An accused is presumed to be innocent until he is proven guilty and anticipatory bail can be denied only in exceptional cases, the Jammu and Kashmir High Court recently reiterated while granting anticipatory bail to an accused in a case involving sexual offences and harassment [Mehmood Ur Rayaz Bhat v. Union Territory of Jammu & Kashmir].
Justice Mohd. Yousuf Wani referred to the Supreme Court’s decision in Siddharam Satlingappa Mhetre v. State of Maharashtra in which it was held that an accused person granted anticipatory bail cannot be required to surrender before the trial court and reapply for regular bail.
A requirement to the contrary would be against the intent of Section 438 of the Criminal Procedure Code (CrPC) as it infringes upon personal liberty, the Court said.
The single-judge emphasized the protection granted by anticipatory bail should remain in effect until the trial's conclusion, unless there are new circumstances justifying its cancellation.
"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," the Court said.
Therefore, the Court made the interim anticipatory bail granted in favour of the accused permanent.
“This Court is of the considered opinion that it may be in the ends of justice in case the interim pre-arrest bail already granted in favour of the petitioner vide order dated 29.07.2022 is made absolute, subject to some reasonable terms and conditions,” the Court directed.
The Court passed the order while considering two connected matters filed by accused Mehmood Ur Rayaz Bhat - one, a bail application and second, a petition under Section 482 of the Code of Criminal Procedure for quashing the case against him.
Bhat, who had been on anticipatory bail since July 2022, filed the petition seeking to quash the FIR registered against him at Police Station Gool, District Ramban.
The FIR was filed against him for alleged offences under Sections 354C (voyeurism), 504 (intentional insult with intent to provoke breach of the peace) and 509 (word, gesture, or act intended to insult the modesty of a woman) of the Indian Penal Code (IPC), and Section 11(i)(iv) of the Protection of Children from Sexual Offences Act, 2012 (sexual harassment).
The petitioner contended that the FIR was the result of a vendetta stemming from a property dispute with a colleague. The petitioner alleged that his colleague, with her husband’s assistance, lodged false complaints to tarnish his reputation and instigate legal action.
The Court referred to a catena of cases and listed a listed our number of factors and parameters for consideration laid down by Supreme Court while dealing with anticipatory bail.
These included the seriousness of the accusations, the accused's specific role, his criminal history including prior convictions, the risk of the accused fleeing, the potential to repeat similar offences, and whether the allegations were made primarily to injure or humiliate the applicant etc.
The Court observed when anticipatory bail under Section 482 of the BNSS in being considered, the Court must first ensure that the conditions necessary for seeking such special relief are met.
Once these preliminary conditions are satisfied, the Court has to then apply all relevant principles and legal guidelines typically required for evaluating a regular bail application, the single-judge underlined.
“While considering the anticipatory bail under section 482 of the BNSS, the court has to primarily satisfy itself regarding the conditions precedent for seeking such special relief and when such prior conditions are fulfilled, then the court has to consider all those principles and guiding rules which are necessary under law for consideration of a regular bail application,” the Court said.
Accordingly, the interim bail granted to the petitioner was made absolute subject to certain conditions. Among other conditions, the petitioner was directed to submit personal and surety bonds worth ₹25,000.
While the Court allowed the plea for anticipatory bail, it rejected the petitioner's plea to quash the FIR.
“Keeping in view the perusal of the record of the file and the consideration of the rival arguments advanced on both the sides, this Court is of the considered opinion that no ground appears to be made out for quashment of the FIR in question, bearing No. 0056/2022 dated 08.06.2022,” the order said.
The petitioner was represented by advocate Deepika Singh Rajawat.
Government Advocate Eishaan Dadhichi appeared for the State.
[Read Order]