Jammu & Kashmir High Court – Srinagar Bench
Shamin Ahmad Phamda vs Union Territory Through Police on 10 February, 2026
Serial No. 11
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlM (17/2026) in Bail App 2/2026
Shamin Ahmad Phamda
...Petitioner(s)/Appellant(s).
Through: Mr. M. M. Khan, Advocate
Vs.
Union Territory Through Police
Station Safakadal and Anr.
...Respondent(s).
Through: None.
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
10.02.2026
1. There is no representation on the part of the respondents.
2. Mr. Waseem Gul, Ld. GA accepted notice on behalf of the respondent
No. 1 on the last date of hearing i.e. 14.01.2026.
3. It is reported by the Registry that notice upon respondent No. 2 was sent
to him through SHO concerned, but the report has not been received back.
4. Let a fresh notice be issued to the respondent No. 2 to be served upon
him by the SHO, Police Station, Safakadal Srinagar.
5. Through the medium of the instant petition filed in terms of the
provisions of Section 482 BNSS corresponding to Section 438 of the repealed
Code of Criminal Procedure, 1973, the petitioner seeks the grant of pre-arrest
bail in his favour in Case FIR No. 13/2025 registered with Police Station
Safakadal Srinagar on the grounds, inter alia, that he has been falsely and
frivolously implicated in the case FIR along with two others when he is
innocent and has not committed the alleged offence; that the allegation of
selling hundred golden biscuits at the cost of Rs. 5 Lacs is beyond imagination
and unacceptable leading to nothing but a lie; that he is a respectable citizen
of the country and is deeply rooted in the society and, as such, he shall get
lowered in the estimation of the public in case of his arrest on false and
frivolous allegations; that his right to life and liberty shall stand curtailed in
case of his arrest in the Case FIR and that shall abide by any conditions as may
be imposed by this Court while enlarging him on bail.
6. Heard learned counsel for the petitioner in respect of his prayer for grant
of interim pre-arrest bail.
7. Learned counsel for the petitioner submitted that petitioner is innocent
and has not committed the alleged offences, who has been falsely and
frivolously implicated in the case FIR. He contended that petitioner is deeply
rooted in society and he shall abide by the conditions that may be imposed by
this court. He further submitted that petitioner shall suffer an irreparable loss
in terms of his reputation in the estimation of the society if he gets arrested on
account of the false allegations.
8. A ground appears to be made out in the opinion of the court for grant of
interim pre-arrest bail in favour of the petitioner in Case FIR No. 13/2025
registered with Police Station Safakadal Srinagar under Sections 74, 109,
115(2), and 126(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS), subject to
some reasonable conditions.
9. 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; AdriDharan
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.
10. The Hon’ble Apex Court in its Judgments cited as “Siddharam
Satlingappa Mhetre Vs. State of Maharastra 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 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 Judgments held the earlier law on
the subject laid down in Chain Lal vs. State of Madhya Pradesh (1976) 4 SCC
572; Salau-ud-din 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 @ 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.
11. It was held by the Apex Court in “Siddharam Satlingappa Mhetre Vs.
State of Maharastra decided on 02/12/2010, AIR 2011 SC 312” that
purpose of Anticipatory Bail is to uphold cardinal principle of criminal
jurisprudence that an accused person is presumed to be innocent till he is
proved to be guilty and that section 438 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 her 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.
12. 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.”
13. 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.”
14. In the recent judgment of “Sushila Aggarwal and others vs. State
(NCT of Delhi) and another decided on 29, 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 not 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.
15. List on 10th March, 2026.
16. In the meantime, and till next date of hearing, SHO, Police Station
Safakadal Srinagar, is directed that he shall in the event of arrest of the
petitioner in connection with the case FIR bearing no. 13/2025, registered with
his Police Station, release him from custody subject to his furnishing surety
and personal bonds to the tune of Rs. 50,000/- to his satisfaction for the
fulfillment of the following conditions that:
a. petitioner shall not cause any threat, undue influence or inducement
on any person(s) acquainted with the facts of the case so as to
dissuade them from disclosing such facts to the police or the court;
b. petitioner shall associate with the Investigation Officer (I.O) during
investigation of the case.
c. petitioner shall not leave the limits of the UT of J&K without the prior
permission of the I.O of the case;
d. petitioner shall remain punctual at the trial in case of the presentation
of any final report/challan;
e. petitioner shall not repeat the commission of any crime;
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
10.02.2026
Shahid Manzoor
