HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Reserved on: 24.12.2025

Pronounced on: 16.04.2026

Uploaded on: 17.04.2026

Whether the operative part or full

judgment is pronounced: Full

Bail App No. 316/2025

Smanla Dorje Nurboo, aged 36 years

S/o Sh. Tsering Dorje,

R/o Likir, Leh

Presently lodged in District Jail Leh.

…..Petitioner(s)

Through: Mr. A P Singh, Advocate

Ms. Deachan Angmo, Advocate

Mr. Nikhil Verma, Advocate

Vs

Union Territory of Ladakh,

Through SHO Police Station, Leh

.…. Respondent(s)

Through: Mr. Vishal Sharma, DSGI with

Mr. Eishaan Dadhichi, CGSC

Mr. Rishabh Shukla, IPS Incharge SIT (I.O)

Bail App No. 320/2025

Deldan Namgail, aged 47 years,

S/o Sh. Lobzang Rinchen

R/o Kubet, Nubra

Presently lodged in District Jail Leh. …Petitioner(s)

Through: Mr. A P Singh, Advocate

Ms. Deachan Angmo, Advocate

Mr. Nikhil Verma, Advocate

Vs

Union Territory of Ladakh,

Through SHO Police Station, Leh ….Respondent(s)

Through: Mr. Vishal Sharma, DSGI with

Mr. Eishaan Dadhichi, CGSC

Mr. Rishabh Shukla, IPS Incharge SIT (I.O)

Coram: HON’BLE MR. JUSTICE MOHD YOUSUF WANI , JUDGE

S. No.

2 Bail App Nos. 316 & 320/2025

JUDGMENT

01. Through the medium of instant successive petitions filed in terms of the

provisions of Section 483 of the Bharatiya Nagrik Suraksha Sanhita, 2023

(hereinafter referred to as BNSS for short), the petitioners have sought bail

in case FIR No. 144/2025 dated 25.09.2025 of Police Station, Leh, in their

favour on the grounds inter alia that they are innocent and have not

committed the alleged offences under the case FIR. That they have been

falsely and frivolously implicated in the case FIR on the basis of political

rivalry. That their plea regarding their innocence has by and enlarge

remained unrebutted before the Courts below. That the alleged

statement/press conference attributed to the Petitioner No.1-Smanla Dorje

Nurboo was made by him in good faith as a public representative

concerning the health conditions of the persons who were on the hunger

strike and were belonging to his constituency.

That petitioner No.1 was in hospital immediately after the alleged

press conference made in the office of the Congress Party. That petitioner

No.1 continued to be in hospital attending to the critical condition of the

persons who were on hunger strike and continued to be with them on the

fateful day of 24.09.2025. That the youth of Apex body as well as the

religious organizations viz Shia, Sunni and Buddhist religious

organizations had given a call in the late evening of 23.09.2025 for a bandh

on 24.09.2025. That petitioner No.1 was not part of any Apex body of

youth or of religious organizations. That the important factual aspect to the

effect that Apex body which earlier comprised of all organizations of the

3 Bail App Nos. 316 & 320/2025

Ladakh including members of political parties was re-constituted and

members of political parties particularly of congress were removed as

members of a political Apex body to ensure that composition and nature of

the Apex body remains a political was known to the police concerned. That

unfortunate incident of 24.09.2025 thus was wholly unrelated to the alleged

press conference of the petitioner No.1 dated 23.09.2025.

That even if the statement/press conference as alleged is supposed

to have been so made, yet a cursory reading and understanding of the same

would indicate that there was nothing suggestive that the said

conference/statement was aimed at achieving any illegal consequences.

That the import and purport of the alleged statement/press conference of

the petitioner No.1viewed from any angle was to invite the attention of the

administration to the issue relating to the conditions of the persons of his

constituency who were on hunger strike. That FIR No. 142/2025 was

registered with the Police Station, Leh under Sections 192, 351(2) BNS

concerning the said conference. That since the offences alleged in case FIR

No. 142/2025 of Police Station Leh were bailable, therefore, the

mischievous object of arresting petitioner No.1 on false grounds, was

achieved by showing his involvement in case FIR No. 144/2025. That the

doubtful issue regarding applicability of Section 109 BNS was itself

appreciated by the learned Principal Sessions Judge, Leh while granting

bail to co-accused persons in the case FIR. That the allegations made

against three co-accused in the case FIR in question, who were already

granted bail by the learned Sessions Judge, Leh are almost identical. That

4 Bail App Nos. 316 & 320/2025

petitioner No.1 was not present on the fateful day of 24.09.2025 either on

or around the place of occurrence as he was in hospital attending the

deteriorating condition of the persons on hunger strike. That the petitioner

has been in custody in the case FIR since 27.09.2025. That the petitioner

No.1 has been suffering incarceration in violation of his fundamental right

to life and personal liberty and accordingly prays for concession of bail in

his favour on the ground of parity.

That there is no question of the petitioners’ misusing the

concession of bail by tampering with the prosecution evidence or by

absconding at the trial. That the seriousness of the allegations is needed to

be considered in respect of the alleged accusation and cannot be considered

in vacuum. That the object of the bail is to secure the presence of the

accused person at his trial by reasonable amount of his bail. The object of

bail is neither punitive nor preventive. That the courts owe more than

verbal respect to the principle that punishment begins after conviction and

that every man is deemed to be innocent until duly tried and found guilty.

That petitioner No.1 shall abide by any conditions inter alia to the

furnishing of bail bonds that may be imposed by this Court.

That petitioner No.2 is a resident of Kubet, Nubra, Leh and has

been a member of a Legislative Assembly as well. That he thus has a duty

towards the society, of course dischargeable within the parameters of law.

That in UT of Ladakh, over a period of time, there has been a cry by

the people for safeguarding their rights as citizens belonging to an area

which is distinguishable by its geographical location and cultural heritage.

5 Bail App Nos. 316 & 320/2025

That the public was making demands within the parameters of law and the

constitution. That the demands made by the people were absolutely

patriotic in their reach as also in their manifestations. That raising a

grievance and making a peaceful protest is the very essence and spirit of

various important fundamental rights guaranteed under the Constitution.

That unfortunately, a protest which was absolutely peaceful in

nature, was mishandled and allowed to become an unfortunate incident of

24.09.2025 leading to the registration of the case FIR No. 144/2025 of

Police Station, Leh dated 24.09.2025.

That petitioner No.2 has been arrested on 26.09.2025 when he was

on his way to surrender in the Court. That the petitioner No.2 is innocent

and has never ever made any violent response to anything in life. That he

being a devotee of Buddhism is non-violent in his deeds.

That the allegations of the police that petitioner No.2 was seen in

the CCTV footage installed outside Tata showroom adjacent to the BJP

office main gate where he was seen pelting stones at the CCTV camera and

thereby deliberately damaging it, is totally a lie. That he shall abide by any

conditions that may be imposed by this Court.

02. The respondent/UT of Ladakh through Police Station, Leh has resisted bail

applications on the ground that petitioner No. 1 Smanla Dorje Nurboo is a

very influential person and was sitting councilor of 6

th

LADHC Leh from

Saspol constituency, when petitioner No.2 is a former MLA of the

erstwhile State of J&K having considerable influence in both the Union

Territories particularly in the UT of Ladakh. That the release of the

6 Bail App Nos. 316 & 320/2025

petitioners/accused at this stage is likely to affect fair investigation in the

case FIR. That the petitioners/accused by misusing their positions as a

councilor and former MLA respectively have committed grave and very

serious offences, as such, do not deserve the concession of bail. That the

investigation so far has revealed that the petitioner No.1 has played a

pivotal role in the commission of offences and wantonly gave provocation

with an intention to cause riot. That unruly mob executed provocative act

of the petitioners/accused resulting in the commission of heinous offences.

That the abetment, incitement and provocation made by the petitioner

No.1/accused has led to brutal rioting at a massive scale which has further

led to mass damage to public as well as private property. That several

police and CRPF personnel have been brutally attacked and four people

have died due to the actions of the members of the mob. That the

government and private vehicles have been blatantly burnt and the mob has

committed arson on several public properties. That several members of the

unlawful assembly who furthered the criminal conspiracy are still

unidentified and as such the release of the petitioners/accused is likely to

affect the fair and logical investigation of the case. That the investigation so

far has revealed that petitioner No.1 was present near the spot of

occurrence when the petitioner No.2 was an active participant in the

violation. That the release of the petitioners/accused at this critical initial

stage is likely to enable them to tamper with the prosecution evidence.,

That petitioner No.1/accused Smanla Dorje Nurboo the then

sitting councilor of 6

th

LADHC, Leh provoked the youth just the previous

7 Bail App Nos. 316 & 320/2025

day of the occurrence through a press conference with other members of

the congress followed by flash of other videos on the social media. That he

being a former elected representative and law knowing influential political

office holder deliberately misused his social and political standing to

instigate and provoke the public to commit acts of violence, including stone

pelting, arson and destruction of public and private properties. The

investigation has revealed the accused’s presence near the places of

occurrence on 24.09.2025 and that they actively incited the others to

commit criminal acts which resulted in widespread law and order

disruption.

That during the investigation of the case, many co-accused

persons revealed that they joined the protest on 24.09.2025 after witnessing

the press conference of Smanla Dorje Nurboo and the press conference of

the Apex youth and religious youth which were given on 23.09.2029,

urging everyone especially the youth to join the protest on 24.09.2025

which directly demonstrates that such statements and threats were part of a

larger conspiracy that served as catalyst for the violent acts that followed.

That the petitioner/accused No.1 evaded his arrest for three days and finally

surrendered before the Court at Leh on 27.09.2025. That having regard to

the social and political influence of the petitioner No.1 there is every reason

to believe that if released on bail, he may obstruct the investigation and

continue to threaten the public order. That the petitioner/accused No.1

Smanla Dorje Nurboo is also involved in case FIR No. 142/2025 under

Sections 192, 351(2) BNS which came to be registered upon his

8 Bail App Nos. 316 & 320/2025

statement/press conference made by him on 23.09.2025 whereby he incited

and provoked the people at large resulting in the unfortunate incident of

24.09.2025. That the petitioner/accused Smanla Dorje Nurboo is one of the

key players behind the entire crime committed on the fateful day and his

release at this crucial stage of investigation will jeopardize the entire

process of investigation which relates to violent act in which four persons

died and huge damage was caused to the government and public properties.

03. That petitioner/accused No.2 who is an Ex-MLA and a person who holds

an important position in the society was expected to serve as a role model

and visionary for the younger generation and to guide them towards

development, moral values, modern education and progress, but he himself

indulged into the criminal acts which is prejudicial to public peace, security

and the maintenance of public order in the region. That petitioner No.2 by

misusing his position as Ex-MLA has committed grave and very serious

offences which are highly condemnable and as such, does not deserve any

leniency by way of concession of bail. That during investigation of the case

it surfaced that petitioner No.2 Deldan Namgail was clearly seen in CCTV

footage, videos and photographic evidence actively participating in the

protest held on 24.09.2025. That he was observed continuously provoking

the mob by raising slogans and directing others to move towards the

LAHDC Council gate. That the photo and videos evidence depicts him

actively leading and instigating the mob, pelting stones at the LAHDC

Council main gate, BJP office and at the office buildings of Secretary

Education/Director Finance and Additional PCCF located near the LAHDC

9 Bail App Nos. 316 & 320/2025

Council office. That he misused his influence, social and political standing

to instigate others to indulge in acts of stone pelting, arson, and violence

against public property and government establishments. That the said

accused was clearly captured in the CCTV camera installed outside the

Tata showroom adjacent to the BJP office main gate, wherein he was seen

pelting stones at the CCTV camera and thereby deliberately damaging it.

That after successfully damaging the CCTV camera, he was seen

celebrating by dancing, clearly demonstrating his willful intention to

destroy evidence related to the incident and to obstruct the course of

investigation. That the said act of the accused amounts to tampering with

crucial electronic evidence of the case. That the release of the said accused

at this stage is likely to tamper with the prosecution evidence.

04. The Court has heard the learned counsel for the parties who almost

reiterated their stands respectively taken in their pleadings i.e the

applications and the memos of objections.

05. The learned counsel for the petitioners/accused during his arguments inter

alia contended that the petitioners have been falsely and frivolously

implicated in the case FIR on the basis of political rivalry to wreck

vengeance. He submitted that the statement/alleged press conference dated

23.09.2025 attributed to petitioner No.1, was made by him in good faith

without any intention of commission of any illegal act by him or anyone

else. That the said statement/alleged press conference was made only in

relation to the persons of the locality who were on hunger strike in

connection with genuine demands falling within the parameters of law. He

10 Bail App Nos. 316 & 320/2025

contended that case FIR No. 142/2025 came to be registered with Police

Station, Leh on 23.09.2025 in the backdrop of the said statement of the

petitioner No.1 and as such, the happening of the second day when he was

not at all present at any site of the alleged occurrence could not have been

connected to the previous day’s statement of the petitioner No.1. He further

submitted that there was no proximity between the previous day’s

statement/alleged press conference made by the petitioner No.1 in good

faith concerning the health issue of the persons on hunger strike and the

next day’s violent incident when he was not at all present at any site of the

occurrence. The learned counsel submitted that petitioner No.1 as a

responsible person was on the previous day attending the hospital where

some of the hunger strikers who had fallen ill and hailing from his area

were admitted.

06. Learned counsel for the petitioners very vehemently submitted that in the

alleged statement/press conference of 23.09.2025 he uttered the words and

made the statements regarding any consequential action by his ownself

individually and he has nowhere in his statement as projected and

putforward by the investigation made any instigating or inciting remark

urging the public in general to come to violence.

07. The learned counsel submitted that petitioner No.1 has been suffering

detention in the case since last about seven months despite being innocent

and as such his fundamental right guaranteed to him under Article 21 of the

Constitution stands denied to him. The learned counsel submitted that the

health of the petitioner No.1 has deteriorated in confinement and besides

11 Bail App Nos. 316 & 320/2025

his family has also suffered on account of his continuous detention.

08. Regarding petitioner No.2, the learned counsel submitted that he also was

falsely and frivolously implicated in the case FIR on account of political

rivalry. The learned counsel submitted that he is a former MLA thus being

a respectable and reputed person of the locality commanding great respect

in the society who has never committed the acts alleged.

The learned counsel further submitted that the investigation in the

case FIR against the present petitioners is complete as the I.O of the case

has presented a final report/challan in the case FIR against nine accused

persons including the present petitioners. He contended that there is no

question of petitioners’ interfering in the investigation of the case.

The learned counsel further contended that the present

petitioners/accused are not alleged to have committed any offence carrying

the sentence of death or of life imprisonment in alternative, thus attracting

the bar for grant of bail in terms of Section 480(1)(i) BNSS. The learned

counsel submitted that the petitioners/accused are not involved in any

offence of murder punishable under Section 103(1) BNS or an offence of

culpable homicide not amounting to murder punishable under Section 105

BNS. The learned counsel further contended that there also appear no

reasonable grounds of the involvement of the petitioners/accused in the

commission of offences leveled against them, i.e, under Sections 3(5), 49,

50, 51, 52, 53, 54, 55, 57, 61(2) of Bhartiya Nyaya Sanhita, 2023 r/w 109,

115(2), 117(2), 118(1), 118(2), 121(1), 121(2), 125, 132, 135, 152, 189(2),

189(3), 189(4), 189(5), 190, 191(2) 191(3), 192, 195, 238(b), 303(2),

12 Bail App Nos. 316 & 320/2025

309(4), 309(6), 324(2), 324(3), 324(4), 324(5), 324(6), 326(e), 326(f),

326(g) & 332(b) of Bhartiya Nyaya Sanhita, 2023, 3(1).4 of Prevention of

Damage to Public Property Act, 1984, And 25(1AB) of the Arms Act, 1959

and more especially the offence punishable under Sections 50 and 51 of the

BNS.

The learned counsel further contended that the personal liberty of

the petitioners stands deprived illegally on account of their continued

incarceration. He further contended that with the presentation of the final

report/charge-sheet in the case FIR in the Court, there is no question of

petitioners’ interference in the process of investigation on account of their

influential social and political positions.

The learned counsel further contended that the Court of Principal

Sessions Judge, Leh has already granted bail to three other co-accused

namely (1) Rigzin Dorjey, (2) Jigmet Rafstan and (3) Imtiaz Hussain on the

similar allegations and as such, the parity demands the grant of bail to the

petitioners.

The learned counsel further contended that it is well settled

principle of law 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

alternative and where further there is no material on record that the accused

will misuse the concession of bail by tampering with the prosecution

evidence or absconding at the trial. He further contended that the

petitioners have no criminal antecedents nor have ever been convicted of

any offence. He contended that the unfortunate incident that took place on

13 Bail App Nos. 316 & 320/2025

24.09.2025, was never imagined and the same unfortunately did occur due

to mis-management of the protesting mob.

09. Per Contra, the learned counsel for the respondents very vehemently

submitted that the petitioners/accused are involved in the most heinous and

non-bailable offences punishable under Sections 3(5), 49, 50, 51, 52, 53,

54, 55, 57, 61(2) of Bhartiya Nyaya Sanhita, 2023 r/w 109, 115(2), 117(2),

118(1), 118(2), 121(1), 121(2), 125, 132, 135, 152, 189(2), 189(3), 189(4),

189(5), 190, 191(2) 191(3), 192, 195, 238(b), 303(2), 309(4), 309(6),

324(2), 324(3), 324(4), 324(5), 324(6), 326(e), 326(f), 326(g) & 332(b) of

Bhartiya Nyaya Sanhita, 2023, 3(1).4 of Prevention of Damage to Public

Property Act, 1984, And 25(1AB) of the Arms Act, 1959 and as such, they

do not deserve the concession of bail.

The learned counsels contended that the unfortunate incident of

24.09.2025 occurred as a result of the instigation and

incitement/provocation that was made in the form of a press conference by

the petitioner No.1 Smanla Dorgey Nurboo on 23.09.2025 followed by

flashing of videos on the social media. The learned counsel contended that

petitioner No.2-Deldan Namgail was captured by the CCTV camera while

doing violence on front lines on the incident day who attempted to damage

the CCTV camera so as to cause disappearance of the evidence against

him.

The learned counsel contended that a number of co-accused during

investigation of the case stated that they were instigated and provoked by

the press conference of the petitioner No.1 which he made a day before the

14 Bail App Nos. 316 & 320/2025

occurrence and came to be shared on social media.

The learned counsel contended that since the petitioners are

influential persons as being the then sitting councilor and a former MLA, as

such, there is every apprehension of their misusing the concession of bail

by threatening and intimidating the prosecution witnesses so as to keep

them away from disclosing the real facts at the trial of the case.

The learned counsel for the respondents further contended that in

view of the overall consideration of the guiding factors being evolved by

the Hon’ble Apex Court and various other High Courts of the Country

including this Court viz seriousness of the crime, nature of evidence,

character and antecedents, reasonable apprehension of accused’s misusing

the concession of bail by tampering with the evidence, impact of the crime

on society and the State etc etc, the petitioners do not deserve the

concession of bail for being involved in commission of heinous offences.

The learned counsel submitted that on 24.09.2025, Police Station,

Leh received a docket from the Incharge Police Post Housing Colony, Leh

informing that since the past about 14 days, a hunger strike was being

carried out at NDS Park near the General Post Office, Leh. That on

23.09.2025, through social media, the Youth Wing of the Apex Body had

circulated a call asking the public of Leh to assemble at NDS Park on the

said date. That in response, a large number of people, particularly youth

from different parts of Leh, began gathering at the venue on 24.09.2025.

That during the course of this assembly, certain miscreant youths,

acting in furtherance of a deliberate conspiracy, instigated those present

15 Bail App Nos. 316 & 320/2025

and converted the hunger strike into a violent procession. That the

gathering spilled out onto the road, and the mob began pelting stones at the

police and CRPF personnel deployed there, causing injuries to several

officers and endangering their lives. That the mob then directed their

violence towards the office of the Ladakh Autonomous Hill Development

Council (LAHDC), Leh, and engaged in stone pelting at the premises. That

with great effort, the police diverted the mob towards Housing Colony, but

in the meantime thousands of youths armed with rods and sticks joined the

procession.

That when the mob reached near the BJP office, they launched a

violent attack on the police personnel posted there, set ablaze a police

vehicle bearing registration No. LA-02/0746 deployed for the security of

the BJP office, and reduced it to ashes. That despite resistance, the mob

continued its violent attack upon the police with intent to kill, as a result of

which several police officials sustained grievous injuries and had to be

shifted to the District Hospital, Leh. That one CRPF personnel deployed at

the spot was also attacked and assaulted, and his AK-47 magazine

containing 30 live cartridges was forcibly snatched away by the miscreants.

That thereafter, the mob forcibly entered the BJP office, setting it on fire

along with several private vehicles and the official vehicle of the Dy. SP

D.A.R., Leh, bearing registration No. LA02/2153.

That after the mob was initially dispersed, they regrouped into a

procession and once again marched towards the LAHDC Leh office, where

they resumed their attack on the police, broke into the compound wall of

16 Bail App Nos. 316 & 320/2025

the office, and set fire to the Meeting Hall. That additional police forces

had to be summoned, and it was only after great difficulty that the

miscreants finally dispersed. That due to these violent acts, 38 police

personnel and 57 CRPF personnel suffered injuries, and substantial damage

was caused to government property, including the BJP building and official

vehicles. That the investigation has established that these criminal acts

were carried out pursuant to instigation made through social media and

criminal conspiracy. That since the above-mentioned acts committed

constituted cognizable offences punishable under Sections 189, 191(2),

191(3), 190, 115(2), 118(1), 118(2), 326, 324, 326(e), 326(f), 326(g), 309,

109, 117(2), 125, 121(1), 61(2) of the Bharatiya Nyaya Sanhita, 2023,

therefore FIR No 0144/2025 was registered at Police Station, Leh.

10. Keeping in view the perusal of the instant bail applications, the objections

filed in rebuttal and the consideration of the rival arguments advanced on

both the sides, the Court in the facts and circumstances of the case is of the

opinion that it may meet the ends of justice in case the petitioners/accused

namely, Smanla Dorje Nurboo, S/oTsering Dorge, R/o Likir, Leh and

Deldan Namgail, S/o Sh. Lobzang Rinchen, R/o Kubet, Nubra are

admitted to bail in case FIR No. 144/2025 of Police Station, Leh in respect

of the offences under Sections 3(5), 49, 50, 51, 52, 53, 54, 55, 57, 61(2) of

Bhartiya Nyaya Sanhita, 2023 r/w 109, 115(2), 117(2), 118(1), 118(2),

121(1), 121(2), 125, 132, 135, 152, 189(2), 189(3), 189(4), 189(5), 190,

191(2) 191(3), 192, 195, 238(b), 303(2), 309(4), 309(6), 324(2), 324(3),

324(4), 324(5), 324(6), 326(e), 326(f), 326(g) & 332(b) of Bhartiya Nyaya

17 Bail App Nos. 316 & 320/2025

Sanhita, 2023, 3(1).4 of Prevention of Damage to Public Property Act,

1984, And 25(1AB) of the Arms Act, 1959 only, subject to some

reasonable terms and conditions so that the further investigation in the case

FIR reported to be underway goes on smoothly with the smooth

commencement of trial of the final report/charge-sheet.

11. The petitioners/accused have been reportedly in custody in the case FIR in

question since last about seven months. The Investigating Officer of the

case appeared at the final hearing of the instant bail petitions and submitted

that a preliminary charge sheet is going to be produced against nine

accused persons in the case FIR including the present petitioners which is

complete in all respects. The Investigating Officer has furnished a copy of

the same for perusal of the Court. It is, however, needful to mention that

the charge-sheet/preliminary final report inter alia reveals that further

investigation in the case FIR is underway.

12. The Court of learned Principal Sessions Judge, Leh has already vide his

order dated 04.11.2025 granted bail in favour of some of the co-accused

under similar allegations while denying the bail to the present petitioners.

13. The petitioners/accused have not been so far shown involvement in any

offence carrying the punishment of death or imprisonment for life in

alternative which offences attract the bar in terms of provisions of Section

480(1)(i) BNS. The petitioners/accused are not alleged to have committed

the offence of murder or culpable homicide not amounting to murder

punishable under Sections 103 and 105 BNS respectively.

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

18 Bail App Nos. 316 & 320/2025

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.

15. 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 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.

16. 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

19 Bail App Nos. 316 & 320/2025

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.

17. 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.

18. 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;

viii. The court at this stage is not conducting a preliminary trial but only

seeking whether there is a case to go for trial;

ix. 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.

x. The facts and circumstances of the case play a predominant role.

20 Bail App Nos. 316 & 320/2025

19. The Honb’ble Apex Court in Gur Bakash Singh Sibbia Vs. State of

Punjab, AIR 1980 SC 1632 referred to the following extract 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

yeild 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.

20. It has been laid down by the Hon’ble Supreme Court in Sanjay Chandra

vs. Central Bureau of Investigation AIR 20012 SC830 at Para 14 of its

Judgment as under:-

14) 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, 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

21 Bail App Nos. 316 & 320/2025

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."

21. 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.

3. While so introspecting, among the factors that need to be

considered is whether the accused was arrested during

investigations when that person perhaps has the best

opportunity to tamper with the evidence or influence

witnesses. If the investigating officer does not find it

necessary to arrest an accused person during

investigations, a strong case should be made out for

placing that person in judicial custody after a charge-sheet

is filed. Similarly, it is important to ascertain whether the

accused was participating in the investigations to the

satisfaction of the investigating officer and was not

absconding or not appearing when required by the

investigating officer. Surely, if an accused is not hiding

from the investigating officer or is hiding due to some

genuine and expressed fear of being victimized, it would

be a factor that a judge would need to consider in an

appropriate case. It is also necessary for the judge to

consider whether the accused is a first time offender or has

been accused of other offences and if so, the nature of

such offences and his or her general conduct. The poverty

or the deemed indigent status of an accused is also an

extremely important factor and even Parliament has taken

notice of it by incorporating an Explanation to Section 436

of the Code of Criminal Procedure, 1973. An equally soft

approach to incarceration has been taken by Parliament by

inserting Section 436A in the Code of Criminal Procedure

1973."

22 Bail App Nos. 316 & 320/2025

22. 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.

23. The apprehensions of the respondents can be taken care of by imposing

reasonable terms and conditions to their enlargement.

24. For the foregoing discussion, the applications are allowed and the

petitioners/accused namely Smanla Dorje Nurboo, S/o Sh. Tsering Dorge,

R/o Likir, Leh and Deldan Namgail, S/o Sh. Lobzang Rinchen, R/o Kubet,

Nubra are admitted to bail in case FIR No. 144/2025 of Police Station, Leh

for the offences under Sections 3(5), 49, 50, 51, 52, 53, 54, 55, 57, 61(2) of

Bhartiya Nyaya Sanhita, 2023 r/w 109, 115(2), 117(2), 118(1), 118(2),

121(1), 121(2), 125, 132, 135, 152, 189(2), 189(3), 189(4), 189(5), 190,

191(2) 191(3), 192, 195, 238(b), 303(2), 309(4), 309(6), 324(2), 324(3),

324(4), 324(5), 324(6), 326(e), 326(f), 326(g) & 332(b) of Bhartiya Nyaya

Sanhita, 2023, 3(1).4 of Prevention of Damage to Public Property Act,

1984, And 25(1AB) of the Arms Act, 1959 only, subject to their furnishing

23 Bail App Nos. 316 & 320/2025

surety & personal bonds in the sum of ₹1,00,000/-each to the satisfaction of

the learned trial Court and the Superintendent of the Jail concerned,

respectively, for assuring the fulfillment of the following conditions.

i). That the petitioners/accused shall cooperate with the Investigating

Ageny during the course of further investigation in the case FIR

reported to be underway.

ii). That the petitioners/accused shall remain punctual at the proceedings of

the trial of the case unless their personal appearance for any date of

hearing is exempted by the learned trial Court on justified reasons.

iii). The petitioners/accused shall not, directly or indirectly, make any

inducement, threat, or promise to any of the prosecution witnesses so as

to dissuade them from making true account of the case before the trial

court.

iv) The petitioners/accused shall not repeat the commission of any crime.

v). The petitioners/accused shall not leave the territory of India without prior

permission of the learned trial Court as well as the Investigating officer

of the case.

25. The learned trial court shall be fully competent to proceed against the

petitioners/accused in terms of the provisions of Sections 491 and 492 of

the BNSS, in the event of violation of any of the aforesaid bail conditions.

26. It is needful to clarify that nothing stated in this order shall be construed as

any prejudging of or interference with the merits of the case, which shall,

be the subject matter of the trial.

27. Disposed of.

(MOHD YOUSUF WANI )

JUDGE

JAMMU

16.04.2026

Vijay

Whether the order is speaking: Yes

Whether the order is reportable: Yes