Varinder Singh Sumbria vs Union Territory Of J&K
2025 Latest Caselaw 2470 J&K

Jammu & Kashmir High Court

Varinder Singh Sumbria vs Union Territory Of J&K on 29 October, 2025

                                                                   Sr. No. 148

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU
                                               Bail App No.288/2025
                                               c/w
                                               CRM(M) No.1091/2025
Varinder Singh Sumbria                                         .....Petitioner(s)

                       Through: Mr. Sunil Sethi, Sr. Advocate with
                                Mr. Navyug Sethi, Advocate

                 Vs
Union Territory of J&K                                       ..... Respondent(s)

                       Through: Mr. Sumeet Bhatia, GA

Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE

                                   ORDER

29.10.2025

1. Mr. Sumeet Bhatia, learned Government Advocate appears and accepts

notice on behalf of the respondent. He seeks and is granted time to file

objections in the matter.

2. Heard the learned counsel for the applicant/petitioner in respect of his

prayer for grant of interim pre-arrest bail and considered his submissions. The

learned counsel for the petitioner during his arguments inter alia contended that

the applicant/petitioner has been falsely and frivolously implicated in the case

FIR when it is abundantly clear from the contents of the FIR itself that the

complainant/alleged victim was having sexual relations with the

applicant/petitioner out of her own free will and consent. He further contended

that the complainant filed an application before the learned Magistrate on

22.08.2025 in respect of the alleged occurrences of 21.06.2021. The learned

counsel further contended that the complainant has inter alia mentioned in the

FIR that the petitioner/accused has been sexually exploiting her since last five

years on the pretext of the false marriage. It is submitted by the learned counsel

for the petitioner that the respondent-SHO is hell bent to arrest the petitioner in

the case on the basis of false allegations and in case he is not protected by grant

of interim pre-arrest bail, his liberty shall be curtailed and he shall also badly

suffer in terms of the reputation in the society. Learned counsel submitted that

the petitioner/accused shall abide by any conditions imposed by this Court.

Learned counsel invited the attention of this Court towards a judgment of

the Hon'ble Apex Court cited as Siddharam Satlingappa Mhetre Vs State of

Maharastra decided on 02/12/2010, AIR 2011 SC 312 and submitted on the

basis of reliance on the said authoritative judgment that the Hon'ble Apex Court

has widened the scope of personal liberty and has held that pre-arrest bail cannot

only be claimed in extra-ordinary circumstances, but in all the cases where the

Court is satisfied in the facts and circumstances of the case that there is no need

of the accused in custody during investigation. He submitted that it has also been

held in the case concerned that pre-arrest bail need not be granted for a limited

period and the Hon'ble Apex Court held its earlier judgments on the subject i.e

Chain Lal Vs. State of Madhya Pradesh (1976) 4 SCC 572; Salau-ud-din Abdul

Samad Sheikh 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.

3. Per contra, Mr. Sumeet Bhatia, learned Government Advocate submitted

that the applicant/petitioner is involved in heinous offence punishable under

Section 376 IPC, as such, does not deserve the concession of pre-arrest bail. The

learned counsel further contended that the petitioner is likely to misuse the

concession, if any, granted in his favour by criminally intimidating the

complainant/victim and other prosecution witnesses as also by his non-

cooperation during investigation. The learned counsel submitted that he may be

permitted to file his detailed objections in the matter, which may be considered.

4. Perused the interim application which is supported with an affidavit. Also

perused the main bail petition and the copies of the documents enclosed with the

same as Annexures thereto, especially, the copy of the FIR bearing

No.0264/2025 of Police Station, Katra, Reasi.

5. A case appears to be made out for grant of interim pre-arrest bail, having

regard to the facts and circumstances of the case.

6. The Hon'ble Apex Court in its Judgments cited as Siddharam Satlingappa

Mhetre Vs State of Maharashtra 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 Judgment cited as Siddharam Satlingappa Mhetre Vs State of

Maharashtra, held the earlier law on the subject laid down in Chain Lal Vs.

State of Madhya Pradesh (1976) 4 SCC 572; Salau-uddin 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 2005 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.

7. It was held by the Hon'ble Apex Court in the said Judgments that purpose

of anticipatory bail is to uphold cardinal principle of criminal jurisprudence that

an accused person is presumed to be innocent till he/she is proved to be guilty

and that Section 438 of Code (corresponding to Section 482 of BNSS) 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 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.

8. 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.

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."

9. In another judgment of Sushila Aggarwal and others vs. State (NCT of

Delhi) and another decided on 29th, 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 considereing

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

note 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.