court.
(iv) Anticipatory bail granted can, depending on the conduct and
behaviour of the accused, continue after filing of the charge sheet
8 Bail App No. 173/2025till end of trial. An order of anticipatory bail should not be blanket
in the sense that it should not enable the accused to commit further
offences and claim relief of indefinite protection from arrest. It
should be confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a specific incident.
It cannot operate in respect of a future incident that involves
commission of an offence.
(v) An order of anticipatory bail does not in any manner limit or
restrict the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail
12. CD file shall be produced for the perusal of the Court on the next date of
hearing.
13. List the matter on 23.07.2025.
14. In the meantime and till next date of hearing before the Bench, the
respondent i.e. SHO, Police Station, Dharamsal, Rajouri is directed that
he shall in the event of arrest of the petitioners in connection with FIR
No. 31/2024 dated 07.03.2024 registered with his Police Station under
Sections 341, 342,363, 506, 109 IPC and Section 8/10 of the Protection
of Children from Sexual Offences Act, 2012 release them from the
custody, subject to their furnishing of bail and personal bonds to his
satisfaction to the tune of Rs. 50,000/- each. However this order shall be
subject to the following conditions:-
(i) That the petitioners/accused shall cooperate with Investigating
Officer of the case as and when directed by him.
9 Bail App No. 173/2025
(ii) That the petitioners/accused shall not directly or indirectly make
any inducement, threat or promise to any person/s acquainted with
the facts of the case so as to dissuade him/them from disclosing
such facts to the court or to any police officer.
(iii) That the petitioners/accused shall not leave the territory of India
without prior permission of this Court.
(iv) That the petitioners/accused shall not repeat the commission of
crime.
(v) That the petitioners/accused shall remain punctual at the trial in
case of the production of the final police report/challan.
(vi) In case of any recovery from or at the instance of the petitioners,
they shall be deemed to be in the custody for the purpose of
Section 23(2) of Bharatiya Sakshya Adhiniyam, 2023.
(MOHD. YOUSUF WANI)
JUDGE
Jammu
02.07.2025
Vishal Sharma