Jammu & Kashmir High Court
Mohd Khaliq And Others vs Ut Of J&K And Others on 12 May, 2026
Sr. No. 2
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 80/2026
CrlM No. 776/2026
CM
Mohd Khaliq and others .....Petitioner(s)
Through: Mr. Matloob Hussain Mughal, Advocate
Vs
UT of J&K and others ..... Respondent(s)
Through: Mr. Bhanu Jasrotia, GA for R-1 to 3
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
12.05.2026
1. Mr. Bhanu Jasrotia, learned GA, appears and accepts notice in the matter for
respondents 1 to 3.
2. Notice, returnable by next date of hearing, subject to taking of requisite steps
for service within a period of two weeks’ shall go to the respondent No.4.
Dasti notice also permissible in respect of the said respondent No.4.
3. Through the medium of the instant successive petition, having been filed in
terms of provisions of Section 482 of Bharatiya Nagarik Suraksha Sanhita,
2023 [hereinafter referred to as the ‘BNSS’ for short], the petitioners seek
concession of pre-arrest bail in their favour in case FIR No.128/2026,
registered with the Police Station, Rajouri under Sections
333/109/115(2)/351(2)/352/191(2)/74/3(5) of the Bharatiya Nyaya Sanhita,
2023 [hereinafter referred to as the BNS for short], on the main grounds
that they are innocent and have not committed the alleged offences; that they
have been falsely and frivolously implicated in the case FIR to give a
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[
criminal colour to a civil dispute between the private parties; that out of 7-
petitioners/accused, 5 happen to be the women having been falsely
implicated to wreck vengeance; that they are deeply rooted in the society
and, as such, there is no question of their misusing the concession of bail by
their non-cooperation during investigation or absconding at the trial in case
any final report is presented in the Court in respect of the matter; that they
shall get humiliated and lowered down in the estimation of the public in case
of their arrest on false grounds; that they had earlier approached the learned
Territorial Sessions Court seeking the same relief but that has been denied
under the influence of allegations leveled against them and that they shall
abide by any conditions that may be imposed by this Court.
4. Heard the learned counsel for the applicants in respect of the matter, who
submitted that the petitioners are innocent and have been falsely and
frivolously implicated in the case FIR on account of personal animosity. He
submitted that the most of the petitioners happen to be the ladies, who are
totally innocent. He further submitted that the Hon’ble Apex Court of the
Country and the other High Courts including this Court has been widening
the scope of the personal liberty and allowing the pre-arrest bails in justified
cases.
5. A case appears to be made out for grant of interim pre-arrest bail, having
regard to the facts and circumstances of the case.
6. 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
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[
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.
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
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[
refusal of bail should necessarily depend on facts and circumstances of the
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
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[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
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[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 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.
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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
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agency, to investigate into the charges against the person who
seeks and is granted pre-arrest bail.
10. List on 01.06.2026, for filing of objections.
11. In the meantime and till next date of hearing, the respondents 2 and 3 are
directed that they shall in the event of arrest of the petitioners in connection
with the case FIR 128/2026, registered with their Police Station, Rajouri
release them from custody subject to their furnishing of surety and personal
bonds to the tune of Rs.50,000/- each to their satisfaction for assuring the
fulfillment of the following conditions:-
i) That the petitioners/accused shall fully cooperate with the
Investigating Officer of the case as and how directed;
ii) That the petitioners/accused shall not, directly or indirectly, 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;
iii) That the petitioners/accused shall not repeat the commission of any
kind of crime;
(Mohd. Yousuf Wani)
Judge
Jammu
12.05.2026
Mahavir
