Reserved On: 31.01.2022 vs Union Territory Of J&K &Ors
2022 Latest Caselaw 37 j&K/2

Citation : 2022 Latest Caselaw 37 j&K/2
Judgement Date : 3 February, 2022

Jammu & Kashmir High Court - Srinagar Bench

Reserved On: 31.01.2022 vs Union Territory Of J&K &Ors on 3 February, 2022

    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                   THROUGH VIRTUAL MODE

                                      Bail Appl. No. 155/2021

                                      Reserved on: 31.01.2022
                                      Pronounced on: 03.02.2022
Ghulam Nabi Malik
                                             ...Petitioner(s)

           Through: Mr. B.A.Tak, Advocate.

                               Vs.
Union Territory of J&K &Ors.

                                            ...Respondent(s)

           Through: Mr. Sajad Ashraf, GA.

CORAM:-

HON'BLE MR. JUSTICE MOHD. AKRAM CHOWDHARY, JUDGE

                                 ORDER

1. The present application has been filed under Section 438 Cr.PC for

grant of bail in anticipation of arrest of the petitioner in case FIR

No.174 of 2009 registered at the Police Station, Kupwara under

Sections 153-A/120-B RPC and 13 UA(P) Act.

2. Learned counsel for the petitioner vehemently argued that the

respondent-police is hell-bent to take the petitioner into custody, in

an old case of the year 2009 implicating him falsely; that the

petitioner is a respected person of the area and his image shall be

tarnished in public, in case respondents succeed to arrest him; that

the custodial interrogation of the petitioner as an accused in a case

of 2009 is unwarranted at this stage and prayed that he be admitted Page |2

to bail in anticipation of his arrest. Learned counsel further argued

that the petitioner had initially applied for grant of bail in

anticipation of his arrest before the court of learned Sessions Judge,

Kupwara, however, the said court did not find favour with the

application and it was rejected vide order dated 08.12.2021.

3. Mr. Sajad Ashraf, learned GA, appearing for the respondents, on

the other-hand, vehemently argued that the petitioner is not entitled

to grant of bail in anticipation of his arrest in a serious case for the

commission of offences punishable under Sections 153-A and 120-

B RPC. He further argued that in view of the serious and grave

nature of the offence, petition be rejected so that the petitioner is

prosecuted in a proper manner before the court of law.

4. Heard and considered.

5. The factual matrix of the case is that on 13.11.2009 (Friday), after

conclusion of Friday congregation, an unruly mob in the form of

procession came out led by eight people including the petitioner

herein, raising anti-national slogans against the sovereignty and

integrity of India; that through their speeches they tried to spread

hatred against India urging people to wage war at each and every

level.

6. The case was registered at Police Station, Kupwara vide FIR

No.174/2009 for the commission of offences punishable under

Sections 153-A/120-B RPC and 13 of UA(P) Act, however, during

the course of investigation the commission of offences punishable

under Sections 153-A/120-B RPC were only proved and not u/s 13 Page |3

of UA(P) Act. During the course of investigation, it was found that

the persons involved in the incident were affiliated with Hurriyat.

7. The court below vide order dated 08.12.2021 rejected the bail plea

of the petitioner by passing the following order:-

"...Having considered the contention put-forth by the

ld. counsel for the complainant and the prosecution,

I am of the opinion that the contention of the ld.

counsel for the petitioner is ill conceived and

misplaced because it is the application in terms of

Section 438 Cr.PC 1973. While disposing of the

instant application the question of cognizance does

not arise as the application on hand pertains to bail

rather than stage for taking cognizance. Here in the

present case vide police report the alleged offence is

against State and no prima facie case for grant of

anticipatory bail is made out. Accordingly the

application is rejected be consigned to records after

due completion under rules."

8. The Hon'ble Apex Court in a catena of judgments has laid down

that while dealing with the application for bail in a non-bailable

offences, the courts shall take into consideration the gravity of the

offence, severity of punishment which it carries, prima facie

satisfaction of the court in support of charge, impact of such

offences on larger public interest, possibility of tampering of

evidence by accused and other like factors.

Page |4

9. The offence under Section 153-A RPC is punishable with an

imprisonment which shall not be less than four years but may

extend to ten years and shall also be liable to fine; whereas the

offence punishable under Section 120-B RPC is punishable in the

same manner as if had abetted such offence.

10.The petitioner, even if the case is proved against him, shall be

punishable to the maximum sentence of ten years, therefore, there

is no statutory bar to grant him bail. The petitioner is required in an

old case which has been registered about 12 years back and at this

stage of investigation of the case, in the considered opinion of this

Court, the custodial interrogation of the petitioner is unwarranted.

The investigation of the case in absence of the custodial

interrogation of the petitioner can be concluded. The petitioner

shall be subjected to unnecessary harassment in case of his arrest in

such an old case.

11. For the foregoing reasons and the observations made hereinabove,

it is held that the petitioner is entitled to be admitted to bail in

anticipation of his arrest. It is, thus, directed:-

(a) that, the petitioner in the event of his arrest, shall

be released on bail subject to furnishing of personal

bond to the tune of Rs.50,000/- with two sureties in

the like amount to the satisfaction of SHO

concerned;