Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 467 (JK)

Abdul Gani Dar v. Union Territory of J&K

2020-09-08

SANJAY DHAR

body2020
Judgment The petitioners have filed the instant petition seeking bail in anticipation of their arrest. It is averred in the petition that the petitioners had a proprietary land situated at Humhama but one person, namely, Nazir Mirza, a Prosecuting Officer, has been claiming to have purchased some portion of the said land from one of the brothers of the petitioners. It is further averred that said Mr. Nazir Mirza, with the aid and assistance of police, started raising construction on the land in question without permission of the petitioners compelling the petitioners to file a complaint before the Municipal Authorities. As a consequence of this, the construction was demolished by the Municipal Authorities. 2. It is further averred in the petition that Mr. Nazir Mirza, having influence in the Police Department, started harassing the petitioners and filed a false complaint with the police against the petitioners. Accordingly, the petitioners approached the Court of learned Sessions Judge, Budgam, with a prayer for grant of anticipatory bail. Learned Sessions Judge, Budgam, vide order dated 04.07.2020 granted interim bail to the petitioners but the same was withdrawn vide order dated 23.07.2020 on the ground that as on the date of filing of the application, no FIR had been registered by the police against the petitioners. 3. It is contended that the complaint, on the basis of which FIR No.263/2020 for offence under Section 447, 427 and 379 IPC has been registered against the petitioners, is false and frivolous being a consequence of vengeance on the part of complainant who is attributing demolition of his house to the petitioners. Copy of the FIR has been annexed with the petition. 4. The respondents have opposed the bail application by filing reply thereto. In their reply, it has been contended by the respondents that the allegations in the FIR against the petitioners are serious in nature, inasmuch as it is alleged in the FIR that the plinth of the boundary wall of the plot of land belonging to the complainant was dismantled by the petitioners and they have also stolen some iron lying over there. It is also contended that the petitioners, by suppression of the fact that FIR had not been registered against them at the time when they had obtained interim bail from the Court of learned Sessions Judge, Budgam, have misled the Court, as a result of which learned Sessions Judge declined to grant any relief to the petitioners. 5. I have heard learned counsel for the parties and perused the record of the case. 6. So far as contents of FIR are concerned, it is alleged therein that on 06.07.2020, the petitioners trespassed into the land of the complainant situated at Humhama Budgam and dismantled the concrete boundary wall that was constructed by the complainant over there. It is also alleged in the FIR that some iron was stolen from the site. On the basis of these allegations, offences under Section 447, 427 and 379 IPC have been disclosed against the petitioners. 7. Petitioners have placed on record the documents to show that they had lodged a complaint against the complainant with Municipal Authorities in respect of the construction that was being raised by him on the land in question and the authorities had even taken action on the basis of said complaint. So the contention of the petitioners that the FIR is a result of land dispute between the parties is substantiated from the material on record. Prima facie, it appears that the dispute between the parties is of civil nature. 8. So far as the offences disclosed in the FIR against the petitioners are concerned, only offence under Section 379 IPC is non-bailable. The allegation regarding theft of iron contained in the FIR appears to be vague and in any case the same is not of such a serious nature so as to disentitle the petitioners to the protection from this Court, particularly in the backdrop of the facts and circumstances of this case. 9. Coming to the contention of the learned counsel for the respondents that the petitioners have misled the Court of learned Sessions Judge, Budgam, by stating that FIR had been registered against them at the time of presentation of application before the said Court though the same had not been registered at that time. 9. Coming to the contention of the learned counsel for the respondents that the petitioners have misled the Court of learned Sessions Judge, Budgam, by stating that FIR had been registered against them at the time of presentation of application before the said Court though the same had not been registered at that time. In this regard, it is to be noted that an applicant can move a Sessions Court or High Court for grant of anticipatory bail in terms of Section 438 of the Code of been clearly laid down by the Supreme Court that filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. 10. In view of the observations of the Supreme Court as noted above, the petitioners were well within their rights to approach the Court of learned Sessions Judge, Budgam, for grant of anticipatory bail even before the filing of FIR because their apprehension with regard to their arrest in connection with accusation of non-bailable nature was real and not illusory. The contention of learned counsel for the respondents, in this regard, is without any merit and deserves to be rejected. 11. In Gurbaksh Singh Sibbia’s case (supra), the Supreme Court has also laid down principles for grant of anticipatory bail by observing as under: “In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. In fact, there are numerous considerations, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. But the converse of these propositions is not necessarily true. In fact, there are numerous considerations, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail.” 12. Applying the aforesaid principles to the present case, it is clear that there was previous enmity between the parties arising out of some land dispute which has resulted in filing of complaint by the petitioners before the Municipal Authorities against the complainant and a counter complaint by the complainant before the police authorities against the petitioners. In these circumstances, it cannot be ruled out that filing of FIR by the complainant has stemmed out of some ulterior motive. Apart from this, the allegations made in the FIR against the petitioners are not of such serious nature which would disentitle them from grant of pre-arrest bail 13. For the foregoing reason, the petition is allowed and it is directed that in the event of arrest of the petitioners in connection with FIR No.263/2020 for offences under Section 447, 427 and 370 IPC of Police Station, Budgam, they shall be released subject to the following conditions: 1. That they shall furnish personal bond in the sum of `50,000/ each with one surety each of the like amount to the satisfaction of the Investigation Officer concerned 2. That they shall appear before the Investigating Agency, as and when required. 3. That they shall not leave the territorial limits of this Court, without permission of this Court; 14. Application shall stand disposed of.