Jammu & Kashmir High Court – Srinagar Bench
Ghulam Mohammad Khan vs Station Beerwah And Others on 7 August, 2026
Serial No. 56
Suppl. Cause List.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App 147/2026 CrlM (1372/2026)
Ghulam Mohammad Khan
...Petitioner(s)/Appellant(s).
Through: Mr. Syed Owais Geelani, Advocate
Vs.
Union Territory Through Police
Station Beerwah and Others ...Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE.
ORDER
07.08.2026
1. Issue notice to the respondents in the main as well as in the interim
application returnable by the next date of hearing subject to taking of steps for
service for filing of objections.
2. Through the medium of the instant application filed under the provisions
of Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023] hereinafter
referred to as the ‘BNSS’ for short], the applicant has sought the grant of pre-
arrest bail in his favour in the case FIR No. 126/2025 registered against him
with the respondent No. 1, on the grounds, inter alia, that he is innocent and
has not committed the alleged offences. That he is deeply rooted in the society
and, as such, he shall be lowered down in the estimation of the general public
in case he is arrested by the respondent No. 1, that too, on the basis of false
and frivolous allegations. That the FIR in question has been registered as a
retaliatory cross-FIR at the instance of private respondent No. 2 in the
backdrop of a long-standing civil land dispute regarding the construction of a
boundary wall, which is already pending adjudication before the competent
revenue authorities, including the Tehsildar, Beerwah. That prior to the
registration of the impugned FIR, he and his family had repeatedly complained
to the police regarding the continuous trespass and harassment by the private
respondents, and on 09.07.2026, after the private respondents allegedly
trespassed into the petitioner’s residence and assaulted and molested his
daughter, FIR No. 124/2026 came to be registered against them. That it is only
thereafter that the impugned FIR No. 126/2026 was lodged against him, which
thereby indicates the same to be a vindictive and malicious counterblast
intended to pressurize him in the pending civil dispute. That the allegations
levelled in the impugned FIR are false, exaggerated and arise out of a purely
civil dispute which has been given an unwarranted criminal colour. That he is
a law-abiding citizen with deep roots in society, has no criminal antecedents,
and is neither likely to abscond nor to tamper with the prosecution evidence.
That his custodial interrogation is not necessary, and he undertakes to
cooperate fully with the investigation and abide by any conditions that may be
imposed by this Court.
3. Heard learned counsel for the petitioner in respect of his prayer for grant
of interim pre-arrest bail who, inter alia, submitted that the petitioner is
innocent and has been falsely and frivolously roped in the case FIR. That it is
a cardinal principle of criminal jurisprudence that an accused person is
presumed to be innocent till he/she is proved to be guilty at the trial. That even
if the allegations leveled in the FIR can be supposed to be true for the
arguments sake yet same apparently looks to be a civil dispute and the arrest
of the petitioner is not at all needed in connection with the investigation. That
the registration of the FIR apparently looks to be a tool for pressurizing the
petitioner to negotiate with the complainant at the latter’s sweet will.
4. The learned counsel invited the attention of this Court towards the
judgment of the Hon’ble Apex Court cited as “Siddharam Satlingappa
Mhetre vs. State of Maharashtra AIR 2011 SC 312″, and submitted on the
basis of the reliance on the said judgments that the Hon’ble Apex Court has
widened the scope of personal liberty and also held that pre-arrest bail cannot
only be claimed in extraordinary 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 to 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-uddin 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 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
5. A case appears to be made out in the opinion of the
Court for grant of interim pre-arrest bail.
6. The Hon’ble Apex Court in its Judgments cited as “Siddharam
Satlingappa Mhetre vs. State of Maharashtra 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 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 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 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 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 the 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 considering 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.”
10. List on 11th September, 2026.
11. In the meantime, respondent No.1 i.e. Station House Officer, Police
Station Beerwah, District Budgam is directed that he shall in the event of
arrest of the petitioner in connection with FIR No. 126/2026 dated 09.07.2026
registered with his Police Station, release him from the custody, subject to his
furnishing of bail and personal bonds to his satisfaction to the tune of Rupees
One Lakh each. However, this order shall be subject to the following
conditions: –
(i) That the petitioner shall appear before the Investigating Officer of
the case in connection with the investigation of the case FIR as and
when directed.
(ii) That the petitioner shall not leave the limits of UT of Jammu and
Kashmir without the prior permission of this Court.
(iii) That the petitioner/accused shall not directly or indirectly make
any inducement, threat or promise to any person/s acquainted with the
facts of the case so as to dissuade him/them from disclosing such facts
to the court or to any police officer.
12.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR:
07.08.2026
“Shahid Manzoor”
