Jammu & Kashmir High Court – Srinagar Bench
Shabir Ahmad Malik & Anr vs Union Territory Through on 11 April, 2025
Serial No. 15
SUPPLEMENTARY CAUSE LIST-III
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App 45/2025
Shabir Ahmad Malik & Anr. ...Applicant(s)
Through: Mr. Owais Shafi, Advocate.
Vs.
Union Territory through ...Respondent(s)
Senior Superintendent of
Police Ganderbal & Ors.
Through:
CORAM:
Hon'ble Mr. Justice Mohd. Yousuf Wani, Judge.
ORDER
11.04.2025
1. The instant matter came up for hearing before this
Court as a fresh case on yesterday and being a liberty matter,
was adjourned till today, with the observations made in the
yesterday’s order. The notices directed to be issued obviously
could not have been issued and served overnight.
2. Registry to issue notices to the respondents,
returnable by the next date of hearing, subject to taking of
steps by the petitioners within a weeks’ period, for filing of
objections.
3. The learned counsel for the petitioners has furnished
xerox copy of the order dated 11th April, 2025 purported to
have been passed by the learned Principal District Judge,
Ganderbal regarding dismissal of the earlier bail application,
as not pressed. He has also furnished for perusal of the Court
a copy of FIR No. 57/2025 of Police Station Ganderbal. Copies
of said documents are taken on record.
4. Heard the learned counsel for the petitioners in
respect of his prayer for grant of interim pre-arrest bail and
considered his submissions.
5. He submitted that the petitioners have been falsely
and frivolously implicated in the case FIR only to harass them
as the Petitioner No. 1 is a Government teacher. He submitted
that the dispute, if any, between the complainant and the
petitioners is purely of civil/matrimonial nature, regarding
which, litigation is going on, in the competent courts; That the
petitioners are men of reputation and deeply rooted in the
society, who are likely to suffer badly in the estimation of their
reputation in case of their arrest in the case FIR No. 57/2025
registered with the Police Station Ganderbal on false and
frivolous grounds.
6. The learned counsel for the petitioners submitted
that the petitioners shall abide by any of the conditions that
may be imposed by this Court.
7. Perused the application, which is supported with an
affidavit.
8. Prima facie ground appears to be made out in the
opinion of the Court for grant of interim pre-arrest bail.
9. 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-ud-din
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 @))% 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.
10. It was held by the Apex Court in the said Judgment
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 now 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.
11. 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
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 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.”
12. In the recent 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 considering 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. 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 behavior 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
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.
13. List on 9th May, 2025.
14. In the meantime, subject to any vacation or
modification upon consideration of objections of the other side
and till the next date of hearing before the Bench, the
respondents in the event of arrest of the petitioners in
connection with FIR No. 57/2025 registered with the Police
Station Ganderbal, shall let them off from the custody, subject
to their furnishing surety and personal bonds to the tune of
Rs. 50,000/- each, to the satisfaction of respondent No. 2-
SHO, Police Station, Ganderbal. This order shall, however, 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;
(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; and
(v) 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.
15. In view of urgency expressed by the learned counsel
for the petitioners, a copy of this order be provided to him
under the seal and signatures of Additional Registrar cum
Bench Secretary of this Court today itself.
(Mohd. Yousuf Wani)
Judge
SRINAGAR:
11.04.2025
“HAMID”
Abdul Hamid Bhat
I attest to the accuracy and
authenticity of this
document