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Where custodial interrogation is unwarranted, and where the nature of investigation does not substantially lead to a risk of absconding or tampering with evidence, anticipatory bail must be granted, as was highlighted in a judgement by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, before a bench consisting of Hon’ble Justice Mohd. Akram Chowdhary, in the Ghulam Nabi Malik vs. Union Territory of Jammu & Kashmir [Bail Appl. No. 155/2021], on 03.02.22.

The present application has been filed under Section 438 of the Code of Criminal Procedure, 1973, (Cr.PC) for grant of bail in anticipation of arrest of the petitioner in case FIR registered at the Police Station, Kupwara under Sections 153-A/120-B of the Ranbir Penal Code (RPC) and 13 Unlawful Activities (Prevention) Act, 1967 (UA(P) Act). The factual matrix of the case is that on 13.11.2009 (Friday), after conclusion of Friday congregation, an unruly mob in the form of procession came out led by eight people including the petitioner herein, raising anti-national slogans against the sovereignty and integrity of India; that through their speeches they tried to spread hatred against India urging people to wage war at each and every level. The case was registered at Police Station, Kupwara vide FIR No.174/2009 for the commission of offences punishable under Sections 153-A/120-B RPC and 13 of UA(P) Act, however, during the course of investigation the commission of offences punishable under Sections 153-A/120-B RPC were only proved and not u/s 13 of UA(P) Act. During the course of investigation, it was found that the persons involved in the incident were affiliated with Hurriyat.

The Learned Counsel for the Petitioner vehemently argued that the respondent-police is hell-bent to take the petitioner into custody, in an old case of the year 2009 implicating him falsely; that the petitioner is a respected person of the area and his image shall be tarnished in public, in case respondents succeed to arrest him; that the custodial interrogation of the petitioner as an accused in a case of 2009 is unwarranted at this stage and prayed that he be admitted to bail in anticipation of his arrest. It was further argued that the petitioner had initially applied for grant of bail in anticipation of his arrest before the court of learned Sessions Judge, Kupwara, however, the said court did not find favour with the application and it was rejected vide order dated 08.12.2021.

The Learned Counsel for the Respondents, per contra vehemently argued that the petitioner is not entitled to grant of bail in anticipation of his arrest in a serious case for the commission of offences punishable under Sections 153-A and 120-B RPC. He further argued that in view of the serious and grave nature of the offence, petition be rejected so that the petitioner is prosecuted in a proper manner before the court of law.

It was noted that the lower court rejected the bail plea on the grounds that the contentions in favour of the petitioner were ill conceived and misplaced because it is the application in terms of Section 438 Cr.PC 1973. While disposing of the instant application the question of cognizance does not arise as the application on hand pertains to bail rather than stage for taking cognizance. Here in the present case vide police report the alleged offence is against State and no prima facie case for grant of anticipatory bail is made out. Accordingly, the application was rejected be consigned to records after due completion under rules.

The High Court of Jammu & Kashmir at Srinagar, a catena of judgments and precedents were relied upon wherein it had been laid down that while dealing with the application for bail in a non-bailable offences, the courts shall take into consideration the gravity of the offence, severity of punishment which it carries, prima facie satisfaction of the court in support of charge, impact of such offences on larger public interest, possibility of tampering of evidence by accused and other like factors. It was further noted that in the instant case, the offence under Section 153-A RPC is punishable with an imprisonment which shall not be less than four years but may extend to ten years and shall also be liable to fine; whereas the offence punishable under Section 120-B RPC is punishable in the same manner as if had abetted such offence. The petitioner, even if the case is proved against him, shall be punishable to the maximum sentence of ten years, therefore, there is no statutory bar to grant him bail. The petitioner is required in an old case which has been registered about 12 years back and at this stage of investigation of the case, in the considered opinion of this Court, the custodial interrogation of the petitioner is unwarranted. The investigation of the case in absence of the custodial interrogation of the petitioner can be concluded. The petitioner shall be subjected to unnecessary harassment in case of his arrest in such an old case. Thus, it was held that the petitioner is entitled to be admitted to bail in anticipation of his arrest. The Court issued direction accordingly.

Click here to read the judgement.

Judgement reviewed by Bhargavi