Jammu & Kashmir High Court
Mohammad Azam & Ors vs Respondent(S) on 23 October, 2024
Sr. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App. No. 237/2022
c/w
CRM(M) No. 563/2022
CrlM No. 1142/2022
Mohammad Azam & Ors. ..... Petitioner(s)/Appellant(s)
Through: Mr. Lawanya Sharma, Advocate vice
Mr. Zeeshan Javed Rana, Advocate
Vs
..... Respondent(s)
UT of J&K
Through: Mr. Jameel Ahmed, Advocate for No. 2 in
CRM(M) No. 563/2022
Nemo for No. 1 in CRM(M) No. 563/2022
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
23.10.2024
CRM(M) No. 563/2022
1. There is no representation on behalf of respondent No. 1.
2. Heard learned counsel for the petitioners and the respondent No. 2.
3. The instant petition filed under Section 482 of the Code of Criminal
Procedure 1973 (herein after referred to as Code for short) is pending
disposal since July, 2022.
4. Through the medium of the instant petition, the petitioners have sought
the quashment of the FIR No. 166/2022 registered with Police Station
Surankote District Poonch against them. The quashment of the FIR has
been sought mainly, on the grounds, that same is outcome of rivalry and
frivolity as well as the counter action of registration of FIR No. 154/2022
registered with the same Police Station against the family members of
responden No. 2/complainant.
5. It is revealed from the perusal of the petition that petitioner No. 1 is
wedded to the son of respondent No. 2; that the petitioner No. 1 was
continuously subjected to cruelty at the hands of her matrimonial relatives
including the respondent No. 2 as well as her husband; that on
09.06.2022, the brother of the petitioner No. 1 went to the matrimonial
home of her sister, i.e., petitioner No. 1 where pursuant to some oral
arguments between him and the matrimonial relatives of petitioner No. 1,
incident of attack occurred with the brother of petitioner No. 1 in
connection whereof, FIR No. 154/2022 came to be registered with Police
Station, Surankote for commission of offences punishable under Sections
341, 323, 147, 427 IPC 3/25 Arms Act; that the respondent No. 2 and her
family in order to save themselves and to counter the genuine FIR lodged
by the petitioners, filed a false and frivolous complaint with the concerned
Police Station that led to the registration of the FIR No. 166/2022 dated
16.06.2022 alleging therein that the petitioners kidnapped the petitioner
No. 1 from her matrimonial home and while doing so they attacked on the
family members of respondent No. 2 and bet them.
6. Learned counsel for the petitioners reiterated his stand taken in the memo
of the petition and vehemently submitted that the FIR No. 166/2022 dated
16.06.2022 being outcome of frivolity and rivalry be quashed, whereas
the learned counsel for respondent No. 2 submitted that the FIR
No. 166/2022 registered with Police Station, Surankote District, Poonch is
based on facts as the occurrence leading to the registration of the same
was occasioned by the petitioners on 16.06.2022, when they approached
the home of respondent No. 2 in the form of an unlawful assembly with
Dandaas in their hands whereupon they attacked the family members of
respondent No. 2/complainant and kidnapped the petitioner No. 1 from
her matrimonial home.
7. Mr. Jameel Ahmed, learned counsel appearing for respondent No. 2
submitted that on account of an interim order dated 07.07.2022 passed on
this petition, the Investigating Officer of the case/SHO concerned is not in
a position to file the final report/challan before the Competent Court.
Learned counsel submitted that the petition be dismissed as meritless.
8. I have considered the rival submissions of the learned counsel for the
contesting parties. The record of the instant petition has also been gone
through minutely.
9. In the backdrop, this Court is of the considered opinion that no ground
appears to be made out for quashment of the FIR in question, bearing
No. 166/2022 dated 16.06.2022. The Investigation in a criminal case is
supposed to ascertain the truth and to bring the real facts before a criminal
Court. Any alleged irregularity or illegality in the investigation process is
subject to the judicial scrutiny at the trial of the case.
10. In the facts and circumstances of the case, petitioners do not appear to
have made cogent grounds to form an opinion that the registration of the
FIR sought to be quashed, is outcome of misuse or abuse of law. There is
a counter case bearing FIR No. 154/2022 registered with the same Police
Station against some family members of the respondent No. 2 which may
also be likely at investigation stage. The investigation in both the counter
case FIRs is going on for the last more than two years. The investigation
in both the cases is supposed to have become oppressive against the
accused in both the cases.
11. The powers inherent in this Court in terms of provisions of Section 482 of
the Code (now repealed and corresponding to the provisions of Section
528 of BNSS) cannot be itself misused by this Court to cause miscarriage
of justice.
12. Accordingly, the instant petition is dismissed. The SHO Police Station,
Surankote District Poonch/I.O of the case of FIR No. 166/2022 dated
16.06.2022 shall conclude the investigation in the case with utmost
promptitude after getting the statement of petitioner No. 1-Feroz Akhter
W/o Mumtaz Ahmed alleged to have been kidnapped, recorded before the
Judicial Magistrate if not already examined, as such, and proceed further
in the matter by filing the final report in terms of Section 173 of the Code.
1. The petitioners/accused are on interim pre-arrest bail since 07.07.2022.
The respondents have not chosen to file their objections till date despite
elapse of more than two years.
2. Heard the learned counsel for the parties and considered their
submissions.
3. This Court is of the considered opinion that it may be in the ends of
justice in case the interim pre arrest bail already granted in favour of the
petitioners vide order dated 07.07.2022 is made absolute, subject to some
reasonable terms and conditions.
4. 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.
5. 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
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.
6. The following factors and parameters have been laid down for
consideration while dealing with anticipatory bail.
a) The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
b) The antecedents of the applicant including the fact as to whether
the accused has previously undergone imprisonment on
conviction by a court in respect of any cognizable offence;
c) The possibility of the applicant to flee from justice;
d) The possibility of the accused's likelihood to repeat similar or
the other offences.
e) Whether the accusations have been made only with the object
of injuring or humiliating the applicant by arresting him or her;
f) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
g) The courts must evaluate the entire available material against
the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The cases
in which accused is implicated with the help of section 34 and
149 of the Indian Penal Code, the court should consider with
even greater care and caution because over implication in the
cases is a matter of common knowledge and concern;
h) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no
prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
i) The court to consider reasonable apprehension of tampering of
the witness or apprehension of threat to the complainant;
j) Frivolity in prosecution should always be considered and it is
only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the prosecution
in the normal course of events, the accused is entitled to an
order of bail.
7. 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."
8. 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
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.
9. 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.
10. 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 consideration of 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 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
11. 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."
12. 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."
13. 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).
14. 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).
15. 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 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).
16. 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).
17. 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).
18. In view of the aforementioned discussion, the application is allowed and
the petitioners are admitted to pre-arrest bail in absolute in case FIR No.
166/2022 dated 16.06.2022 registered with Police Station, Surankote,
District Poonch subject to their furnishing of surety and personal bonds to
the tune of Rs. 25000/- each to the satisfaction of SHO Police Station
concerned. This bail order shall be subject to following conditions:-
i. 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.
ii. That the petitioners /accused shall not repeat the commission of
crime.
iii. That the petitioners /accused shall remain punctual at the trial of
the case in case of presentation of final report/challan under
Section 193 of BNSS.
iv. 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.
19. In case the requisite bail bonds are furnished to the satisfaction of the
SHO Police Station concerned by the petitioners, they shall in that event
be treated as on absolute anticipatory bail.
20. Disposed of in the aforesaid terms.
(A (Mohd. Yousuf Wani)
Judge
Jammu
23.10.2024
Meenakshi
