Jammu & Kashmir High Court - Srinagar Bench
Mujeeb Ahmad Koka vs Union Territory Of J And K Through on 3 April, 2026
Serial No. 1
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App No. 1/2026
Pronounced on 03/04/2026
Uploaded on /04/2026
Mujeeb Ahmad Koka
S/O. Gh Mohiudin Koka
R/O. Shankerpora, Dooru, Anantnag
...Petitioner(s)/Appellant(s).
Through: Mr. Mohammad Ashraf Malik, Advocate with
Mr. Salfi Izhar, Advocate
Vs.
Union Territory of J and K Through
SHO Police Station Anantnag
...Respondent(s).
Through: Mr. Ilyas Nazir Laway, Ld. Govt. Advocate
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
1. Through the medium of the instant successive petition having been filed in terms of the provisions of Section 483 of the Bharatiya Nagarik Surkasha Sanhita (hereinafter referred to as the 'BNSS' for short) read with Article 21 of the constitution of India, the petitioner has sought the grant of short-term bail on exclusive humanitarian grounds in his favour in Case FIR No 126/2025 of Police Station, Anantnag in the offences under Sections 61, 111, 318(4), 351(2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as the 'BNS' for short), on the grounds, inter alia, that he has been implicated as a co-accused (A3) in the case FIR in question in which the investigation is already complete with the presentation of the final report/charge-sheet in terms of the provisions of Bail App No. 1/2026 Page No 1 Section 193 BNSS before the Court of ld. Principal Sessions Judge, Anantnag (hereinafter referred to as the 'Trial Court' for short). That the petitioner had earlier filed a formal bail petition before the ld. Trial Court which came to be dismissed by the ld. Trial Court along with the bail applications of the co-accused through a common order dated 24.09.2025 on the main ground that he along with the co-accused is involved in serious and heinous offences of commission of cheating, organized crime and criminal intimidation under conspiracy. That subsequently he separately filed an application for grant of short-term bail in his favour on the ground that his wife- Beauty Jan is in her advanced stage of pregnancy having no other close relative at their home, therefore requiring his presence for at least some reasonable time pre and post-delivery to take her care as well as the care of the expected new born. That the said bail application was also dismissed by the ld. Trial Court on the same ground that petitioner/accused is involved in the heinous and anti-social offences. That the ld. Trial Court has erred in considering the petitioner's plea for short term bail by mistreating the same as the review of the earlier rejection order without appreciating that child birth is a one-time irreversible event constituting an exceptional humanitarian circumstance warranting temporary enlargement on bail. That petitioner is a permanent resident of District Anantnag having deep roots in the society with no criminal antecedents and, as such, there is no question of his misusing the concession of short-term bail, if granted, in his favor. That he undertakes to abide by any conditions that may be imposed by this Court.
Bail App No. 1/2026 Page No 2
2. The respondent-UT vehemently resisted the instant bail petition through its counsel Mr. Ilyas Nazir Laway, ld. GA on the grounds that the petitioner does not deserve the concession of even short-term bail on humanitarian grounds on account of his being involved in heinous offences of commission of organized crime and cheating under conspiracy. It has been averred in the memo of objections that on 13.06.2025, Police Station, Anantnag received a written complaint through District Police, Anantnag, forwarded by Crime Branch, Jammu and submitted by the complainant Shr. Tilak Raj Singh S/O. Hari Chand R/O. Kishtwar to the effect that the complainant is the husband of proprietor namely Sapna Devi who had a license of NTPF Forest Division, Kashmir, for sale and purchase of herbal material. That the petitioner along with the co-accused namely Tasaduq Hussain Dar and Mohammad Iqbal Wani made an agreement with him in the month of September, 2024 for selling Garlic/Lahson and took Rs. 1,78,000/- lacs as advance from him while agreeing to sell the commodity to him within a period of two days. That the accused persons including the petitioner did not deliver the material to the complainant and instead demanded extra payment from him under one or the other pretext so much so that complainant felt constrained to pay Rs. 56 lacs to the accused including the petitioner. That the complainant time and again requested the accused to deliver the agreed material but they did not deliver the same. That they lastly refused to deliver the agreed material as also to refund the amount to the complainant and instead threatened the complainant of dire Bail App No. 1/2026 Page No 3 consequences. That on receipt of the said information case FIR in question came to be registered and investigation started.
That during the course of investigating the statement of the complainant was recorded under Sections 180 and 183 of BNSS. That during investigation it came to light that intention of cheating the complainant from the very beginning on the part of the accused including the petitioner was clear on account of the fact that they did not possess any license or permission from the Forest Department for procurement of wild garlic.
That during the course of investigation, it has emerged that all the accused including petitioner acting in concert deliberately floated multiple firms under different names as a pre-planned modus operandi to cheat and defraud innocent persons by inducing them on false and fabricated assurances to invest money on the pretext of sale and purchase of land, precious stones, forest produce and other commodities. That during the investigation the petitioner namely Mujeeb Ahmad Koka S/O. Gh Mohiudin Koka R/O. Shankerpora, Dooru, Anantnag was arrested on 08.08.2025.
That the ld. Trial Court rejected the applications for bail of the petitioner twice on the ground of his involvement in serious offences of organized crime and cheating.
That the conduct of the petitioner, marked by intimidation in defrauding the victims, clearly indicates a strong likelihood that he may Bail App No. 1/2026 Page No 4 influence, threaten, or otherwise intimidate the prosecution witness during the course of the trial.
That there is every apprehension that the petitioner may interfere with, influence or adversely affect the further investigation of the instant case.
That the material collected by the prosecution and produced before the ld. Trial Court sufficiently connects the petitioner with the commission of the offences and hence does not deserve the concession of bail.
That the entire evidence on record so far collected during the course of investigation is self-explanatory which suggests in explicit terms involvement of the petitioner in the offences.
That the offences in the commission of which the petitioner is involved are heinous and grave besides non-bailable in character, and as such, the petitioner is not entitled to the concession of bail. That the petitioner has filed this application for the purpose of evading the process of law and if he will be enlarged on bail at this juncture there is every likelihood of the petitioner's going absconded and prosecution has already collected the evidence and made a prima facie case against the applicant.
That the petitioner has agitated false and fabricated grounds in order to defeat the process of law for undue advantage, as such, the petition is not maintainable in the eyes of law and needs to be dismissed.
3. I have heard the learned counsel for the parties in respect of the matter.
Bail App No. 1/2026 Page No 5
4. The ld. Counsel for the petitioner during his arguments, inter alia, submitted that the petitioner/accused has been implicated in the case FIR for the alleged commission of the offences punishable under Sections 61, 111, 318(4), 351(2) of the BNS which do not carry an embargo in respect of the bail. He contended that the application that came to be filed by the petitioner first in point of time for his enlargement on merits of the case came to be dismissed by the ld. Trial Court through the common order dated 24.09.2025 passed on the said application and the applications of the co-accused. That the petitioner was subsequently constrained to file a separate application for grant of short-term bail in his favour on humanitarian grounds as his wife was then in advanced stage of pregnancy having no other close relative to attend him pre and post- delivery. That unfortunately, the said application was also denied by the ld. Trial Court on the ground of the alleged involvement of the petitioner in heinous offences. The learned counsel submitted that it is well settled that the merits of the case do not apply where a case appears to be made for grant of temporary short-term bail on humanitarian grounds. He submitted that ld. Trial Court was not powerless to consider such application by being pleased to grant a short-term temporary bail to the accused with a view to allow him to attend his wife who had no other relative to attend her.
5. The learned counsel further contended that the wife of the petitioner, after her delivery fell ill and is in need of immediate medical care.
Bail App No. 1/2026 Page No 6
6. It was contended by the learned counsel that temporary/short-term bail on humanitarian grounds is a recognized facet of the criminal court's discretionary jurisdiction and on account of unavoidable family circumstances such as imminent childbirth of spouse, absence of family support, serious illness, or funerals have been held to justify limited duration bail even when regular bail is declined, in order to balance the interests of justice and humanity
7. It was further contended by the learned counsel that various High Courts of the country including the Rajasthan High Court and Bombay High Court, have granted temporary bail to under-trial prisoners or convicts to enable them to attend to pregnant wives or to ensure that childbirth does not occur in custodial conditions, emphasizing that criminal justice must remain humane and reformative and that pregnancy and childbirth demand a sensitive, dignified approach.
8. It was argued by the learned counsel that Article 21 of the Constitution of India has been consistently interpreted by the Hon'ble Supreme Court to include not merely animal existence, but a life of dignity, including the right to family life, protection of motherhood, presence of a husband during the childbirth of his wife and his ability to support her medically and emotionally as facets of family life and dignity protected under Article 21.
9. It was further contended that childbirth is a one-time, irreversible event and denial of the Petitioner's presence even post delivery will cause irreversible emotional psychological harm to both the Petitioner and his Bail App No. 1/2026 Page No 7 wife, which cannot later be remedied even if the Petitioner is ultimately acquitted and the balance of convenience clearly tilts in favour of granting short-term bail with safeguards.
10. It was further submitted by the learned counsel that the apprehension of the prosecution regarding misuse of the concession of bail can be taken care of by imposing strict conditions like:
i. Surrender of passport, if any, and undertaking not to apply for any travel document.
ii. Requirement to share his mobile numbers and to remain reachable at all times.
iii. Execution of personal bond with solvent sureties to the satisfaction of the trial court.
11. That the petitioner has clean antecedents and is a permanent resident having deep roots in the locality. That he has never misused liberty and if a person is well settled in the community and needs bail for genuine personal reasons, the Court ought not to reject short-term bail merely on assumptions.
12. That the ld. Trial Court has failed to appreciate the distinction between the i. A prayer for regular bail on merits of the case, and, ii. A prayer for temporary bail for a narrowly defined period to meet an emergent humanitarian situation.
iii. That by conflating both, the court exercised jurisdiction with material irregularity, warranting interference under the special powers of this Hon'ble Court regarding bail.
Bail App No. 1/2026 Page No 8
13. He further contended that refusal of temporary bail by the Id. Trial court in the given facts, has resulted in unjustified restriction on personal liberty of the petitioner.
14. He further contended that no prejudice will be caused to the prosecution by granting the temporary relief, as the trial is at the pre- charge stage, evidence is primarily documentary and in custody of the State, and the petitioner is willing to accept any additional condition that this Court may deem fit to impose.
15. The learned counsel in support of his contentions placed reliance on the judgments cited as:
i. Preet @ Maru & Ors vs. UT Chandigrah in CRM No. 24929 of 2023 in CRA-D No. 360 of 2020.
ii. Ravish Sood Alias Aman vs. The State of Madhya Pradesh MCRC No. 17988 of 2022 dated: 18-04-2022.
iii. Ajay Kumar vs. State of Punjab 2026 SCC Online P&H 417 in CRM-M 70149 of 2025 decided on January 8, 2026.
iv. Sajad Ahmad Bhat vs. UT of J&K in Bail App No. 47/2022 decided on 03.06.2022.
v. Mohammad Shafi Gojar vs. UT of J&K & Another in Bail App No. 20/2024 dated 06.05.2025
16. The learned counsel for the respondent Mr. Ilyas Nazir Laway, ld. GA however strongly resisted the grant of even short-term temporary bail in favor of the petitioner who is involved in serious offences of cheating and organized crime under conspiracy. He submitted that Court has to struck a balance between an individual right and the rights of the society in general.
Bail App No. 1/2026 Page No 9
17. He contended that having regard to the involvement of the petitioner in serious offences, there is every apprehension of his misusing the concession of bail by tampering with the prosecution evidence and absconding at the trial. The learned counsel in support of his arguments placed reliance on the authoritative judgment cited as, "State of UP vs. Amarmani Tripathi, (2025) 8 SCC 21".
18. Keeping in view the perusal of the application, the objections filed in rebuttal and the consideration of the arguments advanced on both the sides, this Court is of the considered opinion that it may meet the ends of justice in case the petitioner is admitted to a short-term temporary bail on humanitarian grounds so as to enable him to take care of his wife who has reportedly now delivered a baby and is not keeping good health post- delivery.
19. This Court can derive its authority from the provisions of the Section 483 of the BNSS read with the provisions of Article 21 of the Constitution, to address an eventuality, like the present one and pass the appropriate orders regarding temporary bail subject to some stringent conditions, under exceptional and compelling circumstances. After all, a health issue even of a close relative of detenue is of paramount consideration. All under-trial and convicts have their fundamental right to claim proper medical care and treatment not only of themselves but also of their close relatives. However, the conditions viz. gravity of the offences charged against an accused, likelihood of his absconding at the trial and influencing the prosecution witnesses, impact of the crime Bail App No. 1/2026 Page No 10 charged against the accused on the society and State shall weigh the consideration of a court while overlooking the statutory bars. When bail is to be considered on humanitarian grounds, the merits of the case do not apply. The basic power to grant bail is derived from the procedural law i.e. BNSS/ CrPC and the limitations on the power of a court imposed either by the procedural law or any other special statue, can under some compelling circumstances be read with the relevant provisions of the Constitution and some extra-ordinary provisions itself contained in the procedural law.
Otherwise while considering a bail under Section 483 BNSS in a routine manner, the statutory restrictions/limitations as laid down under Section 437 of the Code (corresponding to Section 480 BNSS) have also to be considered.
20. In its opinion this court is fortified with a judgment of the Hon'ble Karnataka High Court cited as "Syed Abdul Ala vs Narcotic Control Bureau", South,2003 Cri.L.J 999 (Kar) decided on 17 December, 2002 wherein it has been laid down that High Court under Section 439 of the Code of Criminal Procedure 1973(corresponding to Section 483 of BNSS) is not powerless to consider bail on humanitarian grounds not-with- standing the restrictions imposed by section 37 of the NDPS Act. It has been held in the case concerned that provisions of Section 37 of the NDPS Act apply where bail is to be considered on merits. It was agitated before the Court in the reasoned case that power to grant bail is basically derived from Code of Criminal Procedure and not from the NDPS Act and the Bail App No. 1/2026 Page No 11 later only qualifies the power of the court vested under the code. It was held that provisions of Section 37 of NDPS Act do not clamp or cap powers of the High Court to grant bail under section 439 of the Code in its entirety. It is profitable to reproduce paras 9 and 10 of the judgment as under: -
"9. The provisions of Section 37 of the NDPS Act make a drastic departure from the conventional cannons of burden of proof of prima facie case against the accused on the prosecution even at the stage of bail. In respect of the offences under the NDPS Act, the onus is on the accused to prove the innocence/non-complicity in order to secure bail. The restrictions in Section 37 relates to prima-facie material regarding the guilt of the accused. The powers of High Court to grant bail under Section 439 are quite wide and discretionary. Notwithstanding a prima facie case of guilt, under exceptional circumstances, the High Court in its discretion can grant bail. The embargo placed under Section 37 of the NDPS Act operates only when the Court is considering the bail application on merits. Thus, the provisions of Section 37 do not clamp or cap the powers of High Court to grant bail under Section 439 in its entirety. In other words, Section 37 operates only as partial eclipse on the powers of the High Court. While deciding the application on merits with reference to prima facie material of guilt then only the provisions of Section 37 operate and they have to be read with the provisions of Section 439 of the Cr. P.C. When the bail is to be granted on other extenuating circumstances or humanitarian ground like the medical ground, the powers of the High Court under Section 439 are not curtailed. The provisions of Section 37 do not operate as a blanket ban on the powers of the High Court under Section 439 of the Cr. P.C.
10. On careful reading of the decisions of the Supreme Court in Kishan Lal's case, I find that there is no ratio laid down to the effect declaring that Section 37 of the NDPS Act, operates as a total blanket ban on the powers of High Court under Section 439 of the Cr. P.C. In the present case, the accused is seeking bail on medical grounds and the Court is considering the case of the petitioner dehors, prima facie material of guilt placed by the prosecution. On humanitarian considerations, the powers of High Court under Section 439 of the Cr. P.C., to grant bail is not eroded or affected by the provisions of Section 37 of the NDPS Act."Bail App No. 1/2026 Page No 12
21. In "Jasvinder Singh Vs State of J&K" B.A No: 156/2019 decided on 12.04.2021 bail on humanitarian grounds (medical grounds) was granted by this Court to an accused who was suffering from diabetes, which had substantially affected his eye sight as per the medical records brought to the notice of the Court. It was authoritatively held in the case that the Sec 37 of the NDPS Act only prescribes the limitations on the release of a person on bail. That the powers to grant bail stand vested with the High Court under Section 439 of the Code of Criminal Procedure. That Section 37 of the NDPS Act, comes into play only when bail of a person/accused of an offence involving commercial quantity of a contraband is being considered on merits and the limitations contained therein would not apply when bail is to be granted on humanitarian grounds like medical ground. In such cases the powers of the High Court U/s 439 of the Cr.P.C are not curtailed. Thus the provisions contained under Section 37 of the NDPS Act do not act as a blanket ban on the powers of the High Court U/s 439 of the Cr.P.C.
22. It is a settled legal position that basic human rights cannot be denied to a person regardless of the allegations of the involvement against him. Refusing to grant temporary bail on exclusive health grounds of a spouse of a detenue may sometimes endanger the life of the patient.
23. For the foregoing discussion, the application is allowed for one- time temporary bail of 21 Days (Twenty-One Days) in favour of the petitioner namely Mujeeb Ahmad Koka S/O. Gh Mohiudin Koka R/O. Shankerpora, Dooru, Anantnag with effect from the date of his release Bail App No. 1/2026 Page No 13 pursuant to this order in case FIR No. FIR No 126/2025 of Police Station, Anantnag in the offences under Sections 61, 111, 318(4), 351(2) so as to enable him to take immediate steps for treatment of his wife and care of his new born.
24. This order shall, however, be subject to the following conditions:
i. Petitioner/accused shall furnish surety and personal bonds in the amounts of Rs. 1 Lakh (One Lakh) each (surety bond of Rs. One Lakh to be furnished by two persons amongst the relatives of the petitioner each liable in the amount of Rs. 50,000/-) to the satisfaction of the ld. Registrar Judicial of this Court and the Superintendent of the Jail concerned respectively.
ii. Petitioner/accused shall not cause any threat, inducement or pressure to any of the prosecution witnesses so as to dissuade them from disclosing the true facts of the case before the Court.
iii. The petitioner/accused shall surrender his passport, if any, having been issued in his favour, before the ld. Registrar Judicial of this Court during the period of the bail.
iv. The petitioner/accused shall share all his mobile numbers to the SHO P/S Anantnag.
v. The petitioner/accused shall not repeat the commission of any crime while being on bail.
vi. The petitioner/accused shall surrender before the Superintendent of the Jail concerned in which he is presently lodged on the twenty second day of his release in the case whereupon the Superintendent of the jail concerned shall lodge him in his jail as an under-trial in the case FIR in question and shall continue to produce him along with the co-accused through the virtual mode at the hearings of the case.Bail App No. 1/2026 Page No 14
vii. The ld. Trial Court shall be competent to proceed against the petitioner/accused in case of violation of any bail conditions.
viii. In case the requisite surety bonds are furnished to the satisfaction of the Registry of this Court, a formal release order shall be issued by the Registrar Judicial directing the Superintendent of the Jail concerned to release the petitioner provided he is not involved in any other cases.
25. This application is disposed of.
(MOHD YOUSUF WANI) JUDGE SRINAGAR 03.04.2026 Shahid Manzoor Bail App No. 1/2026 Page No 15