Bhupinder Kumar And Others vs Union Territory Of J&K
2025 Latest Caselaw 2482 J&K

Jammu & Kashmir High Court

Bhupinder Kumar And Others vs Union Territory Of J&K on 31 October, 2025

                                                                   Sr. No. 187

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU
                                               Bail App No.291/2025

Bhupinder Kumar and others                                      .....Petitioner(s)

                      Through: Mr. Nirmal K. Kotwal, Sr. Advocate with
                               Mr. Pawan Dev Singh, Advocate

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

                      Through:

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

                                   ORDER

31.10.2025

1. Through the medium of the instant petition filed under the provisions of

Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS for short),

the petitioners have sought the pre-arrest bail in their favour in respect of the

alleged offences under Sections 85, 45 of BNS having been leveled against

them, through the medium of a complaint filed before the Station House Officer,

Women Cell, Kathua by one Ishu Sharma D/o Late Dharam Paul R/o Village

Amala, Tehsil Marheen, District Kathua, who was earlier married to the

petitioner No.1 and stands already divorced as per the decree of dissolution of

marriage dated 22.03.2025 of the Court of learned Principal District Judge,

Samba, on the grounds inter alia that they are innocent and have not committed

the alleged offences; that the complaint before the respondent has been filed by

the aforesaid Ishu Sharma on the basis of animosity to wreak vengeance; that the

complaint has been filed before the respondent after a period of seven months

from the dissolution of the marriage between the petitioner No.1 and the alleged

complainant; that they are deeply rooted in the society and, as such, there is no

question their misusing the concession of bail if granted in their favour; that they

are likely to suffer in terms of reputation in the society in the event of their

arrest on the basis of the aforesaid false and frivolous complaint and that they

shall abide by any conditions imposed by this Court.

2. Heard the learned counsel for the petitioners, who submitted that

petitioners are innocent and have not committed the alleged offences. That they

are going to be involved falsely and frivolously in the offences under Sections

85 and 45 of the BNS on the basis of a false complaint merely on account of a

past matrimonial dispute between the complainant and the petitioners' family.

He further contended that the Hon'ble Apex Court has time and again laid down

that the arrests on the basis of matrimonial disputes should not be made in

routine without prior verification. The learned counsel submitted that the

unnecessary arrest of the petitioners on the basis of false and frivolous complaint

having been filed to wreak vengeance is likely to humiliate them in the society

besides violating their liberty. The learned counsel further submitted that they

shall abide by any conditions imposed by this Court, while enlarging them on

pre-arrest bail.

3. 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.

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

regard to the facts and circumstances of the case.

5. 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.

6. 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.

7. 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."

8. 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.

9. List on 26.11.2025.

10. In the meantime, subject to any vacation/modification upon the

consideration of objections/arguments and till next date of hearing before the

Bench, respondent-SHO Police Station, Women Cell, Kathua is directed that

he/she in the event of the arrest of the applicants/petitioners in connection with

some case/complaint/filed/registered with his/her Police Station, shall release

them from custody, subject to their furnishing of surety and personal bonds to

his/her satisfaction in the amount of ₹50,000 lacs each. This order, however,

shall be subject to the following conditions:-

i) That the petitioners shall not make any inducement, threat or promise to the person/s acquainted with the facts of the case so as to dissuade him/them from disclosing such facts to the Police or the Court;

ii) That the petitioners are not involved any offence carrying a punishment exceeding seven years;

iii) That the petitioners shall cooperate with Investigating Officer as directed.

(Mohd. Yousuf Wani) Judge Jammu 31.10.2025 Shammi