Denial Of Bail Must Be A Judicious Exception, Personal Liberty Under Article 21 'Too Precious' To Be Curtailed Casually: J&K High Court

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

Citing G. N. Nara Simhula vs. Public Prosecutor Andhra Pradesh AIR 1978 Justice Wani reiterated,

“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”

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 Offences (POCSO) Act, 2012 on the grounds that it was filed out of malice. The petitioner claimed it was a retaliatory action connected to an ongoing property dispute with a colleague orchestrated by the complainant and her husband, in collaboration with a non-governmental organization, to harass him unjustly.

The petitioner sought quashing of the FIR under Section 482 of the Code of Criminal Procedure (CrPC), contending that the case represented an abuse of legal process. However, the Court refused to quash the FIR, emphasizing that issues regarding irregularities or unfairness in investigation can be addressed during the trial.

Moving on the connected plea of making his interim pre-arrest bail absolute, the court observed that the continuation of the petitioner's interim pre-arrest bail was justified and stressed the importance of upholding personal liberty unless circumstances warrant otherwise.

Extensively discussing the principles laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) and Sushila Aggarwal v. State (NCT of Delhi) (2020), which affirm that anticipatory bail serves to safeguard individual liberty and that its denial should not be arbitrary the Court noted that arrest should be the last resort and anticipatory bail cannot be restricted to exceptional cases alone.

Citing Jagram v. State of Haryana, 1996 (1) RCR 575; Jeet Ram v. State of Himachal Pradesh, 2003 the Court emphasized that the mere gravity of the offense and the severity of the punishment are not sufficient grounds 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 evade trial or interfere with the prosecution's case by tampering with witnesses.

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

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

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

Citation: 2024 LiveLaw (JKL) 290

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