B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 1

Serial No. 9

Suppl. Cause List- III

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

(Th. Virtual Mode)

Bail App No. 300/2024 CrlM No. 617/2025

Pronounced on: 25/09/2026

Uploaded on: 25/09/2026

Ali Hussain Shah

S/o. Azam Hussain Shah

R/o. Village Shergarhi Tehsil Chassana, District Reasi

Through his father Azam Hussain Shah

…Applicant/Petitioner.

Through: Mr. K.S. Johal, Ld. Sr. Advocate with

Mr. Supreet R.S. Johal, Advocate

Vs.

Union Territory of Jammu and Kashmir Through

Senior Superintendent of Police, Crime Branch, Jammu

...Respondent.

Through: Ms. Monika Kohli, Sr. AAG.

CORAM:

HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE

JUDGMENT

1. Through the medium of the instant petition filed under the

provisions of Section 483 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (hereinafter referred to as “BNSS”, for short)

corresponding to Section 439 of the repealed code of Criminal

Procedure, 1973 (hereinafter referred to as the “Code”, for short),

the petitioner has sought the grant of regular bail in his favour in

case FIR No. 19/2024 registered with Police Station, Arnas, Reasi

under Sections 409, 420, 467, 468, 471, 477-A & 120-B IPC,

subsequently investigated by the Crime Branch, Jammu and having

culminated into the filing of a Final Police Report/Challan before

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the Court of learned Chief Judicial Magistrate, Reasi (hereinafter

referred to as the “Trial Court”, for short).

2. The concession of bail has been sought by the petitioner on the

grounds inter alia that he has been falsely and frivolously

implicated in the case FIR when he is innocent and has not

committed the alleged offences. That he earlier moved an

application before the ld. Trial Court for grant of bail in his favour

but the ld. Trial Court, without appreciating the merits of the case

and the investigation so far conducted, by way of further

investigation dismissed his petition, which prompted him to

approach this Court.

The he was appointed by the Government of Jammu & Kashmir

as Class IV and was posted at Treasury Office, Mahore. That

thereafter he was transferred in Sub Treasury Office, Dharmari,

Reasi and since then he is working with full dedication and

determination to the entire satisfaction of the department at Sub

Treasury Office, Dharmari, Reasi. That being a dutiful public

servant, he did his job to the utmost satisfaction of his superiors and

till date, except the case in question i.e. FIR bearing No. 19/2024,

no other criminal proceeding or any other proceedings are pending

against him. The he had an unblemished track record during his

service. That Assistant Treasury Officer, Dharmari vide order dated

13-09-2023 distributed the work among the officials including him

for the smooth functioning of the treasury.

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That the Assistant Treasury Officer Dharmari, Reasi on

03.03.2024 telephonically intimated the District Treasury Officer,

Reasi regarding financial irregularities in the Treasury Office,

Dharmari. That The District Treasury Officer himself inspected the

abovementioned treasury and after scrutinizing the record it was

found that fraudulent payments involving significant amount of

Government money has been transferred from the treasury office

Dharmari into different account numbers.

That on 05-03-2024 the District Treasury Office, Reasi filed an

application before the Station House Officer, Police Station, Arnas

for registration of FIR regarding financial irregularities and

fraudulent payment from the Treasury, Dharmari. Thereafter, the

SHO P/S Arnas registered an FIR bearing No.0019 dated 06-03-

2024 under section 409 of IPC against the petitioner/accused,

Treasury Officer and Accountant for embezzlement of public

money from 04-05-2023 to 01-03-2024.

That after the registration of FIR by the Police Station Arnas,

Reasi, the PHQ J&K Jammu vide order No.538 of 2024 dated 11-

03-2024 transferred the investigation of the above-mentioned FIR

from District Police, Reasi to EOW, Crime Branch, Jammu.

Subsequently Zonal Head Quarter, EOW, Crime Branch Jammu on

13-03-2024 constituted a Special Investigation Team (SIT) for

conducting the in-depth investigation of the above-mentioned FIR.

That he was illegally arrested on 13-03-2024 by the District Police,

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 4

Reasi while he was working in the Sub Treasury Office, Dharmari,

Reasi.

That on 12-06-2024, the respondent-Investigating Agency filed

a Preliminary Charge sheet before the Duty Magistrate, Reasi as on

that day the courts were observing summer vacation across the

Jammu region and it is specifically mentioned in the

abovementioned preliminary charge sheet that the further

investigation of the above-mentioned FIR is still going on and

supplementary charge sheet shall be produced before the Court after

completion of the same. That the preliminary charge sheet was filed

under section 409, 420, 467, 468, 471, 477-A and 120-B of Indian

Penal Code. That a preliminary chargesheet was produced by the

respondent while he was in the jail and there only the respondent

handed over a copy of chargesheet to him.

That he filed an application for grant of statutory bail under

section 167(2) on 25-06-2024 before the court of Chief Judicial

Magistrate, Reasi wherein response was filed by the respondent

before the ld. Trial Court but that application was not allowed. That

the embezzled amount was reported to have been transferred into

285 account numbers by him but the fact remains that the amount

has been transferred by the co-accused namely Ajeet Kumar,

Assistant Treasury Officer and Balbir Singh, Accountant as he

being a class-IV Employee had not power and access to transfer the

alleged amount.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 5

That the co-accused in the FIR namely Ajeet Kumar the then

Assistant Treasury Officer has been granted bail by this Court vide

order dated 25.11.2024. That he was arrested on 13.03.2024 and

since then he is languishing in jail and his first remand was granted

by the Judicial Magistrate 1

st

Class, Mahore on 14.03.2024. That he

had undertaken to abide by all the conditions that may be imposed

upon him but the ld. Trial Court did not enlarge him, when the main

accused Ajeet Kumar being the then Assistant Treasury Officer had

already been granted bail. That his continued detention since

13.03.2024 is violative of his constitutional guarantee under Article

21 of the Constitution of India. That in view of the criminal

jurisprudence adopted by our country, an accused is presumed to be

innocent until proved guilty at the trial. That he undertakes that he

will not misuse the concession of bail by absconding at the trial or

by tampering with the prosecution evidence. That he shall abide by

any terms and conditions that may be imposed by this Court.

3. The ld. Senior Counsel further submitted that the petitioner is

suffering from various ailments and his health has been

deteriorating in jail. He contended that the copies of the medical

records of the petitioner have also been placed on the record by this

Court.

4. The respondent-UT through Crime Branch, Jammu has resisted the

bail petition on the grounds that none of the legal rights of the

petitioner stand violated as he was arrested on account of his

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 6

involvement in heinous offences in case FIR No. 19/2024. That in

view of the facts and circumstances enumerated during the course

of investigation, the statements of witnesses, bank records, official

communication of different corners and Forensic Expert

report/opinion, it has been found that accused Ali Hussain Shah, the

then MTS of Sub-Treasury Dharmari having domain over credential

code AO01 (Auditor level) after hatching criminal conspiracy with

his co-accused persons namely Balbir Singh, then Accounts

Assistant, Sub-Treasury Dharmari having domain over credential

code AS01 (Superintendent level ) and Ajeet Kumar, then Assistant

Accounts Officer posted as ATO (Assistant Treasury Officer) Sub-

Treasury Dharmari having domain over credential code XX01,

being custodians of Treasury and having entrustment of the same,

with criminal intention, dishonestly prepared fake and forged

bills/vouchers of two Major Heads i.e. Pensions -2071 and NPS -

8342 w.e.f 04.05.2023 to 01.03.2024 repeatedly in different

intervals after falsification of accounts, uploaded the manual forged

bills/vouchers and created liability through A001, AS01 and XX01

and misappropriated an amount of Rs. 1,38,17971/- for their

wrongful gain and corresponding losses to the UT exchequer by

means of cheating and fraud. That the whole of the misappropriated

amount of Rs 1,38,17971/- was credited into the two accounts of

accused/petitioner-Ali Hussain Shah who, therefrom, transferred the

amount to various accounts besides making cash withdrawals. That

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 7

the ld. Trial Court has already dismissed the bail petition of the

petitioner on merits.

That the petitioner has not approached the Court with clean

hands and there is suppression as well as concealment of material

facts from this Court as such, the bail petition is not maintainable

and deserves to be dismissed.

That the petitioner has raised disputed questions of fact which

could not be raised in a petition under Section 483 of BNSS.

5. I have heard the learned counsel for the parties.

6. The learned counsel for the petitioner Mr. K.S. Johal, Ld. Senior

Advocate while reiterating his stand already taken in the bail

petition contended that the petitioner is innocent and has not

committed the alleged offences in the light of the statutory

definitions of the same.

7. The learned Senior counsel further submitted that without prejudice

to the innocence of the petitioner/accused, even if the allegations

against him are supposed to be true for arguments sake, he is still

entitled to concession of bail in the light of the law on the subject as

interpreted by the Hon’ble Apex Court and the other authoritative

High Courts of the Country including this Court from time to time.

He submitted that none of the offences alleged against the petitioner

attract the bar under Section 480 of the BNSS corresponding to

Section 437 of the Code. He submitted that even if the offences

punishable under Sections 409, 467, 471, 120-B IPC carry a

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 8

maximum sentence of life imprisonment, yet the said offences in

view of alternate punishments escape the bar under the aforesaid

Section of the BNSS/Code. He submitted that the petitioner/accused

has been behind the bars and his continued detention despite being

innocent tantamounts to his punishment before trial and violates his

fundamental right to life and personal liberty guaranteed to him

under Article 21 of the Constitution.

8. The learned Senior counsel further contended that it is a settled

legal position that bail is a rule and its denial an exception

especially in cases which do not carry sentence of death or

imprisonment for life in alternate and where there is also nothing on

record to show that the accused if admitted to bail will misuse the

concession granted in his favour by tampering with the prosecution

evidence and absconding at the trial. He submitted that it is well

settled that bar under Section 480 BNSS does not apply where the

imprisonment for life is provided disjunctive of death sentence. He

contended that the petitioner has served the department for a long

period and has an unblemished record at his credit. The learned

counsel further contended that none of the offences alleged against

the accused appears to be prima facie true in view of the definitions

of the said offences which require a guilty mind, dishonest intention

called as the mens rea. The learned counsel submitted that no

accusation or involvement of the petitioner could be ascertained

during the preliminary enquiry or the investigation process and he

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 9

has been roped in the matter by misuse of the offence under Section

120-B IPC providing for criminal conspiracy. The learned Senior

counsel further contended that the object of bail is to ensure the

attendance of the accused at the trial by giving him in the hands of

sureties. He submitted that the petitioner/ accused who is already

under suspension is not having any document within his custody.

The learned counsel contended that the gravity of the offences

which have not been committed by the petitioner cannot ipso facto

justify his detention.

9. The learned counsel further contended that the petitioner earlier

approached the learned trial court with the prayer for grant of bail

which was denied to him on the grounds of having no legal

justification. He further contended that the charge sheet in the case

was filed by the Investigating Agency after the stipulated period in

connection whereof the petitioner had also prayed for default bail

which too was denied to him by the learned trial court. He

contended that petitioner is deeply rooted in the society and there is

no question of his misusing the concession of bail and that he shall

abide by any conditions that may be imposed in case of his bail.

10. The learned Senior counsel in support of his contentions placed

reliance on the authoritative judgment of the Hon’ble Supreme

Court of India titled “Sanjay Chandra Vs. Central Bureau of

Investigation” (2012) 1 SCC 40”, and submitted that the Hon’ble

Apex Court admitted the appellant/accused to bail who was

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 10

allegedly involved in the economic offences of huge magnitude on

the ground that the heinousness of the offence is not the sole ground

for consideration of a bail application. He contended that the

Hon’ble Apex Court in the said case inter alia observed that since

the investigation in the case is already over with the presentation of

the charge sheet, as such, there is no need of keeping the

appellant/accused in custody. He further contended that the Hon’ble

Apex Court in the referred case highlighted the object of the bail as

to secure the appearance of the accused and the impact of the denial

of the bail being tanamounting to violation of the fundamental right

to life and personal liberty of an individual.

11. Per contra, learned Sr. AAG Ms. Monika Kohli vehemently

resisted the bail petition on the grounds that petitioner/accused is

involved in serious non-bailable and economic offences touching

the interests of the UT, who does not deserve the concession of bail.

That the petitioner/accused the then MTS hatched a conspiracy with

the co-accused for siphoning the State exchequer to an amount of

Rs.1,38,17971/- as a result of generation of false claims through

preparation of false documents by finally managing the same as a

responsible Govt. Servant. She submitted that the involvement of

the petitioner/accused as the main conspirator in the case is evident

from the facts and circumstances of the case. She submitted that the

case FIR in question bearing No. 19/2024 of Police Station, Arnas

came to be registered on the written report of the District Treasury

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 11

Officer, Reasi revealing mass financial irregularities as a result of

the criminal breach of trust and projecting of false claims/vouchers

and during investigation of the case by the economic wing of the

Crime Branch, Jammu, the commission of offences punishable

under Sections 409, 420, 467, 468, 471, 477 A, 120-B IPC came to

be fully established against the petitioner/accused as an active

conspirator. She submitted that an amount of Rs.1,38,17971/- was

found to have been siphoned from the government exchequer by the

petitioner and the co-accused thereby causing a huge wrongful loss

to the government exchequer. She submitted that since the

whereabouts of the siphoned money at the ultimate end is yet to be

ascertained, as such, the Investigating Agency has reserved the

liberty under law to conduct the further investigation in the case.

12. Learned Sr. AAG submitted that the petitioner/accused being a

responsible Govt. Servant, has failed to discharge his obligations of

rendering proper assistance and managing the affairs of the office

fairly and honestly. She contended that the Hon’ble Apex Court and

various other authoritative High Courts of the Country including

this Court has time and again laid down a catena of guiding

principles/considerations to be kept in mind while considering the

bail applications in serious non-bailable offences especially

touching the economy of the State and which inter alia include the

gravity of the offences, the circumstances under which the crime is

committed, the status and the position of the offender and the

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 12

impact of the crime on the State. She submitted that the gravity of

the offence is a consideration for rejecting the bail application.

She further submitted that the petitioner/accused being an

influential person is likely to misuse the concession, if granted in

his favour, by influencing the prosecution witnesses. It was further

submitted by the learned State counsel that the trial of the case is at

initial stage and the prosecution evidence is yet to be recorded, as

such, the release of the petitioner/accused at this stage is likely to

have an adverse impact on the trial of the case. That the release of

the petitioner/accused will give a bad signal and will encourage the

likeminded government servants for commission of such economic

offences to the prejudice of the State.

13. The learned Senior Additional Advocate General in support of her

contentions placed reliance on the authoritative judgment of this

Court passed in bail application No. 131/2024 titled “Mohd Isaq

Bhat Vs. Central Bureau of Investigation” decided on

03.07.2024 in which this Court denied bail to the petitioner/accused

who had been caught red handed while accepting a bribe of

Rs.18000/- when charge sheet had already been filed against him.

She contended that this Court in the referred case observed that

though the investigation in the case has been completed and charge

sheet is filed, yet if the accused is released prematurely there is a

real danger of his attempting to win over the complainant, shadow

witnesses and others who are witnesses to the seizure memo etc.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 13

The learned counsel submitted that it was further observed by this

Court in the referred case that an offence under the provisions of the

Prevention of Corruption Act cannot be dealt with the same

yardstick that may be applied in case of offences affecting human

body or other categories of offences. That it must be borne in mind

that offence against a human body may be a crime of passion, may

at times result in one man taking the life of another in a fit of anger

arising at the moment without premeditation and without any

preparation, but offences of cheating, corruption and other white

color offences are impossible to be committed without serious

premeditation. That such type of offences committed by the accused

require a great deal of planning, arrangements and other

associations with co-accused persons. The learned counsel

submitted that on the analogy of the law laid down in the referred

case coupled with the circumstances under which the crime has

been committed by a responsible official dealing with the public

money, the bail application needs to be rejected.

14. Before proceeding ahead towards the disposal of the instant

petition, it is appropriate to give a brief resume of the facts of the

case relevant for disposal of the matter.

15. A written complaint was lodged by the District Treasury Officer,

Reasi, Sh. Qamar Rehman with Police Station, Arnas on 06.03.2024

bearing No. DTR/2023-24/1080-83 dated 05.03.2024 along with an

enquiry report of present petitioner/accused bearing reference No.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 14

DATJ/TRY/2023-24/12067-12069 dated 04.03.2024, to the effect

that upon being informed by the petitioner i.e. Treasury Officer,

Dharmari on phone on 03.03.2024 regarding financial irregularity

noticed by him in his treasury, he also inspected the said treasury

and after scrutinizing the record found that fraudulent payments

involving significant amounts of government money have been

made from the said Treasury Office, Dharmari to the accounts of

accused Mr. Ali Hussain Shah, MTS of the said treasury on various

occasions mainly involving two major heads 8342-NPS and 2071-

Pensionary charges/Pensionary benefits. That upon enquiry from

the co-accused ATO as to how the fraudulent payments have been

made/processed from his treasury under his control, he informed

that while en-cashing the bills on 02.03.2024 against payments

made by him on 01.03.2024, it was found that an amount of

Rs.9,95,887/- has been made against which there was no voucher

available. That upon scrutiny of the record, he found that said

payment was made through a separate file of the said amount in

addition to the main payment file of that day. That while tracing the

amount, it was found that said fraudulently drawn amount was

credited to the account of accused Mr. Ali Hussain Shah, MTS of

the said treasury, Dharmari on 01.03.2024. That it was also found

on further scrutiny of the record that such further amounts have

been processed on various occasions in the past also involving large

sums of government money. That it was also found that accused

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 15

Mr. Ali Hussain Shah, MTS of the said treasury was dealing with

compiling the daily liabilities of the treasury under different heads

and processing the payments from the past quite some time by

utilizing the logging in credential of AO01, AS01 and XX01 of the

treasury through VPN application. That the petitioner/treasury

officer also told him that due to network problems in the treasury

leading to the non-functioning of the Satellite lease line connection,

the treasury payments used to be done by connecting with the

mobile phone VPN network. That the accused MTS, Ali Hussain

Shah while using the VPN network secured the fraudulent

payments into his personal account Nos. 028104012000015 and

0105040120000002. That the said official/accused also exaggerated

the liability figures of the treasury beyond actual vouchers. That

from the statements of the treasury officer Dharmari

(petitioner/accused), it prima facie appears that co-accused-

Treasury Officer while authorizing the said MTS official to book

the daily liability of the treasury and make payments on his behalf,

did not cross check the figures against actual vouchers and also

while forwarding the monthly accounts to the office of the

Accountant General, J&K, Jammu as a result of which the said

accused Ali Hussain Shah, MTS managed to do the things in his

own way.

That the enquiry report enclosing the FIR also mentioned the

details of the fraudulent payments made/processed from the

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 16

concerned treasury office, Dharmari which came to be traced during

the then ongoing scrutiny of the record by the complainant i.e.

DTO, Reasi. The enquiry report enclosing the FIR lodged by the

complainant/DTO Reasi also mentioned that it is evident from the

scrutiny made by him that the MTS official Ali Hussain Shah

(accused) manipulated the treasury system for his own benefit as

the whole amount has been credited to his own saving accounts

mentioned in the enquiry report. That moreover the said MTS

official is absent from the duties since 02.03.2024 and his

whereabouts are not known.

That on the receipt of the said report, case FIR No. 19/2024

was registered by the Police Station, Arnas under Section 409 IPC

against the accused Ali Hussain Shah and investigation started

which was subsequently transferred to the economic offences Wing

of the Crime Branch, Jammu vide PHQ, Jammu Order No. 538 of

2024 dated 11.03.2024. During the investigation of the case, the

petitioner along with co-accused were arrested on 14.03.2024. That

during investigation of the case searches were conducted at the

house of the accused Ali Hussain Shah but no incriminating

documents, cash, check books, gadgets, documents pertaining to

moveable/immovable properties were found/recovered. That during

the investigation the commission of offences punishable under

Sections 409, 420, 467, 468, 471, 477-A & 120-B IPC were found

established against the petitioner and the co-accused upon the

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ascertainment of the fact that accused Ali Hussain Shah then MTS

of the treasury concerned having taken over the credential Code

AO01 (Auditory level) after hatching conspiracy with his co-

accused persons, namely, Balbir Singh, the then Accounts Assistant

Sub Treasury having taken over credential Code AS01

(Superintendent Level) and the co-accused, namely, Ajeet Kumar,

the then Assistant Accounts Officer posted as ATO (Assistant

Treasury Officer) of Sub Treasury Dharmari having taken over

credential Code XX01 being custodian of the treasury and having

entrustment of the same with criminal intention, dishonestly

prepared fake and forged bills/vouchers of two major heads i.e.

Pension 2071 and NPS-8342 w.e.f. 04.05.2023 to 01.03.2024

repeatedly at different intervals after falsification of accounts raised

the manual forged bills/vouchers and created liability thereby,

misappropriating an amount of Rs.1,38,17971/- for their wrongful

gain and the corresponding losses to the UT exchequer by means of

cheating and fraud. That misappropriated amount has been

subsequently credited to account numbers of different bank

branches of different beneficiaries all over the India and the

involvement of other persons cannot be ruled out in connection

whereof the further investigation of the case is kept open under

Section 173 (8) of the Code.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 18

16. The preliminary charge sheet against the petitioner and the other

co-accused is reported to be pending disposal before the learned

trial court.

17. Keeping in view the perusal of the application, the objections of

the Respondent-agency and the consideration of the rival arguments

advanced on both the sides in the light of the law on the subject,

this Court is of the opinion, that it may meet the ends of justice in

case the petitioner/accused is admitted to bail subject to some

reasonable terms and conditions.

18. Admittedly, in case of non-bailable offences which do not carry a

sentence of death or imprisonment for life in alternative, bail is a

rule and its denial an exception especially in cases where firstly the

custodial questioning of an accused is not imperative for the logical

and scientific conclusion of the investigation and secondly where

there is nothing on record to show that the accused, if admitted to

bail, will misuse the concession by tampering with the prosecution

evidence, by non-cooperation and association with the investigating

agency and also by absconding at the trial.

19. Apart from the statutory bar, if any, two paramount considerations

viz. likelihood of accused fleeing from justice and tampering with

the prosecution evidence relate to the ensuring of a fair trial of the

case in a court of law. It is essential that due and proper

appreciation and weightage should be bestowed on these factors

apart from others. The grant of bail or the denial of the same falls

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 19

within the purview of the judicial discretion meant to be exercised

on sound legal principles upon the logical interpretation and

application of the same in the given facts and circumstances of the

case. The necessary arrests subject to the law of bails as provided

under the Code, BNSS and the provisions of different special

Legislations are permissible under the Constitution of our Country

by way of a reasonable exception to the fundamental right to liberty

guaranteed under Article 21 of the Constitution and the mandate of

the provisions of Article 22 of the Constitution is meant to be

followed upon making any such necessary arrests.

20. In “State of Rajasthan Jaipur Vs. Balchand AIR 1977 S.C.

2447”, the Hon’ble Apex Court has held, “basic rule may perhaps

be tersely put as bail not jail, except where there are circumstances

of fleeing from justice or thwarting the course of justice or creating

other troubles in the shape of repeating offences or intimidating the

witnesses and the like, by the petitioner who seeks enlargement on

bail from the court.

21. It is also well settled that the bar imposed under section 480 of

BNSS on the exercise of the discretion in the matters of bail subject

to proviso contained in the section, is confined to the offences

carrying a sentence of death or imprisonment for life in alternative

and the offences carrying a sentence of imprisonment for life

disjunctive of death sentence are exempted from the embargo.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 20

22. No single rule or a golden litmus test is applicable for

consideration of a bail application and instead some material

principles/guidelines are needed to be kept in mind by the Courts

and the Magistrates for consideration of a bail application

especially including: -

i. The judicial discretion must be exercised with the utmost

care and circumspection;

ii. That the Court must duly consider the nature and the

circumstances of the case;

iii. Reasonable apprehension of the witnesses being tampered;

iv. Investigation being hampered or

v. The judicial process being impeded or subverted.

vi. The liberty of an individual must be balanced against the

larger interests of the society and the State.

vii. The court must weigh in the judicial scales, pros and cons

varying from case to case.

viii. Grant of bail quo an offence punishable with death or

imprisonment for life is an exception and not the rule;

ix. The court at this stage is not conducting a preliminary trial

but only seeking whether there is a case to go for trial;

x. The nature of the charge is the vital factor, the nature of

evidence is also pertinent, the punishment to which the

party may be liable also bears upon the matter and the

likelihood of the applicant interfering with the witnesses or

otherwise polluting the course or justice, has also a bearing

on the matter.

xi. The facts and circumstances of the case play a

predominant role.

23. The Hon’ble Apex Court in “Gur Bakash Singh Sibbia Vs. State

of Punjab AIR 1980 S.C. 1632”, referred to the following extract

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 21

from the American Jurisprudence having bearing on the subject of

bail,

“where the grant of bail lies within discretion of the court,

granting or denial is regulated to a large extent, by the facts

and circumstances of each particular case. Since the object of

detention order/imprisonment of the accused is to secure his

appearance and submission to jurisdiction and the judgment

of the court, the preliminary enquiry is whether a

recognizance or bond would yield that end. It is thus clear

that the question whether to grant bail or not, depends for its

answer upon a Variety of circumstances, the cumulative

effect of which must enter into the judicial verdict. Any one

single circumstance cannot be treated as of universal validity

for justifying the grant or refusal of bail”.

24. It has been laid down by the Hon’ble Supreme Court in “Sanjay

Chandra vs. Central Bureau of Investigation AIR 20012 SC

830”, at Para 14 of its judgment as under: -

“In bail applications, generally, it has been laid down from the

earliest times that the object of bail is to secure the appearance

of the accused person at his trial by reasonable amount of bail.

The object of bail is neither punitive nor preventive.

Deprivation of liberty must be considered a punishment,

unless it can be required to ensure that an accused person will

stand his trial when called upon. The courts owe more than

verbal respect to the principle that punishment beings after

conviction, and that every man is deemed to be innocent until

duly tried and duly found guilty. From the earliest times, it

was appreciated that detention in custody pending completion

of trial could be a cause of great hardship. From time to time,

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 22

necessity demands that some un-convicted persons should be

held in custody pending trial to secure their attendance at the

trial but in such cases, necessity is the operative test. In this

country, it would be quite contrary to the concept of personal

liberty enshrined in the Constitution that any person should be

punished in respect of any matter, upon which, he has not been

convicted or that in any circumstances, he should be deprived

of his liberty upon only the belief that he will tamper with the

witnesses if left at liberty, save in the most extraordinary

circumstances. Apart from the question of prevention being

the object of a refusal of bail, one must not lose sight of the

fact that any imprisonment before conviction has a substantial

punitive content and it would be improper for any court to

refuse bail as a mark of disapproval of former conduct whether

the accused has been convicted for it or not or to refuse bail to

an un-convicted person for the purpose of giving him a taste of

imprisonment as a lesson.”

25. The Hon'ble Supreme Court in “Dataram Singh vs State of UP

and Anr. 2018 3 SCC 22” has held that even if grant or refusal of

bail is entirely the discretion of a Judge, such discretion must be

exercised in a judicious manner and in a humane way observing as

follows:

“2. There is no doubt that the grant or denial of bail is

entirely the discretion of the judge considering a case but

even so, the exercise of judicial discretion has been

circumscribed by a large number of decisions rendered by

this court and by every High Court in the country. Yet,

occasionally there is a necessity to introspect whether

denying bail to an accused person is the right thing to do on

the facts and in the circumstance of a case.

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 23

26. In “Pankaj Jain vs Union of India and Anr. 2018 5 SCC 743”,

the Hon'ble Supreme Court has held that the grant of bail has to be

exercised compassionately. Heinousness of crime by itself cannot

be the ground to out rightly deny the benefit of bail if there are

other overwhelming circumstances justifying grant of bail. The

Hon’ble Apex Court in its Judgments cited as “Siddharam

Satlingappa Mhetre Vs. State of Maharastra AIR 2011 SC 312

and Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and

Anr 2020 SC online 98”, has interpreted law even on the subject of

anticipatory bail with a very wide outlook and while interpreting

concept of liberty guaranteed under Article 21 of the Constitution of

our Country in a flexible and broader sense.

27. This Court is conscious of the legal position that some of the

offences alleged against the petitioner i.e. 409, 467 & 471 IPC carry

a maximum sentence of life imprisonment owing to which fact

attraction or otherwise of the bar under Section 480 of BNSS,

corresponding to Section 437 of the Code is to be addressed to. As

hereinbefore mentioned, the bar imposed under Section 480 of

BNSS is not confined to the cases where the imprisonment for life

is provided as an alternative punishment disjunctive of death

penalty. In these offences, even the sentence of life imprisonment is

not absolute but as a maximum alternative.

28. In the case in hand, the petitioner is alleged to have committed the

offences punishable under Sections 409, 468, 471 & 477A IPC

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 24

under a conspiracy. He is a responsible official being posted as then

MTS Treasury and is alleged to have unmindfully and dishonestly

skipped all his official obligations so much so that he discharged

the role as main accused.

29. It was inter alia submitted by the learned Senior Counsel for the

petitioner during his arguments that the co-accused have already

been released on bail including the main accused Ajeet Kumar the

then Assistant Treasury Officer Dharmari Arnas, Reasi. He also

contended that since the investigation in the case is already

complete with the presentation of the final charge sheet, being at the

advanced stage of trial, there is no apprehension of the misuse of

concession by the petitioner.

30. In the opinion of the Court, the guiding factors/underlying

principles that have been from time to time evolved by the Hon’ble

Apex Court and various High Courts of our Country including this

Court for consideration of a bail application jointly or severally do

not justify the denial of bail to the petitioner/accused in the

backdrop of the facto legal scenario of the case.

31. This Court in its opinion is fully fortified with the authoritative law

laid down by the Hon’ble Apex Court cited as “Sanjay Chandra

Vs. Central Bureau of Investigation, (2012) 1 SCC 40” also

relied upon by the learned counsel for the petitioner, Mr. K.S. Johal,

Senior Advocate in which the bail was granted to the appellant who

was also involved in economic offences. It is profitable to

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 25

reproduce the relevant paras 24 and 25 of the judgment for ready

reference: -

“24. In the instant case, as we have already noticed that the

“pointing finger of accusation” against the appellants is “the

seriousness of the charge”. The offences alleged are economic

offences which have resulted in loss to the State exchequer.

Though, they contend that there is possibility of the appellants

tampering with the witnesses, they have not placed any

material in support of the allegation. In our view, seriousness

of the charge is, no doubt, one of the relevant considerations

while considering bail applications but that is not the only test

or the factor: the other factor that also requires to be taken note

of is the punishment that could be imposed after trial and

conviction, both under the Indian Penal Code and Prevention

of Corruption Act. Otherwise, if the former is the only test, we

would not be balancing the constitutional rights but rather

“recalibrating of the scales of justice.”

“25. The provisions of Cr.P.C. confer discretionary jurisdiction

on criminal courts to grant bail to accused pending trial or in

appeal against convictions, since the jurisdiction is

discretionary, it has to be exercised with great care and caution

by balancing the valuable right of liberty of an individual and

the interest of the society in general. In our view, the reasoning

adopted by the learned District Judge, which is affirmed by the

High Court, in our opinion, is a denial of the whole basis of

our system of law and normal rule of bail system. It transcends

respect for the requirement that a man shall be considered

innocent until he is found guilty. If such power is recognized,

then it may lead to chaotic situation and would jeopardize the

personal liberty of an individual.”

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 26

32. In “Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280”, the

Hon’ble Apex Court has laid down the special factors for taking

into consideration while exercising the bail jurisdiction and the

relevant para 8 of the said judgment is reproduced as hereunder for

ready reference: -

“8. The jurisdiction to grant bail has to be exercised on the

basis of well-settled principles having regard to the

circumstances of each case and not in an arbitrary manner.

While granting the bail, the court has to keep in mind the

nature of accusations, the nature of the evidence in support

thereof, the severity of the punishment which conviction will

entail, the character, behaviour, means and standing of the

accused, circumstances which are peculiar to the accused,

reasonable possibility of securing the presence of the accused

at the trial, reasonable apprehension of the witnesses being

tampered with, the larger interests of the public or State and

similar other considerations. It has also to be kept in mind

that for the purposes of granting the bail the legislature has

used the words “reasonable grounds for believing” instead of

“the evidence” which means the court dealing with the grant

of bail can only satisfy it (sic itself) as to whether there is a

genuine case against the accused and that the prosecution will

be able to produce prima facie evidence in support of the

charge. It is not expected, at this stage, to have the evidence

establishing the guilt of the accused beyond reasonable

doubt.”

33. The observations of the Hon’ble Apex Court laid down in “State

of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21” at para 18 of

the judgment also deserve a needful mention:

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 27

“18. It is well settled that the matters to be considered in an

application for bail are (i) whether there is any prima facie or

reasonable ground to believe that the accused had committed

the offence; (ii) nature and gravity of the charge; (iii) severity

of the punishment in the event of conviction; (iv) danger of the

accused absconding or fleeing, if released on bail; (v)

character, behaviour, means, position and standing of the

accused; (vi) likelihood of the offence being repeated; (vii)

reasonable apprehension of the witnesses being tampered with;

and (viii) danger, of course, of justice being thwarted by grant

of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan

Singh v. State (Delhi Admn.]. While a vague allegation that

the accused may tamper with the evidence or witnesses may

not be a ground to refuse bail, if the accused is of such

character that his mere presence at large would intimidate the

witnesses or if there is material to show that he will use his

liberty to subvert justice or tamper with the evidence, then bail

will be refused.”

34. The Hon’ble Apex Court in Sanjay Chandra’s case cited supra has

inter alia held at para 40 of the judgment, “the grant or refusal to

grant bail lies within the discretion of the Court. The grant or denial

is regulated, to a large extent, by the facts and circumstances of

each particular case. But at the same time, right to bail is not to be

denied merely because of the sentiments of the community against

the accused. The primary purposes of bail in a criminal case are to

relieve the accused of imprisonment, to relieve the State of the

burden of keeping him, pending the trial, and at the same time, to

keep the accused constructively in the custody of the Court,

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 28

whether before or after conviction, to assure that he will submit to

the jurisdiction of the Court and be in attendance thereon, whenever

his presence is required.”

35. A criminal court while considering a bail application in case of

non-bailable offences attracting no immediate statutory bar and in

respect of which the court is vested with the discretion shall

consider the relevant factors/guiding principles having been passed

by the authoritative courts from time to time and hereinbefore

mentioned in a justice oriented and realistic way without being

influenced by the gravity of allegations.

36. As hereinbefore mentioned, 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 2020 SC online 98” decided on January 29, 2020 by a

larger bench, has interpreted law even 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. It has been inter alia

observed by the Hon’ble Apex Court in the aforesaid judgments

that the exact role of the accused must be properly comprehended

before arrest is made. “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

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 29

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.”

37. The authoritative law relied upon by the learned Sr. AAG in

support of her arguments in case titled “Mohd. Ishaq Bhat V.

CBI”, decided on 03.07.2024 has been passed in the own facts and

circumstances of the case in which the direct allegations were

against the petitioner/accused who allegedly was apprehended by

the CBI red handed in a trap accepting a bribe of Rs.18000/-.

38. I have gone through the order dated 02.12.2024 passed by the Ld.

Trial Court on the earlier application bearing File No. 704/2024 of

the petitioner.

39. This Court is of the opinion that a petition in terms of Section 483

BNSS corresponding to Section 439 of the repealed Code shall

normally be filed, if needed, by either side as a successive one after

the disposal of the first application by a competent court. Although

there is no bar under the aforesaid provisions of law contained

under Section 483 BNSS in directly approaching this Court yet

fairness requires that the competent court of first level should not be

bypassed. Practice of directly approaching a High Court by

invoking the provisions of Section 483 BNSS is likely to

unnecessarily burden this Court with such matters which can in the

first instance be addressed under law by the courts below. The

competent jurisdictional courts below otherwise in most of the

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 30

cases use to be already informed of the matter being either the

committal/remand Magistrates or the trial courts. It is being

observed that generally the advocates practising in the High Courts

resort to such practice of directly approaching this Court for their

own convenience being unmindful of the petitioner’s losing one

forum. This Court is also of the opinion that power of a High Court

and of the court of Sessions under Section 483 BNSS is not

unlimited but the restrictions figuring under the provisions of the

Section 480 BNSS corresponding to Section 437 of the repealed

Code are deemed to be imported in the former (Section 483 BNSS).

A compelling justifiable ground or a circumstance should be made

out for directly approaching the High Court or a court of Sessions

under Section 483 BNSS for grant or cancellation of bail.

40. In the backdrop of the aforementioned discussion, the petition is

allowed and the petitioner/accused is admitted to bail in the case

FIR No. 19/2024 of Police Station Arnas, Reasi under Sections 409,

420, 467, 468, 471, 477-A & 120-B IPC subject to his furnishing of

surety and personal bonds to the tune of Rs.1 lac each respectively

to the satisfaction of learned Registrar Judicial (Jammu Wing) of

this Court and the Superintendent of the Jail concerned.

This order shall, however, be subject to the following conditions:

1) The petitioner/accused shall not directly or indirectly make any

inducement, threat or promise to any prosecution witnesses so as

to dissuade them from disclosing the real facts to the learned trial

B a i l A p p N o . 3 0 0 o f 2 0 2 4 P a g e N o . 31

court or to the Investigating Officer in view of the reported

further investigation.

2) The petitioner shall make available himself to the Investigating

Officer of the case if so, directed during the reported further

investigation of the case, if any.

3) The petitioner shall remain punctual at the trial of the case.

4) The petitioner shall not leave the limits of the UT of Jammu and

Kashmir without prior permission of the learned trial court.

5) The surety bond of Rs. 1 lac should be furnished on behalf of the

petitioner/accused by two persons amongst his relatives in equal

amounts.

41. It is very needful to mention that nothing in this order shall be

construed as any prejudging of or interference with the merits of the

case.

42. In case the requisite surety/bail bonds are furnished and attested to

the satisfaction of the learned Registrar Judicial (Jammu Wing) of

this Court, the Registry (Jammu Wing) shall issue an order

directing the Superintendent Jail concerned, where the petitioner is

presently lodged, for his release in the instant case subject to his

furnishing the requisite personal bond to the satisfaction of the said

Superintendent Jail concerned.

(MOHD YOUSUF WANI )

JUDGE

SRINAGAR

25.09.2026

Shahid Manzoor

Whether the order is speaking Yes

Whether approved for reporting Yes