Jammu & Kashmir High Court
Daljit Singh Sasan vs Union Territory Of Jammu And on 1 August, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 24.07.2024.
Pronounced on: 01.08.2024.
Bail App No. 154/2024
CrlM No. 1110/2024
1. Daljit Singh Sasan .....Appellant(s)/Petitioner(s)
Age 66 years, S/o Puran Singh R/o
Ward No. 1, Jawahar Nagar,
Kathua
2. Harvinder Pal Singh
Age 34 years S/o Daljit Singh R/o
Ward No. 1, Jawahar Nagar,
Kathua
Through: Mr. Ravinder Sharma, Advocate with
Ms. Vasudha Sharma, Advocate.
vs
1. Union Territory of Jammu and ..... Respondent(s)
Kashmir
Th. SHO Womens Police Station,
Kathua
2. Uma Kapahi,
Age 34 years, W/o Akshay Jandial, R/o
Trikuta Nagar, Jammu
Through: Mr. Suneel Malhotra, GA and
Mr. Bhanu Jasrotia, GA for R-1
Mr. Parveen Kapahi, Advocate for R-2
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
1. Apprehending their arrest, the petitioners have approached this Court by invoking its extraordinary powers vested under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as „BNSS‟ for short) for grant of pre-arrest bail in their favour in case FIR No. 4/2024 registered with Police Station, Womens, Kathua under Sections 498-A, Bail App No. 154/2024 CrlM No. 1110/2024 2 341, 353, 354-A, 354-B, 382, 509 and 109 IPC on the grounds inter alia that they are respectable members of the society who have not committed the alleged offences; that the petitioner No. 1 is a senior citizen having retired from government services as head-master and is being presently practising as an advocate in District Courts, Kathua when the petitioner No. 2 is also a government employee presently posted as Data Entry Operator in the NIC Wing of the Deputy Commissioner‟s Office at Kathua; that they have been falsely and frivolously implicated in the case FIR No. 4/2024 registered with Police Station, Womens, Kathua on the complaint of the respondent No. 2; that they are the next door neighbours of the in-laws of the respondent No. 2 (complainant in the case FIR) and the presence of the petitioner No. 1 on the incident day on the spot of occurrence has become the cause of their involvement in the case upon misrepresentation of the facts by the respondent No. 2/complainant; that the petitioner No. 2 who happens to be the son of the petitioner No. 1 was not present at the scene of occurrence on the incident day and he has been implicated in the case FIR subsequently, which is evident from the fact that there is no mention of his presence on the spot, in the FIR lodged first in point of time; that the petitioner No. 2 has been serving as Date Entry Operator in the office of the Deputy Commissioner, Kathua who was on duty on the incident day which can be verified from his attendance register; that the petitioner No. 1 approached the court of learned Additional Sessions Judge, Kathua on 04.07.2024 seeking pre-arrest bail in his favour in the case FIR and the court granted interim pre-arrest bail till 09.07.2024, but his bail application was dismissed by the court on the Bail App No. 154/2024 CrlM No. 1110/2024 3 said date; that the in-laws of the respondent No. 2/complainant have already approached this Court through a petition under Section 528 of BNSS seeking quashment of the FIR, in which this Court has been pleased to pass an order dated 12.07.2024, whereby while granting liberty to the Investigating Agency to proceed with the investigation of the case, the presentation of the final report under Section 193 of BNSS has been made subject to the permission of this Court; that the offence under Section 498- A IPC is not apparently made out against the petitioners as they are not related to the respondent No. 2 from her in-laws side; that they are deeply rooted in the society and there is no question of their misusing the concession of bail by tampering with the prosecution evidence and/or by absconding at the trial; that their arrest and that too on the basis of false and frivolous allegations is likely to disrespect them in the estimation of the society; that the grant of bail to them would be in consonance with the directions issued by the Hon‟ble Supreme Court in case titled Arnesh Kumar Vs. State of Bihar reported in AIR 2014 SC 2756 and that they shall abide by all the conditions that may be imposed by this Court.
2. I have heard learned counsel for the parties at length.
3. Learned counsel for the petitioners, Mr. Ravinder Sharma, Advocate with Ms. Vasudha Sharma, Advocate while reiterating the stand taken in the instant petition submitted that the petitioners are law abiding citizens who have not committed offences under the alleged case FIR No. 04/2024 registered with Police Station, Womens, Kathua. That the petitioner No. 1 is a senior citizen and a retired head-master from Government Education Department, presently practising as an advocate in District Courts, Bail App No. 154/2024 CrlM No. 1110/2024 4 Kathua, when the petitioner No. 2 is also a government servant posted as a Data Entry Operator in the NIC Wing of Deputy Commissioner‟s Office, Kathua. That the petitioners are highly aggrieved of their involvement in the case FIR on basis of false and frivolous grounds.
4. Learned counsel submitted that actually the in-laws of the respondent No. 2 had executed a disinheritance deed against her as well as her husband, owing to which fact, she i.e. the respondent No. 2 upon being infuriated came to her in-laws house on 29.06.2024 along with her lady friend and upon approaching there started shouting loud as the gate of the house was closed. The petitioner No. 1 being the immediate neighbour of the in-laws of the respondent No. 2 asked her to keep calm and allow the controversy to settle amicably through intervention of the respectable members of the family. That the respondent No. 2 instead took it otherwise and asked the petitioner No. 1 not to give her any advice as she being an advocate knows best to handle the matters. That she also told the petitioner No. 1, that she will implicate him in the case FIR and he would have to face the consequences. That thereafter the respondent No. 2 went back to her parental house at Jammu whereafter she filed a false and frivolous complaint before the Police Station, Womens, Kathua on Whatsapp against her in-laws and also implicated the petitioners therein.
5. He further argued that the petitioner No. 1 was initially granted interim pre-arrest bail by the court of learned Additional Sessions Judge, Kathua on 04.07.2024. However, the court concerned dismissed the bail petition on 09.07.2024 upon a false report of the Police Station concerned to the effect that the petitioner No. 1 did not cooperate during the investigation Bail App No. 154/2024 CrlM No. 1110/2024 5 of the case. That it is an unbelievable version of the Police concerned because a law knowing person having been granted interim pre-arrest bail will never violate the conditions of the bail especially as to the requirement of the cooperation with the Investigating Officer concerned. That the petitioner No. 1 did approach the Investigating Officer and he was told that he will be called as and when required. That as per the conditions of the interim bail order dated 04.07.2024, the petitioner No. 1 had to cooperate with the Investigating Officer as and when directed, but the Police concerned is silent on the fact as to when they called for him and he did not appear.
6. He further argued that this Court as well as the court of Sessions are vested with the concurrent jurisdiction to entertain a plea for anticipatory bail and, as such, the option lies with the accused to approach either of the two forums. Thus, the instant application filed by the petitioner No. 1 is very well maintainable under law, notwithstanding the dismissal of the earlier petition by the court of learned Additional Sessions Judge, Kathua and that too otherwise than on merits. Learned counsel in support of his contention regarding the maintainability of this successive bail petition as regards petitioner No. 1 placed reliance on the judgments of this Court as also the Madhya Pradesh High Court respectively passed in Mohd. Shafi Masi and another Vs. UT of J&K and another bearing Bail App No. 13/2024 decided on 14.02.2024 and in Smt. Manisha Neema Vs. State of MP reported in 2003 (2) M.P.L.J. 587.
7. Learned counsel has further submitted that name of petitioner No. 2 was not mentioned in the FIR or even in the earlier statement of the respondent Bail App No. 154/2024 CrlM No. 1110/2024 6 No. 2/complainant as he was not present at home at the time of alleged incident. That the respondent No. 2/complainant has subsequently tried to improve her earlier statement thereby involving the petitioner No. 2. That the involvement of the petitioner No. 2 through her subsequent statements can never be considered as an elaboration which is permitted under law. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of this Court in case titled as Waseem Akram and another Vs. UT of J&K and another reported in 2024 Legal Eagle (J&K) 217 bearing Bail App No. 60/2024 decided on 06.05.2024, as according to the learned counsel this court granted anticipatory bail in the relied upon case in favour of the petitioners/accused who were allegedly involved in commission of offences punishable under Sections 354, 342, 498-A, 504, 506, 376 and 376-D on the main ground that the complainant/victim involved the accused by way of improvisation of her statement. That even if going by the false and frivolous complaint of the respondent No. 2, the commission of offence under Section 382 IPC as alleged is not made out against the petitioners.
8. It has been further argued by the learned counsel for the petitioners that in-
laws of the respondent No. 2 have already approached this Court with a petition under Section 528 of the BNSS seeking quashment of the FIR in which an interim order/direction has been passed by this Court restraining the respondent No. 1 from presenting the final report before the competent court without permission of this Court.
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9. That the co-accused in the case FIR who happen to be in-laws of the respondent No. 2 have already been granted interim bail by the Sessions Judge, Kathua, and are at large.
10. Learned counsel for the petitioners while placing reliance upon the authoritative judgment of the Hon‟ble Apex Court in Ramesh Kannojiya and another Vs. State of Uttarakhand and another bearing SLP (Crl) No. 7381/2023 dated 16.02.202 submitted that neighbours are not included in the definition of relatives under Section 498-A and, as such, the said offence against the neighbours is not justified. Learned counsel further submitted that the petitioners are presumed to be innocent till proved guilty and, as such, they are entitled to concession of pre-arrest bail so that they are saved from unnecessary arrest and humiliation. He submitted that they shall abide by any conditions that may be imposed by this Court. Learned counsel furnished for perusal of this Court the attendance certificate of the petitioner No. 2, which shows that he was on duty with effect from 27.06.2024 to 30.06.2024 and during which period he did not avail any casual leave.
11. Learned counsel for the petitioners in support of his contentions also placed reliance on authoritative judgment in case titled Suraj Mal vs. State (Delhi Administration) reported in 1979 AIR (SC) 1408.
12. M/s Suneel Malhotra and Bhanu Jasrotia, learned Government Advocates while arguing on behalf of respondent No. 1 submitted that the instant bail petition deserves outright dismissal on merits. They submitted that the petitioners seeking pre-arrest bail are involved in commission of heinous offences against women. It is submitted that the petitioners outraged the Bail App No. 154/2024 CrlM No. 1110/2024 8 modesty of the respondent No. 2/complainant and her lady friend, partially disrobed them and also snatched their mobile phones worth lakhs of rupees. They submitted that pre-arrest bail can be sought by only those persons who genuinely apprehend their arrest on account of false and frivolous allegations. They submitted that the petitioner No. 1 had already filed a similar application for pre-arrest bail in his favour before the Additional Sessions Judge, Kathua, in which he was granted interim pre- arrest bail subject to some terms and conditions but he violated the same, which resulted in the dismissal of the said bail application. They further contended that this successive bail petition in terms of Section 482 of BNSS is not maintainable in the backdrop of the dismissal of the earlier application.
13. Learned counsel for the respondent No. 2/complainant Mr. Parveen Kapahi, Advocate very vehemently argued that petitioners do not deserve any concession of pre-arrest bail which is in the form of an extraordinary concession for those only who apprehend their arrest on account of false and frivolous allegations. He submitted that the petitioners outraged the modesty of two women and also snatched their mobile phones. That the interim pre-arrest bail which was granted earlier by the Additional Sessions Judge, Kathua in favour of the petitioner No. 1 was subsequently denied and the petition itself was dismissed as the said accused did not chose to cooperate with the Investigating Officer.
14. He further submitted that contention of the learned counsel for the petitioners to the effect that the respondent No. 2/complainant did not make any mention of petitioner No. 2 in her earlier report including the Bail App No. 154/2024 CrlM No. 1110/2024 9 FIR is not justified under law because it is settled legal position that an FIR need not to be an encyclopaedia which must disclose all facts and details relating to the offence reported.
15. He 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. He submitted that the petitioners have been evading their arrest and they even did not choose to appear before this Court. That power to grant anticipatory bail is extraordinary and question of its grant needs the cautious and judicious discretion of the Court depending on facts and circumstances of each case. That Court has to be very cautious as the grant of pre-arrest protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of evidence.
16. Learned counsel further contended that successive anticipatory bail applications are not maintainable. He submitted that the High Court of Delhi in a case titled Sanjay Jain vs. State of NCT of Delhi bearing Bail Appln. No. 1752/2017 decided on 07.12.2017 declined bail to the accused who were involved in the offences under Sections 354, 354-A and 506 IPC upon holding that the offences against women are serious in nature. Learned counsel while placing reliance on the judgment cited as Amiya Kumar Sen vs. State of West Bengal reported in 1979 CRILJ 288 contended that a subsequent application for anticipatory bail cannot be filed before the High Court when the first application with the same prayer is declined by the Sessions Court.
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17. I have perused the case diary file concerned.
18. The case of the respondent No. 2/complainant which led to the registration of FIR No. 4/2024 on 29.06.2024 with Police Station, Womens, Kathua is that she is an advocate practising in J&K High Court and was married to one Askhay Jandial S/O Young Bahadur in the month of February, 2022. That right from beginning of her marriage, she was demanded dowry and gifts from her in-laws despite the fact that her parents spent about Rs. One Crore on her marriage. That her mother-in-law being a greedy lady has been making such demands since her marriage and she has also been insisting her husband for not allowing her to go in a family way as she requires a male child. That she suffered three abortions in a span of eight months at the instance of her mother-in-law who only wanted a male child from her. That after her third abortion, her health deteriorated badly whereupon her husband also fled away from Jammu to Kathua neglecting her. That she was prompted to approach the police concerned where an FIR came to be registered and she also filed a petition for domestic violence in the competent court. However, she compromised the matter with her in-laws only to save her marriage. Thereafter, her in-laws took a U-turn and disentitled her husband and also started threatening and abusing her. That on the incident day i.e. 29.06.2024 she at the instance of her husband went to the house of her in-laws along with her friend and driver. That her husband on one side insisted her to go to Kathua for collecting her belongings and jewellery but on the other side informed his home people about her going there. That when she reached the house of her in-laws at 02.30 P.M. she witnessed a gentleman posing as an Bail App No. 154/2024 CrlM No. 1110/2024 11 advocate standing in front of their gate and who was identified as Daljit Singh. That the said Daljit Singh (petitioner No. 1 in the bail petition) thrashed her, her driver, her lady friend and threatened her that he would not allow her to enter the house of her in-laws as the same would amount to trespassing. That she told him that there is no element of trespassing as she is daughter-in-law of the owners of the house. That said Daljit Singh/petitioner No. 1 openly declared that her in-laws had prompted him for stopping her from entering into the house and during said process he bet her, her driver and her lady friend, outraged their modesty and partially disrobed them, whereafter he fled away from the scene. That all was done by the petitioner No. 1 at the instance of her in-laws. That their mobile phones were also snatched by the petitioner No. 1 at the time of incident. The respondent No. 2/complainant approached the Police Station, Womens, Kathua and filed her complaint besides apprising the Deputy Inspector General of Police, Jammu-Samba-Kathua Range, Senior Superintendent of Police, Kathua and SHO, Women Cell, Kathua regarding the matter through Whatsapp.
19. Subsequent to lodging of FIR by the respondent No. 2 case FIR No. 4/2024 came to be registered with Police Station, Womens, Kathua under Section 498-A, 341, 354, 354-A, 354-B, 382, 506 and 109 IPC. After registration of FIR the Investigating Officer visited the place of occurrence i.e. Jawahar Nagar, Kathua, prepared the site plan as per the identification of the respondent No. 2 and also recorded the statements of witnesses under Section 180 of BNSS. That the statements of respondent No. 2 as well as her lady friend were also recorded under Section 183 of Bail App No. 154/2024 CrlM No. 1110/2024 12 BNSS before the Magistrate. In her statement recorded under Section 183 BNSS, the respondent No. 2 also revealed that while the petitioner No. 1 was outraging her modesty and assaulting her along with her friend, the son of the petitioner No. 1 i.e. the petitioner No. 2 also came on spot, who caught hold of her lady friend from back side, dragged her and snatched her mobile phone. That the petitioner No. 2 also snatched her mobile phone. As per the investigation so far conducted commission of offences under sections 341, 354, 354-A, 354-B, 382, 506 are alleged to have been established against the petitioners. A perusal of the CD file also reveals that the petitioner No. 1 had approached the Additional Sessions Judge, Kathua for grant of anticipatory bail, who was granted interim bail order by the court concerned but the said bail order was received by the Police Station through post and the petitioner No. 1 did not choose to appear in the Police Station till date. It is also borne out from the CD file that search of the petitioners is going on.
20. Keeping in view the perusal of the instant bail petition, case diary file and the consideration of the rival arguments advanced on both the sides, in light of the law of the subject, this Court is of the considered opinion that it may meet the ends of justice, in case the extraordinary concession of pre-arrest bail sought by the petitioners is denied to petitioner No. 1, namely, Daljit Singh Sasan while being extended to petitioner No. 2, namely, Harvinder Pal Singh.
21. The petitioner No. 1 had earlier approached the territorial Sessions Court for grant of the same relief of pre-arrest bail and initially he was granted interim pre-arrest bail concession subject to some terms and conditions Bail App No. 154/2024 CrlM No. 1110/2024 13 inter alia a condition to the effect that he shall make available himself to the Investigating Officer of the case in connection with the investigation of the case. Subsequently, the said interim pre-arrest bail order dated 04.07.2024 was not extended and even his bail petition was dismissed by the court vide order dated 09.07.2024 as it was reported by the Police concerned to the Additional Sessions Judge, Kathua that the petitioner No. 1/accused is absconding and he did not appear in the Police Station after seeking the interim pre-arrest bail. It was observed by the concerned territorial court that the petitioner No. 1/accused is alleged to have committed inter alia offence under Section 382 IPC which is heinous, non bailable and carries punishment of imprisonment of 10 years.
22. 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 bail was also considered for those whose custodial questioning is not felt imperative for the logical conclusion of the case. The guiding principles Bail App No. 154/2024 CrlM No. 1110/2024 14 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.
23. 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.
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24. 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.
25. In the case in hand, the Police concerned in its report submitted to the Additional Sessions Judge, Kathua inter alia mentioned that pre arrest bail order dated 04.07.2024 was received through post and the petitioner No. 1/accused did not attend the Police Station in connection with the investigation of the case. The learned Additional Sessions Judge, Kathua rejected his earlier anticipatory bail petition having regard to the conduct exhibited by him after seeking the interim pre-arrest bail order.
26. No doubt, the provisions of Section 483 of BNSS provide an option to the accused person to either approach the High Court or the Sessions Court seeking pre-arrest bail in his favour, upon reasonable apprehension of his arrest, but he shall do so behaving as a law abiding citizen. A person after getting the interim pre-arrest bail order cannot while keeping a copy of the order in his pocket go absconding to the prejudice of the investigation of the case and any such conduct tantamounts to abuse of process of law. An accused who has earlier filed a pre-arrest bail application before the Sessions Court cannot successively involve the jurisdiction of the High Court upon dismissal of his earlier application on account of violation of bail conditions. The conditions which are being imposed by the criminal Bail App No. 154/2024 CrlM No. 1110/2024 16 courts while granting either regular or anticipatory bail are never deemed to be exhaustive but inclusive and the conditions to the effect that the accused shall even voluntarily associate with the Investigating Officer by making himself available together with maintaining a behaviour and conduct thereby assuring not only the Investigating Agency but the society at large that he shall not repeat the commission of crime, make any inducement, threat or promise to any person acquainted with the facts of the case, so as to debar him from disclosing such facts to the court or to any Police Officer, are deemed to be inherently attached to the bail orders. There appears in the opinion of this Court no justification for the petitioner No. 1 to successively approach this Court seeking anticipatory bail after dismissal of his earlier bail petition by the learned Additional Sessions Judge. He appears to have made the law subservient.
27. It is also an admitted position of law that an FIR need not to be an encyclopaedia of the whole incident. It is just an information given to the Police first in point of time regarding the commission of a cognizable offence. Such information can be given by any person not being a victim of crime or his relative or neighbour. Detailed account of an incident is not necessarily to be made through such first information report.
28. The petitioner No. 2 who happens to be son of petitioner No. 1 is reported to be a government employee, presently posted as Data Entry Operator in the NIC Wing of the Deputy Commissioner‟s Office, Kathua. He has approached this Court for the first time through the instant application. He being a government employee is not likely to misuse the concession, avoid cooperation during investigation, make any inducement, threat or promise Bail App No. 154/2024 CrlM No. 1110/2024 17 to the prosecution witnesses or to abscond at the trial. He can also be lawfully questioned in respect of the alleged commission of theft covered under Section 382 IPC corresponding to Section 307 of Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as „BNS‟ for short).
29. 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.
30. 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 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 Bail App No. 154/2024 CrlM No. 1110/2024 18 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.
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;
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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."Bail App No. 154/2024 CrlM No. 1110/2024 20
31. 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 from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific Bail App No. 154/2024 CrlM No. 1110/2024 21 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.
32. 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.
33. 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;
iv) The court must weigh in the judicial scales, pros and cons varying Bail App No. 154/2024 CrlM No. 1110/2024 22 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.
34. 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."
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35. 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."
36. 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).
37. 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).
38. 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 Bail App No. 154/2024 CrlM No. 1110/2024 24 trust exercisable not 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).
39. 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).
40. 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).
41. 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 Bail App No. 154/2024 CrlM No. 1110/2024 25 thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating the witnesses and the like, by the petitioner who seeks enlargement on bail from the court.
42. 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".
43. Hon'ble Apex Court has held in another recent case titled Dataram Singh V. State of UP and Anr. (2018) 3 SCC 22 at paras 2 to 7 of its judgment as under:-
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"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences."
"3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do in the facts and in the circumstances of a case.
44. Hon‟ble Apex Court has recently in case titled Srikant Upadhyay and others vs. State of Bihar and another reported in 2024 INSC 202 bearing SLP (Crl) No. 7940/2023 decided on 14.03.2023 held as under:
"The power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. 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 each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Courts shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases."
45. The Punjab and Haryana High Court in case titled Harpreet Singh vs. State of Punjab reported in 2023: PHHC: 065351 bearing CRM-M No. 21153/2023 decided on 28.04.2023 has held that „a second anticipatory bail application is not maintainable‟.
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46. It has been held by High Court of Calcutta in Amiya Kumar Sen vs. State of West Bengal reported in 1979 CRILJ 288 also relied upon by the learned counsel for the respondent No. 2/complainant that „second petition for anticipatory bail before the High Court is not maintainable after rejection of the first one by the court of Sessions‟.
47. For the foregoing discussion, the instant bail petition is rejected to the extent of petitioner No. 1, namely, Daljit Singh Sasan S/o Puran Singh R/O Ward No. 1, Jawahar Nagar, Kathua and allowed to the extent of petitioner No. 2, namely, Harvinder Pal Singh, S/o Daljit Singh, R/o Ward No. 1, Jawahar Nagar, Kathua. SHO Police Station, Womens, Kathua is, as such, directed that she shall in the event of arrest of petitioner No. 2, namely, Harvinder Pal Singh, S/o Daljit Singh, R/o Ward No. 1, Jawahar Nagar, Kathua in case FIR No. 4/2024 registered with her Police Station, let him off, subject to his furnishing bail and personal bonds to her satisfaction to the tune of Rs. 50,000/- each. This order to the extent of petitioner No. 2 shall however be subject to the following conditions:
i. That the petitioner No. 2/accused shall appear before the Investigating Officer from 03.08.2024 to 07.08.2024 from 10.00 A.M. to 02.00 P.M. and thereafter cooperate with Investigating Officer of the case as and when directed by him.
ii. That the petitioner No. 2/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.Bail App No. 154/2024 CrlM No. 1110/2024 28
iii. That the petitioner No. 2/accused shall not leave the territory of Union Territory of Jammu and Kashmir without prior permission of the SHO/IO concerned.
iv. That the petitioner No. 2/accused shall not repeat the commission of crime.
v. That the petitioner No. 2/accused shall remain punctual at the trial of the case in case of presentation of final report/challan under Section 193 of BNSS.
vi. In case of any recovery from or at the instance of the petitioner No. 2, he shall be deemed to be in the custody for the purpose of Section 23(2) of Bharatiya Sakshya Adhiniyam, 2023.
48. Disposed of.
(MOHD YOUSUF WANI) JUDGE Jammu 01.08.2024 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Sahil Padha 2024.08.02 17:16 I attest to the accuracy and integrity of this document