Jammu & Kashmir High Court
Mustafa Sayed vs Ut Of J&K & Anr on 2 July, 2025
Serial No. 80
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 176/2025
Mustafa Sayed .....Appellant(s)/Petitioner(s)
Through: Mr. F. A. Natnoo, Advocate.
vs
UT of J&K & Anr. ..... Respondent(s)
Through: Mr. Eishaan Dadhichi, GA.
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
02.07.2025
1. Mr. Eishaan Dadhichi, learned GA appears and accepts notice on
behalf of the respondents. He seeks and is granted time to file
objections in the instant bail petition by the next date of hearing.
2. Heard submissions of the learned counsel for the petitioner/accused in
respect of his prayer for grant of interim pre-arrest bail. He submitted
that the petitioner is innocent and has not committed any offence. That
actually the complainant and his associates have committed heinous
offences in relation to the petitioner and the police has not taken action
under law in his case. That the respondent No. 2-SHO, Police Station,
Surankote is bent upon to arrest him in connection with false and
frivolous allegations. That he is likely to suffer in terms of his
reputation in the estimation of the society in case the respondent
succeeds in arresting him. Learned counsel further submitted that law
has armed this Court and even the Sessions Courts with extraordinary
powers in terms of Section 482 of new Code i.e. BNSS, 2023
corresponding to Section 438 of the repealed Code in order to protect
2 Bail App No. 176/2025
those who genuinely apprehended their involvement on the basis of
false and frivolous complaints.
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. A case appears to be made out for grant of interim pre-arrest bail,
having regard to the facts and circumstances of the case.
5. The Hon’ble Apex Court in its Judgments cited as Siddharam
Satlingappa Mhetre Vs State of Maharashtra decided on 02/12/2010,
3 Bail App No. 176/2025
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.
6. 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
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
4 Bail App No. 176/2025
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.
7. 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;
(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
5 Bail App No. 176/2025
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 the 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
6 Bail App No. 176/2025accused 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.”
8. 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
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),
likelihood of fleeing justice (such as leaving the country), etc.
7 Bail App No. 176/2025The 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 till 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
8 Bail App No. 176/2025
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.
9. CD file shall be produced for the perusal of the Court on the next date
of hearing.
10. List the matter on 29.07.2025.
11. In the meantime and till next date of hearing before the Bench, the
respondent i.e. SHO, Police Station, Surankote is directed that he shall
in the event of arrest of the petitioner in connection with FIR No.
82/2025 dated 24.05.2025 registered with his Police Station under
Sections 109, 115(2), 126(2), 351(2), 3(5) of BNS release him from
the custody, subject to his 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 petitioner/accused shall cooperate with Investigating
Officer of the case as and when directed by him.
(ii) That the petitioner/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.
9 Bail App No. 176/2025
(iii) That the petitioner/accused shall not leave the territory of India
without prior permission of this Court.
(iv) That the petitioner/accused shall not repeat the commission of
crime.
(v) That the petitioner/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 petitioner,
he 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