Jammu & Kashmir High Court – Srinagar Bench
Mujeeb Ahmad Koka vs Union Territory Of J And K Through on 3 April, 2026
Serial No. 1
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App No. 1/2026
Pronounced on 03/04/2026
Uploaded on /04/2026
Mujeeb Ahmad Koka
S/O. Gh Mohiudin Koka
R/O. Shankerpora, Dooru, Anantnag
...Petitioner(s)/Appellant(s).
Through: Mr. Mohammad Ashraf Malik, Advocate with
Mr. Salfi Izhar, Advocate
Vs.
Union Territory of J and K Through
SHO Police Station Anantnag
...Respondent(s).
Through: Mr. Ilyas Nazir Laway, Ld. Govt. Advocate
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
1. Through the medium of the instant successive petition having been
filed in terms of the provisions of Section 483 of the Bharatiya Nagarik
Surkasha Sanhita (hereinafter referred to as the ‘BNSS’ for short) read with
Article 21 of the constitution of India, the petitioner has sought the grant of
short-term bail on exclusive humanitarian grounds in his favour in Case
FIR No 126/2025 of Police Station, Anantnag in the offences under
Sections 61, 111, 318(4), 351(2) of the Bharatiya Nyaya Sanhita, 2023
(hereinafter referred to as the ‘BNS’ for short), on the grounds, inter alia,
that he has been implicated as a co-accused (A3) in the case FIR in
question in which the investigation is already complete with the
presentation of the final report/charge-sheet in terms of the provisions of
Bail App No. 1/2026 Page No 1
Section 193 BNSS before the Court of ld. Principal Sessions Judge,
Anantnag (hereinafter referred to as the ‘Trial Court’ for short). That the
petitioner had earlier filed a formal bail petition before the ld. Trial Court
which came to be dismissed by the ld. Trial Court along with the bail
applications of the co-accused through a common order dated 24.09.2025
on the main ground that he along with the co-accused is involved in serious
and heinous offences of commission of cheating, organized crime and
criminal intimidation under conspiracy. That subsequently he separately
filed an application for grant of short-term bail in his favour on the ground
that his wife- Beauty Jan is in her advanced stage of pregnancy having no
other close relative at their home, therefore requiring his presence for at
least some reasonable time pre and post-delivery to take her care as well as
the care of the expected new born. That the said bail application was also
dismissed by the ld. Trial Court on the same ground that petitioner/accused
is involved in the heinous and anti-social offences. That the ld. Trial Court
has erred in considering the petitioner’s plea for short term bail by
mistreating the same as the review of the earlier rejection order without
appreciating that child birth is a one-time irreversible event constituting an
exceptional humanitarian circumstance warranting temporary enlargement
on bail. That petitioner is a permanent resident of District Anantnag having
deep roots in the society with no criminal antecedents and, as such, there is
no question of his misusing the concession of short-term bail, if granted, in
his favor. That he undertakes to abide by any conditions that may be
imposed by this Court.
Bail App No. 1/2026 Page No 2
2. The respondent-UT vehemently resisted the instant bail petition
through its counsel Mr. Ilyas Nazir Laway, ld. GA on the grounds that the
petitioner does not deserve the concession of even short-term bail on
humanitarian grounds on account of his being involved in heinous offences
of commission of organized crime and cheating under conspiracy. It has
been averred in the memo of objections that on 13.06.2025, Police Station,
Anantnag received a written complaint through District Police, Anantnag,
forwarded by Crime Branch, Jammu and submitted by the complainant Shr.
Tilak Raj Singh S/O. Hari Chand R/O. Kishtwar to the effect that the
complainant is the husband of proprietor namely Sapna Devi who had a
license of NTPF Forest Division, Kashmir, for sale and purchase of herbal
material. That the petitioner along with the co-accused namely Tasaduq
Hussain Dar and Mohammad Iqbal Wani made an agreement with him in
the month of September, 2024 for selling Garlic/Lahson and took Rs.
1,78,000/- lacs as advance from him while agreeing to sell the commodity
to him within a period of two days. That the accused persons including the
petitioner did not deliver the material to the complainant and instead
demanded extra payment from him under one or the other pretext so much
so that complainant felt constrained to pay Rs. 56 lacs to the accused
including the petitioner. That the complainant time and again requested the
accused to deliver the agreed material but they did not deliver the same.
That they lastly refused to deliver the agreed material as also to refund the
amount to the complainant and instead threatened the complainant of dire
Bail App No. 1/2026 Page No 3
consequences. That on receipt of the said information case FIR in question
came to be registered and investigation started.
That during the course of investigating the statement of the
complainant was recorded under Sections 180 and 183 of BNSS. That
during investigation it came to light that intention of cheating the
complainant from the very beginning on the part of the accused including
the petitioner was clear on account of the fact that they did not possess any
license or permission from the Forest Department for procurement of wild
garlic.
That during the course of investigation, it has emerged that all the
accused including petitioner acting in concert deliberately floated multiple
firms under different names as a pre-planned modus operandi to cheat and
defraud innocent persons by inducing them on false and fabricated
assurances to invest money on the pretext of sale and purchase of land,
precious stones, forest produce and other commodities. That during the
investigation the petitioner namely Mujeeb Ahmad Koka S/O. Gh
Mohiudin Koka R/O. Shankerpora, Dooru, Anantnag was arrested on
08.08.2025.
That the ld. Trial Court rejected the applications for bail of the
petitioner twice on the ground of his involvement in serious offences of
organized crime and cheating.
That the conduct of the petitioner, marked by intimidation in
defrauding the victims, clearly indicates a strong likelihood that he may
Bail App No. 1/2026 Page No 4
influence, threaten, or otherwise intimidate the prosecution witness during
the course of the trial.
That there is every apprehension that the petitioner may interfere
with, influence or adversely affect the further investigation of the instant
case.
That the material collected by the prosecution and produced before
the ld. Trial Court sufficiently connects the petitioner with the commission
of the offences and hence does not deserve the concession of bail.
That the entire evidence on record so far collected during the course
of investigation is self-explanatory which suggests in explicit terms
involvement of the petitioner in the offences.
That the offences in the commission of which the petitioner is
involved are heinous and grave besides non-bailable in character, and as
such, the petitioner is not entitled to the concession of bail. That the
petitioner has filed this application for the purpose of evading the process
of law and if he will be enlarged on bail at this juncture there is every
likelihood of the petitioner’s going absconded and prosecution has already
collected the evidence and made a prima facie case against the applicant.
That the petitioner has agitated false and fabricated grounds in order
to defeat the process of law for undue advantage, as such, the petition is not
maintainable in the eyes of law and needs to be dismissed.
3. I have heard the learned counsel for the parties in respect of the
matter.
Bail App No. 1/2026 Page No 5
4. The ld. Counsel for the petitioner during his arguments, inter alia,
submitted that the petitioner/accused has been implicated in the case FIR
for the alleged commission of the offences punishable under Sections 61,
111, 318(4), 351(2) of the BNS which do not carry an embargo in respect
of the bail. He contended that the application that came to be filed by the
petitioner first in point of time for his enlargement on merits of the case
came to be dismissed by the ld. Trial Court through the common order
dated 24.09.2025 passed on the said application and the applications of
the co-accused. That the petitioner was subsequently constrained to file a
separate application for grant of short-term bail in his favour on
humanitarian grounds as his wife was then in advanced stage of
pregnancy having no other close relative to attend him pre and post-
delivery. That unfortunately, the said application was also denied by the
ld. Trial Court on the ground of the alleged involvement of the petitioner
in heinous offences. The learned counsel submitted that it is well settled
that the merits of the case do not apply where a case appears to be made
for grant of temporary short-term bail on humanitarian grounds. He
submitted that ld. Trial Court was not powerless to consider such
application by being pleased to grant a short-term temporary bail to the
accused with a view to allow him to attend his wife who had no other
relative to attend her.
5. The learned counsel further contended that the wife of the
petitioner, after her delivery fell ill and is in need of immediate medical
care.
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6. It was contended by the learned counsel that temporary/short-term
bail on humanitarian grounds is a recognized facet of the criminal court’s
discretionary jurisdiction and on account of unavoidable family
circumstances such as imminent childbirth of spouse, absence of family
support, serious illness, or funerals have been held to justify limited
duration bail even when regular bail is declined, in order to balance the
interests of justice and humanity
7. It was further contended by the learned counsel that various High
Courts of the country including the Rajasthan High Court and Bombay
High Court, have granted temporary bail to under-trial prisoners or
convicts to enable them to attend to pregnant wives or to ensure that
childbirth does not occur in custodial conditions, emphasizing that
criminal justice must remain humane and reformative and that pregnancy
and childbirth demand a sensitive, dignified approach.
8. It was argued by the learned counsel that Article 21 of the
Constitution of India has been consistently interpreted by the Hon’ble
Supreme Court to include not merely animal existence, but a life of
dignity, including the right to family life, protection of motherhood,
presence of a husband during the childbirth of his wife and his ability to
support her medically and emotionally as facets of family life and dignity
protected under Article 21.
9. It was further contended that childbirth is a one-time, irreversible
event and denial of the Petitioner’s presence even post delivery will cause
irreversible emotional psychological harm to both the Petitioner and his
Bail App No. 1/2026 Page No 7
wife, which cannot later be remedied even if the Petitioner is ultimately
acquitted and the balance of convenience clearly tilts in favour of granting
short-term bail with safeguards.
10. It was further submitted by the learned counsel that the
apprehension of the prosecution regarding misuse of the concession of
bail can be taken care of by imposing strict conditions like:
i. Surrender of passport, if any, and undertaking not to apply for
any travel document.
ii. Requirement to share his mobile numbers and to remain
reachable at all times.
iii. Execution of personal bond with solvent sureties to the
satisfaction of the trial court.
11. That the petitioner has clean antecedents and is a permanent
resident having deep roots in the locality. That he has never misused
liberty and if a person is well settled in the community and needs bail for
genuine personal reasons, the Court ought not to reject short-term bail
merely on assumptions.
12. That the ld. Trial Court has failed to appreciate the distinction
between the
i. A prayer for regular bail on merits of the case, and,
ii. A prayer for temporary bail for a narrowly defined period to meet
an emergent humanitarian situation.
iii. That by conflating both, the court exercised jurisdiction with
material irregularity, warranting interference under the special
powers of this Hon’ble Court regarding bail.
Bail App No. 1/2026 Page No 8
13. He further contended that refusal of temporary bail by the Id. Trial
court in the given facts, has resulted in unjustified restriction on personal
liberty of the petitioner.
14. He further contended that no prejudice will be caused to the
prosecution by granting the temporary relief, as the trial is at the pre-
charge stage, evidence is primarily documentary and in custody of the
State, and the petitioner is willing to accept any additional condition that
this Court may deem fit to impose.
15. The learned counsel in support of his contentions placed reliance
on the judgments cited as:
i. Preet @ Maru & Ors vs. UT Chandigrah in CRM No. 24929 of
2023 in CRA-D No. 360 of 2020.
ii. Ravish Sood Alias Aman vs. The State of Madhya Pradesh
MCRC No. 17988 of 2022 dated: 18-04-2022.
iii. Ajay Kumar vs. State of Punjab 2026 SCC Online P&H 417 in
CRM-M 70149 of 2025 decided on January 8, 2026.
iv. Sajad Ahmad Bhat vs. UT of J&K in Bail App No. 47/2022
decided on 03.06.2022.
v. Mohammad Shafi Gojar vs. UT of J&K & Another in Bail App
No. 20/2024 dated 06.05.2025
16. The learned counsel for the respondent Mr. Ilyas Nazir Laway, ld.
GA however strongly resisted the grant of even short-term temporary bail
in favor of the petitioner who is involved in serious offences of cheating
and organized crime under conspiracy. He submitted that Court has to
struck a balance between an individual right and the rights of the society
in general.
Bail App No. 1/2026 Page No 9
17. He contended that having regard to the involvement of the
petitioner in serious offences, there is every apprehension of his misusing
the concession of bail by tampering with the prosecution evidence and
absconding at the trial. The learned counsel in support of his arguments
placed reliance on the authoritative judgment cited as, “State of UP vs.
Amarmani Tripathi, (2025) 8 SCC 21”.
18. Keeping in view the perusal of the application, the objections filed
in rebuttal and the consideration of the arguments advanced on both the
sides, this Court is of the considered opinion that it may meet the ends of
justice in case the petitioner is admitted to a short-term temporary bail on
humanitarian grounds so as to enable him to take care of his wife who has
reportedly now delivered a baby and is not keeping good health post-
delivery.
19. This Court can derive its authority from the provisions of the
Section 483 of the BNSS read with the provisions of Article 21 of the
Constitution, to address an eventuality, like the present one and pass the
appropriate orders regarding temporary bail subject to some stringent
conditions, under exceptional and compelling circumstances. After all, a
health issue even of a close relative of detenue is of paramount
consideration. All under-trial and convicts have their fundamental right to
claim proper medical care and treatment not only of themselves but also
of their close relatives. However, the conditions viz. gravity of the
offences charged against an accused, likelihood of his absconding at the
trial and influencing the prosecution witnesses, impact of the crime
Bail App No. 1/2026 Page No 10
charged against the accused on the society and State shall weigh the
consideration of a court while overlooking the statutory bars. When bail is
to be considered on humanitarian grounds, the merits of the case do not
apply. The basic power to grant bail is derived from the procedural law
i.e. BNSS/ CrPC and the limitations on the power of a court imposed
either by the procedural law or any other special statue, can under some
compelling circumstances be read with the relevant provisions of the
Constitution and some extra-ordinary provisions itself contained in the
procedural law.
Otherwise while considering a bail under Section 483 BNSS in a
routine manner, the statutory restrictions/limitations as laid down under
Section 437 of the Code (corresponding to Section 480 BNSS) have also
to be considered.
20. In its opinion this court is fortified with a judgment of the Hon’ble
Karnataka High Court cited as “Syed Abdul Ala vs Narcotic Control
Bureau”, South,2003 Cri.L.J 999 (Kar) decided on 17 December, 2002
wherein it has been laid down that High Court under Section 439 of the
Code of Criminal Procedure 1973(corresponding to Section 483 of BNSS)
is not powerless to consider bail on humanitarian grounds not-with-
standing the restrictions imposed by section 37 of the NDPS Act. It has
been held in the case concerned that provisions of Section 37 of the NDPS
Act apply where bail is to be considered on merits. It was agitated before
the Court in the reasoned case that power to grant bail is basically derived
from Code of Criminal Procedure and not from the NDPS Act and the
Bail App No. 1/2026 Page No 11
later only qualifies the power of the court vested under the code. It was
held that provisions of Section 37 of NDPS Act do not clamp or cap
powers of the High Court to grant bail under section 439 of the Code in its
entirety. It is profitable to reproduce paras 9 and 10 of the judgment as
under: –
“9. The provisions of Section 37 of the NDPS Act make a drastic departure
from the conventional cannons of burden of proof of prima facie case against
the accused on the prosecution even at the stage of bail. In respect of the
offences under the NDPS Act, the onus is on the accused to prove the
innocence/non-complicity in order to secure bail. The restrictions in Section 37
relates to prima-facie material regarding the guilt of the accused. The powers
of High Court to grant bail under Section 439 are quite wide and discretionary.
Notwithstanding a prima facie case of guilt, under exceptional circumstances,
the High Court in its discretion can grant bail. The embargo placed under
Section 37 of the NDPS Act operates only when the Court is considering the
bail application on merits. Thus, the provisions of Section 37 do not clamp or
cap the powers of High Court to grant bail under Section 439 in its entirety. In
other words, Section 37 operates only as partial eclipse on the powers of the
High Court. While deciding the application on merits with reference to prima
facie material of guilt then only the provisions of Section 37 operate and they
have to be read with the provisions of Section 439 of the Cr. P.C. When the
bail is to be granted on other extenuating circumstances or humanitarian
ground like the medical ground, the powers of the High Court under Section
439 are not curtailed. The provisions of Section 37 do not operate as a blanket
ban on the powers of the High Court under Section 439 of the Cr. P.C.
10. On careful reading of the decisions of the Supreme Court in Kishan Lal’s
case, I find that there is no ratio laid down to the effect declaring that Section
37 of the NDPS Act, operates as a total blanket ban on the powers of High
Court under Section 439 of the Cr. P.C. In the present case, the accused is
seeking bail on medical grounds and the Court is considering the case of the
petitioner dehors, prima facie material of guilt placed by the prosecution. On
humanitarian considerations, the powers of High Court under Section 439 of
the Cr. P.C., to grant bail is not eroded or affected by the provisions of Section
37 of the NDPS Act.”
Bail App No. 1/2026 Page No 12
21. In “Jasvinder Singh Vs State of J&K” B.A No: 156/2019 decided
on 12.04.2021 bail on humanitarian grounds (medical grounds) was
granted by this Court to an accused who was suffering from diabetes,
which had substantially affected his eye sight as per the medical records
brought to the notice of the Court. It was authoritatively held in the case
that the Sec 37 of the NDPS Act only prescribes the limitations on the
release of a person on bail. That the powers to grant bail stand vested with
the High Court under Section 439 of the Code of Criminal Procedure.
That Section 37 of the NDPS Act, comes into play only when bail of a
person/accused of an offence involving commercial quantity of a
contraband is being considered on merits and the limitations contained
therein would not apply when bail is to be granted on humanitarian
grounds like medical ground. In such cases the powers of the High Court
U/s 439 of the Cr.P.C are not curtailed. Thus the provisions contained
under Section 37 of the NDPS Act do not act as a blanket ban on the
powers of the High Court U/s 439 of the Cr.P.C.
22. It is a settled legal position that basic human rights cannot be
denied to a person regardless of the allegations of the involvement against
him. Refusing to grant temporary bail on exclusive health grounds of a
spouse of a detenue may sometimes endanger the life of the patient.
23. For the foregoing discussion, the application is allowed for one-
time temporary bail of 21 Days (Twenty-One Days) in favour of the
petitioner namely Mujeeb Ahmad Koka S/O. Gh Mohiudin Koka R/O.
Shankerpora, Dooru, Anantnag with effect from the date of his release
Bail App No. 1/2026 Page No 13
pursuant to this order in case FIR No. FIR No 126/2025 of Police Station,
Anantnag in the offences under Sections 61, 111, 318(4), 351(2) so as to
enable him to take immediate steps for treatment of his wife and care of
his new born.
24. This order shall, however, be subject to the following conditions:
i. Petitioner/accused shall furnish surety and personal bonds in
the amounts of Rs. 1 Lakh (One Lakh) each (surety bond of Rs.
One Lakh to be furnished by two persons amongst the relatives of
the petitioner each liable in the amount of Rs. 50,000/-) to the
satisfaction of the ld. Registrar Judicial of this Court and the
Superintendent of the Jail concerned respectively.
ii. Petitioner/accused shall not cause any threat, inducement or
pressure to any of the prosecution witnesses so as to dissuade them
from disclosing the true facts of the case before the Court.
iii. The petitioner/accused shall surrender his passport, if any,
having been issued in his favour, before the ld. Registrar Judicial of
this Court during the period of the bail.
iv. The petitioner/accused shall share all his mobile numbers to
the SHO P/S Anantnag.
v. The petitioner/accused shall not repeat the commission of
any crime while being on bail.
vi. The petitioner/accused shall surrender before the
Superintendent of the Jail concerned in which he is presently lodged
on the twenty second day of his release in the case whereupon the
Superintendent of the jail concerned shall lodge him in his jail as an
under-trial in the case FIR in question and shall continue to produce
him along with the co-accused through the virtual mode at the
hearings of the case.
Bail App No. 1/2026 Page No 14
vii. The ld. Trial Court shall be competent to proceed against the
petitioner/accused in case of violation of any bail conditions.
viii. In case the requisite surety bonds are furnished to the
satisfaction of the Registry of this Court, a formal release order
shall be issued by the Registrar Judicial directing the
Superintendent of the Jail concerned to release the petitioner
provided he is not involved in any other cases.
25. This application is disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
03.04.2026
Shahid Manzoor
Bail App No. 1/2026 Page No 15