Jammu & Kashmir High Court
Vasu Sharma & Ors vs Respondent(S) on 14 August, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 176/2024
CrlM No. 1245/2024
Vasu Sharma & Ors. ..... Petitioner(s)/Appellant(s)
Through: Mr. Rajinder Singh Jamwal, Advocate &
Mr. Sanjeev Padha, Advocate
Vs
..... Respondent(s)
UT of J& K & Anr.
Through: Mr. Pawan Dev Singh, Dy. AG for R-1
M/S Rajinder Singh Jamwal, for R-2
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
14.08.2024
1. Apprehending their arrest by the Police Station Bishnah, Jammu in case FIR No. 98/2024, the petitioners have approached this Court invoking its powers under the Provisions of Section 482 of Bharatiya Nagrik Surasksha Sanhita, 2023 (for short „BNSS‟), for grant of pre-arrest bail in their favour on the main relevant grounds, inter alia, to the effect that they have been falsely and frivolously implicated in the case FIR No. 98/2024 when they are innocent, peace loving citizens believing in the rule of law; that the case FIR in question against them has been got registered on the basis of a false complaint filed by respondent No. 2-Amit Puriya and his family members under a conspiracy to malign their reputation in the society; that they are actually having a civil dispute with the respondent No. 2 and his family members in respect of a patch of land regarding which the complainant party has been disputing their rights; that the FIR in question has got registered to pressurize them to settle score in 2 Bail App. No. 176/2024 respect of the civil dispute; that earlier they approached the Court of learned Additional Sessions Judge, Jammu, seeking grant of pre-arrest bail in case FIR in question, which initially granted them the interim pre-arrest bail vide order dated 18.07.2024, but subsequently rejected the same vide its order dated 05.08.2024 on illegal and unjustifiable grounds being influenced by the severe enmity between them and the complainant-party; that the learned Sessions Judge has not appreciated the fact that basically there is a civil dispute between the parties, which has resulted into the filing of counter criminal cases; that some of the petitioners are elders and senior citizens suffering from multiple ailments; that they shall suffer badly in terms of their reputation in the estimation of society in case of their arrest, which cannot be repaired thereafter; that they complied with the terms and conditions of the interim pre-arrest bail order dated 18.07.2024 already granted by the learned Sessions Judge and that they shall also abide by any of the conditions that may be imposed by this Court.
2. As per the memo of objections dated 12.08.2024 of the respondent No. 1, copy whereof has been furnished for perusal in the open Court, the petitioners are alleged to be involved in the commission of offences punishable under Sections 307/329 (3)/191(2)/191(3)/190/115(2)/352/351(2)/351(3) and 4/25 Arms Act arising out of FIR No. 98/2024 registered with Police Station Bishnah, Jammu. The respondent-State has resisted the bail application on the grounds that the same is not maintainable as being successive one without there being any change in the circumstances after the dismissal of the earlier application by the learned Sessions Judge, Jammu. That the petitioners are involved in the commission of heinous offences, as they have caused serious injuries to the complainant and his family members. That the custodial 3 Bail App. No. 176/2024 interrogation of the petitioners is imperative for the logical conclusion of the investigation of the case. That this Court is required to consider a variety of circumstances including seriousness of crime, nature of offences, likelihood of the accused misusing the concession of bail and the impact of crime on the society as well as State while disposing of a bail application. That the release of the petitioners shall badly effect the investigation and the fair trial of the case. That the statements of the complainant and other witnesses are still to be recorded. That the concession of interim pre-arrest bail already granted in favour of the petitioners by the learned Sessions Judge has been subsequently denied to them and that the co-accused- Usha Rani has been granted interim bail by the Court of learned 3rd Additional Sessions Judge, Jammu.
3. I have heard learned counsel for the parties including that of respondent no. 2-complainant.
4. The learned counsel for the petitioners while reiterating his stand taken in the bail application submitted that the petitioners are innocent who have been falsely and frivolously implicated in the case FIR on account of the personal enmities and vengeance originating from a civil dispute. He submitted that the allegations leveled on the petitioners as per the case are far from the facts. That there are counter cases between the petitioners and the respondent No.2 who are having a civil dispute between them. That petitioners deserve the concession of pre-arrest bail being innocent who are ready to abide by any conditions that may be imposed by this Court. That denial of concession of pre- arrest bail to the petitioner shall be violative of their fundamental right to liberty guaranteed under Article 21 of the Constitution of our country. Learned counsel further contended that the petitioners had already filed a similar application 4 Bail App. No. 176/2024 before the learned Sessions Judge, Jammu who earlier granted them the concession of interim pre-arrest bail, but subsequently influenced by mutual rivalry between the parties rejected the same. Learned counsel further contended that there is no bar under law in filing of a successive pre-arrest bail application in terms of Section 482 of BNSS after the first application is rejected by the Sessions Court. He further contended that there is nothing on record suggestive of the fact that petitioners shall misuse the concession of bail by tempering with the prosecution evidence or by absconding at the trial.
5. Learned counsel for the petitioners in support of his contention placed reliance on the authoritative judgments cited as „Miss Harsh Sawhney vs. Union Territory (Chandigarh Admn.),1978 AIR Supreme Court 1016, Suraj Bhan vs. State, 1980 (17) DLT 535, Diwan Singh vs. State and another, 2010 (3) JKJ 367.
6. Per contra, learned State counsel Mr. Pawan Dev Singh, Dy.AG in rebuttal argued that petitioners do not deserve the concession of bail as they have committed the heinous offences effecting the human body without any excuse for risking the human life. He contended that the petitioners have attacked the complainant-respondent No. 2 and his family members who have been critically injured.
7. Learned State counsel further contended that the instant bail application shall not lie as being successive after the first application of the same nature was rejected by the learned Sessions Judge on merits of the case. He further contended that the petitioners availed the choice and approached one of the forms i.e., Court of Sessions Judge, Jammu and as such, upon dismissal of the earlier bail application by the said competent Court, the instant successive 5 Bail App. No. 176/2024 application cannot lie. He contended that the investigation of the case is at initial stage and custodial questioning of the petitioners is needed for effective investigation of the case. He further contended that the petitioners are likely to misuse the concession of bail by not cooperating with the investigation and by threatening the prosecution witnesses. He contended that the concession of pre- arrest bail is an extraordinary power intended to protect those who apprehend their involvement on account of false and frivolous allegations. Learned counsel further submitted that although bail is a rule and its denial an exception, but that does not hold good in case of anticipatory bail which is to be granted only in exceptional and justified circumstances.
8. Learned State counsel in support of his contentions placed reliance on the authoritative judgments of the Hon‟ble Apex Court cited „G. R. Ananda Babu vs. The State of Tamil Nadu and another, criminal appeal arising out of SLP(Crl.) No. 213 of 2021, in which the third anticipatory bail application was rejected on the ground that same was not necessitated by any change in the circumstances of the case.
9. Learned counsel for the respondent No. 2/complainant very vehemently opposed the instant bail application on the grounds that petitioners have committed serious offences by making murderous assault on respondent No. 2 and his family members. He contended that the extraordinary concession of pre-arrest bail cannot be extended to the petitioners who have intentionally committed the offences under the case FIR in question. He submitted that earlier anticipatory bail application filed by the petitioners was dismissed on merits by the learned Sessions Judge, Jammu with the observations that they are involved in heinous offences and have not cooperated with the investigating agency. The 6 Bail App. No. 176/2024 learned counsel further submitted that the petitioners shall misuse the concession of bail by threatening the prosecution witnesses and also by fleeing from justice. Learned counsel also submitted that the instant successive bail application cannot lie after the first application came to be rejected by the learned Sessions Judge. He prayed for the rejection of the instant bail application.
10. Learned counsel for the respondent No. 2/complainant in support of his contentions placed reliance on the authoritative judgment cited Srikant Upadhyay and others vs. State of Bihar and anr, Special Leave Petiton (Crl.) No. 7940 of 2023 decided on 14th March, 2024, in which it was held that the power to grant anticipatory bail is an extraordinary power and it cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of the case.
11. I have perused the Case Diary produced by the learned State counsel.
12. Actually the provisions regarding anticipatory bail came to be legislated in order to protect those persons who genuinely apprehend their arrest on the basis of false and frivolous complaints/allegations actuated by the malafides. The Hon‟ble Apex Court and the other High Courts of the country through their judicial interpretations widened the scope of "pre-arrest bail provisions" in order to protect those persons also who notwithstanding the allegations of commission of crime against them are expected to behave as law abiding citizens, cooperate fully during the investigation of the case and abstain from tampering with the prosecution evidence and especially in respect of whom there is no apprehension of their misusing the concession of bail by absconding at the trial and repeating commission of crime. The said concession of pre-arrest 7 Bail App. No. 176/2024 bail was also considered for those whose custodial questioning is not felt imperative for the logical conclusion of the case. The guiding principles which are required to be kept in mind while considering a regular bail application do also apply for consideration of pre-arrest bail. Unnecessary arrests offend the constitutional guarantee of personal liberty protected under Article 21 of our Constitution. With the advancement of the human civilization and in view of the widened scope of the personal liberty guaranteed under the Constitution, the practice of making unnecessary arrests during the investigation of the case needs to be done away with. An Investigating Agency shall always bear in mind that an accused is presumed to be innocent till he is proved guilty and he has a valuable right of personal liberty inseparable from him except in cases and under circumstances itself provided under the Constitution, and the Bharatiya Nagrik Suraksha Sanhita (BNSS). An accused needs to be allowed to approach the competent courts under the provisions of Section 482 of BNSS, 2023 corresponding to Section 438 of the repealed Code of Criminal Procedure, 1973 (hereinafter referred to as „Code‟ for short) to seek pre-arrest bail which of course is likely to be granted in justified cases subject to reasonable terms and conditions having regard for the fair, smooth, scientific and logical conclusion of the investigation.
13. The Hon‟ble Apex Court has in a catena of authoritative pronouncements laid the guiding principles for consideration of pre-arrest bail which need to be strictly adhered to. The injury which an accused is likely to suffer in terms of his reputation in the estimation of the society by his unnecessary arrest is irreparable even after the pronouncement of an order of acquittal in his favour.
8 Bail App. No. 176/2024
14. It is never meant to say that the grant of pre-arrest bail shall be made a practice or a norm. Such concession being extraordinary in nature is always to be extended in justified cases. The limitations imposed on the grant of regular bail under Section 480 of BNSS, 2023 corresponding to Section 437 of the repealed Code of 1973 are deemed to be imported in the Section 482 of the BNSS corresponding to Section 437 of the repealed Code of 1973.
15. The Hon‟ble Apex Court in its Judgments cited as Siddharam Satlingappa Mhetre Vs. State of Maharastra 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 Judgments 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.
16. It was held by the Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharastra decided on 02/12/2010, AIR 2011 SC 312 that purpose of Anticipatory Bail is to uphold cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till he is proved to be guilty 9 Bail App. No. 176/2024 and that section 438 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 her 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.
17. 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 10 Bail App. No. 176/2024 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.
18. 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 11 Bail App. No. 176/2024 interests. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial."
19. In the recent judgment of Sushila Aggarwal and others vs. State (NCT of Delhi) and another decided on 29, 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 not 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 12 Bail App. No. 176/2024 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.
20. I am also supplemented in my opinion with an earlier authoritative judgment of the Hon‟ble Apex Court cited as Lal Kamlandra Pratap Singh vs. State of UP (2009) 4 SCC 437 in which the unnecessary arrests have been strongly condemned being violative of the right to liberty.
21. Admittedly, while considering the anticipatory bail under section 482 of the BNSS, the court has to primarily satisfy itself regarding the conditions precedent for seeking such special relief and when such prior conditions are fulfilled, then the court has to consider all those principles and guiding rules which are necessary under law for consideration of a regular bail application, So, it is apt at this juncture to reproduce the guiding principles that are being nowadays reiterated by the Hon‟ble Apex Court and other High Courts of our country for the courts and Magistrates to be kept in mind while considering a bail application and which are as under:-
i) The judicial discretion must be exercised with the utmost care and circumspection.
ii) That the Court must duly consider the nature and the circumstances of the case including:
a. A reasonable apprehension of the witnesses being tampered;
b. Investigation being hampered or c. The judicial process being impeded or subverted.
iii) The liberty of an individual must be balanced against the larger interests of the society and the State;13 Bail App. No. 176/2024
iv) The court must weigh in the judicial scales, pros and cons varying from case to case all along bearing in mind two paramount considerations viz;
v) Grant of bail quo an offence punishable with death or imprisonment for life is an exception and not the rule;
vi) The court at this stage is not conducting a preliminary trial but only seeking whether there is a case to go for trial;
vii) The nature of the charge is the vital factor, the nature of evidence is also pertinent, the punishment to which the party may be liable also bears upon the matter and the likelihood of the applicant interfering with the witnesses or otherwise polluting the course of justice.
viii) The facts and circumstances of the case play a predominant role.
(AIR 1962 SC 253; AIR 1978 SC 179: AIR 1978 429; 2003(ii) SLJ 389; 2004 (7) SCC 525; 2005 (1) SLJ 189; AIR 2005 SC 716; AIR 2007 SC 32458; AIR 2007 SC 451 and 2007 (ii) SLJ 634.
22. The Hon‟ble Apex Court in Gur Bakash Singh vs. State of Punjab AIR 1980 SC 1632, referred to the following extract from the American jurisprudence having bearing on the subject of bail, "where the grant of bail lies within discretion of the court, granting or denial is regulated to a large extent, by the facts and circumstances of each particular case. Since the object of detention order/imprisonment of the accused is to secure his appearance and submission to jurisdiction and the judgment of the court, the preliminary enquiry is whether a recognizance or bond would effect that end. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or necessarily justifying the grant or refusal of bail." 14 Bail App. No. 176/2024
23. It has been held in State of Rajasthan Jaipur vs. Balchand AIR 1977 SC 2447 I that it is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the court when considering the question of bail."
24. Admittedly, in case of non-bailable offence, which do not carry the sentence of death or imprisonment for life in alternative, bail is a rule and its denial an exception especially where there is nothing on record to show that the accused if admitted to bail will jump over the concession of bail and will tamper with the prosecution witnesses. (Jawaher Barua vs. State of Jammu & Kashmir 19073 JKLR-74).
25. It is a trite that two paramount considerations viz: likelihood of accused fleeing from justice and his tampering with prosecution evidence relate to the ensuring of fair trial of the case in a court of justice, It is essential that due and proper weightage should be bestowed on these two factors apart from others. The requirements as to bail are merely to secure the attendance of the accused at the trial (Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179; G. Nara Simhula vs. Public Prosecutor Andhra Pradesh AIR 1978 SC 429; Assad Ullah Khan and Others vs. State of Jammu & Kashmir SLJ 1980 J&K 31; Jeet Ram and etc. etc. vs. State of Himachal Pradesh 2003 Cr. Law Journal 736).
26. Bail or jail at the pre-trial or post conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognized under Article 21 that the crucial power to negate it is a great trust exercisable not 15 Bail App. No. 176/2024 casually but judiciously with lively concern for the cost to the individual and the community. After all personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law (G. N. Nara Simhula vs. Public Prosecutor Andhra Pradesh AIR 1978 SC 429).
27. Very cogent and overwhelming circumstances are necessary for an order seeking rejection of bail. It is now well settled by a catena of decisions of the Hon‟ble Supreme Court that the power to grant bail is not to be exercised as if punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. If there is no prima-facie case, there is no question of considering other circumstances (Bhagirathsinh Judeja vs. State of Gujarat AIR 1984 SC 372).
28. It is also a settled legal position that mere gravity of offence and severity of punishment is no ground for rejection of bail application especially where there is no allegations that if released on bail, the accused is likely to abscond with a view to evade the trial and secondly where there is no material on record to show that in the event of bail, the accused is likely to tamper with the prosecution witnesses (Jagram vs. State of Haryana 1996 (1) RCR 575; Jeet Ram and etc. etc. vs. State of Himachal Pradesh 2003 Cr.L.J. 736).
29. In state of Rajasthan Jaipur vs. Balchand AIR 1977 SC 2447. The Hon‟ble Apex Court has held, "basic rule may perhaps be tersely put as bail not jail, except where there are circumstances of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences 16 Bail App. No. 176/2024 or intimidating the witnesses and the like, by the petitioner who seeks enlargement on bail from the court.
30. Hon'ble Supreme Court in Sanjay Chandra Vs. Central Bureau of Investigation AIR 2012 S.C. 830 has held:-
"14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.
The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test.
In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson".
31. In the case in hand, admittedly, the petitioners had earlier approached the Sessions Court and they were granted pre-arrest bail order vide order dated 18.07.2024, but subsequently the learned Sessions Court dismissed the bail application vide order dated 05.08.2024.
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32. There is nothing on record of the CD File that petitioners violated the conditions attached to the interim order of the learned Sessions Judge dated 18.07.2024. The two co-accused, namely, Smt. Usha Rani and Smt. Shallu Sharma are presently on the pr-arrest interim bail granted by the competent Court.
33. In the facts and circumstances of the case, this Court does not feel that presence of the petitioners/accused in the custody is imperative for the progress of the investigation.
34. The opinion of this Court for extension of the concession of pre- arrest bail to the petitioners is supported by its perusal of the CD file. This Court is in agreement with the law relied upon by the learned counsel for the petitioners to the effect that there is no bar in approaching the High Court under the provisions of Section 482 of BNSS after the first application of the same nature is rejected by the Sessions Court. However, this Court upon being approached through successive bail application has to consider the grounds of the rejection of the earlier application by the Sessions Court.
35. For the foregoing discussion, the instant bail petition is allowed and SDPO North, Jammu / SHO Police Station, Bishnah, Jammu are directed that they shall in the event of arrest of petitioners in case FIR No. 98/2024 registered with Police Station Bishnah Jammu let them off, subject to petitioners furnishing bail and personal bonds to their satisfaction to the tune of Rs. 50,000/- each. This order shall however be subject to the following conditions:-
i. That the petitioners shall appear before the Investigating Officer of the case from 16.09.2024 to 18.08.2024 from 11.00 A.M. to 18 Bail App. No. 176/2024 02.00 P.M. and thereafter cooperate with Investigating Officer of the case as and when directed by him.
ii. That the petitioners 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 shall not leave the limits of Union Territory of Jammu and Kashmir without prior permission of the SHO/IO concerned.
iv. That the petitioners /accused shall not repeat the commission of crime.
v. That the petitioners /accused shall remain punctual at the trial of the case in case of presentation of final report/challan in terms of Section 193 of BNSS.
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.
Disposed of.
(Mohd. Yousuf Wani) Judge Jammu 14.08.2024 Bir Whether approved for reporting? Yes/No A copy of this order be provided to learned counsel for the petitioners under the seal and signature of the Secretary/Bench Secretary. Javid Iqbal 2024.08.14 20:25 I attest to the accuracy and integrity of this document