Refusal of bail should be a sensible exception, personal liberty under Article 21 ‘too precious’ to be curtailed casually: J&K High Court

While pre-arrest anticipatory bail is absolute in nature Judge Mohammed Yousuf Wani stressed that denying bail is not a matter of routine and should only be applied judiciously, with sensitivity to both individual and societal interests.

Quote GN Nara Simhula vs Public Prosecutor Andhra Pradesh AIR 1978 Justice Wani reiterated:

“Personal liberty deprived when denied bail is too precious a value of our constitutional system, recognized in Article 21, that the crucial power to deprive it is a great trust which cannot be exercised casually but judiciously with lively care for the costs to the individual and the community. After all, the personal freedom of an accused or convicted person is of fundamental importance, and the suffering of a lawful embezzlement is only possible in terms of the 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 (POCSO) Act, 2012, under the fact that it was filed outside the 2012 Act. malice. The petitioner alleged that this was a retaliatory action related to an ongoing property dispute with a colleague, which was organized by the complainant and her husband, in collaboration with a non-governmental organization, to unfairly harass him.

The petitioner sought quashing of the FIR under Section 482 of the Code of Criminal Procedure (CrPC), contending that the case involved abuse of process. However, the Court refused to quash the FIR and emphasized that issues regarding irregularities or dishonesty in the investigation can be addressed at trial.

Elaborating on the related plea to make his pre-arrest anticipatory bail absolute, the court observed that the continuation of pre-arrest anticipatory bail of the petitioner was justified and emphasized the importance of maintaining personal liberty, unless circumstances justify otherwise.

Extensive discussion of 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 refusal cannot be arbitrary, the Court noted that arrest must be the last resort and that anticipatory bail cannot be limited to exceptional cases.

Quote Jagram v. State of Haryana, 1996 (1) RCR 575; Jeet Ram v. State of Himachal Pradesh, 2003 the Court emphasized that the mere seriousness of the crime and the severity of the punishment are not sufficient grounds for refusing bail. It noted that bail should not be denied unless there are specific allegations indicating that the suspect, if released, is likely to abscond to avoid trial or interfere in the prosecution’s case by tampering with witnesses .

The court further referred to the subject to which the court referred Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 to underline that the power to grant bail should not be used as a means of imposing pre-trial punishment. It clarified that the key considerations are whether the suspect will appear in court and whether there is a risk of misuse of bail through tampering with evidence. If no preliminary evidence is provided, other factors become irrelevant, it was pointed out.

In accordance with these observations, the interim bail granted to the petitioner was absolutely subject to certain conditions.

Case Title: Mehmood Ur Rayaz Bhat vs UT of J&K

Visa: 2024 LiveLaw (JKL) 290

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