While the interim bail before the arrest is absolute in nature Justice Mohammad Yousuf Wani emphasized that denial of bail is not a matter of routine and must be exercised only judiciously, with sensitivity to individual as well as societal interests.

Quoting GN Nara Simhula Vs. Attorney General Andhra Pradesh AIR 1978 Justice Wani reiterated,

“Personal liberty which is deprived when bail is refused is too precious a value of our constitutional system, recognized by Article 21, that the decisive power to deny it is a great trust which can be exercised not casually but wisely with lively concern for the cost to the individual and society . After all the personal freedom of an accused or convicted is fundamental, to suffer legal eclipse only in terms of procedure established by law”

The petitions challenged an FIR for offenses under Sections 354-C, 504 and 509 of the Indian Penal Code (IPC) and provisions of the Protection of Children from Sexual Offenses Act (POCSO) 2012 on the grounds that it was filed maliciously. The petitioner alleged that it was a retaliatory action linked to an ongoing property dispute with a colleague organized by the complainant and her husband, in collaboration with an NGO, to unfairly harass him.

The petitioner sought quashing of the FIR under Section 482 of the Criminal Procedure Code (CrPC), claiming that the case amounted to an abuse of process of law. However, the court refused to quash the FIR, stressing that issues of irregularities or unfairness in the investigation can be raised during the trial.

Relying on the related ground of making his remand bail absolute, the court observed that it was justified to continue the petitioner’s remand and emphasized the importance of maintaining personal liberty unless circumstances warrant otherwise.

Discuss in detail the principles established in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) and Sushila Aggarwal v. State (NCT of Delhi) (2020), affirming that anticipatory bail serves to protect individual liberty and that its denial should not be arbitrary, the Court noted that arrest should be the last resort and that anticipatory bail cannot be restricted to exceptional cases only.

Quoting Jagram v. State of Haryana, 1996 (1) RCR 575; Jeet Ram v State of Himachal Pradesh, 2003 the court emphasized that the seriousness of the crime and the severity of the punishment alone are not sufficient reasons to deny bail. It observed that bail should not be refused unless there are specific allegations indicating that the accused, if released, is likely to abscond to avoid trial or interfere with the prosecution’s case by tampering with witnesses.

Further explanation of the subject referred to by the court Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 to emphasize that the power to grant bail should not be used as a means of imposing pre-trial punishment. It clarified that the primary considerations are whether the accused will appear for trial and whether there is a risk of abuse of bail by tampering with evidence. If no prima facie case is established, other factors become irrelevant, it underlined.

In line with these observations, the anticipatory bail granted to the petitioner was made absolute subject to certain conditions.

Case Title: Mehmood Ur Rayaz Bhat Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 290

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