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The High Court of Jammu & Kashmir and Ladakh at Jammu has granted interim bail to a former Inspector of the Jammu and Kashmir Police, who is an undertrial in custody, pending the final adjudication of his main bail petition.

The Court granted the relief considering that the petitioner's custody was having adverse effects on two lives, namely his 82-year-old ailing father and his 12-year-old minor son, who is dependent upon his grandfather for day-to-day care. The Court held that it could deny interim bail in favour of the petitioner only by reserving the presumption of innocence till proven guilty, but that luxury was not legally available to any court.

The Court was hearing an application seeking ad interim bail in a pending main bail petition filed under Section 439 of the Code of Criminal Procedure. The petitioner sought interim bail citing the critical health condition of his aged father, who is also looking after the petitioner's minor son, because of the petitioner's confinement in custody. The main bail application had suffered rejection before the trial court, leading to the present petition.

The matter was heard by Justice Rahul Bharti, who observed,

“This Court can deny interim bail in favour of the petitioner only by reserving the presumption of innocence till proven guilty viz-a-viz the petitioner but that luxury is not legally available to any court including this Court.”

Background

The petitioner is facing trial in a case originally registered as FIR at Police Station Pacca Danga, which was later taken over by the Central Bureau of Investigation. The original police report was for offences under Sections 498-A and 304-B of the Ranbir Penal Code read with Section 30 of the Arms Act, 1959.

The trial court of the Additional Sessions Judge, Jammu, in its charge-framing order framed a charge for the commission of an offence under Section 302 of the Ranbir Penal Code as well, read with offences under Sections 304-B and 498-A of the Ranbir Penal Code and Section 27(3) of the Arms Act, 1959.

The case relates to the death of Neha Kumari on 26.02.2018 due to a gunshot involving the service weapon of the petitioner, who at the relevant time was serving as an Inspector in the Jammu and Kashmir Police and was deputed to the Chief Minister's Security.

The petitioner submitted that there were 88 prosecution witnesses cited, out of which 81 had been examined. The petitioner was admitted to interim bail by the trial court periodically for contingencies projected before it, with the last interim bail granted for a period of one month. Thereafter, the petitioner's main bail application instituted came to suffer rejection, which led the petitioner to file the present bail petition.

It was further submitted that the petitioner was waiting for the conclusion of the prosecution evidence to establish his innocence, but for the purposes of interim bail, he cited the critical health condition of his ailing aged father, who is 82 years of age and is looking after the petitioner's minor son because of the petitioner's confinement in custody.

Court's Observation

The Court observed that it could not escape taking notice of the fact that even the trial court had taken due notice of the petitioner's father being in his advanced age and having a medical condition, and that the petitioner's son, who was 8 years old at the relevant point of time and now 12 years old, was dependent for his day-to-day care upon none else than his grandfather.

The Court held,

“Thus, the petitioner's state of custody, as an under trial is having its adverse effects on two lives, that is of the petitioner's father as well as his son, one is in advanced stage of life and the other one is in very initial age of his life and both of them are directly related to the petitioner's concern and custody.”

The Court further observed that it was inclined to grant indulgence for the sake of granting interim bail in favour of the petitioner. The Court held,

“This Court is, thus, inclined to grant indulgence for the sake of granting interim bail in favour of the petitioner and, therefore, grants him interim bail till final adjudication of main bail petition subject to terms and conditions that the petitioner shall not avoid/default in appearance on any date of hearing in the case before the trial court and subject to furnishing of bond, personal as well as surety, to the satisfaction of the court of learned Additional Sessions Judge, Jammu as well as to the Superintendent District Jail, Amphalla.”

Accordingly, the Court granted interim bail till the final adjudication of the main bail petition, considering the adverse effects of his custody on his ailing father and minor son, and observing that the presumption of innocence could not deprive the Court of the discretion to grant interim relief. The application for interim bail was accordingly disposed of, and the main bail application was directed to be listed on 30.11.2026.

The interim bail was subject to the condition that the petitioner shall not default in appearance before the trial court and furnish personal and surety bonds to the satisfaction of the designated authorities.

The petitioner was represented by Senior Advocate Aseem Kumar Sawhney with Advocates Harsh Singh, M. Kashif Malik, Aman Sharma and Tehseena Bukhari, while the respondent was represented by Advocate Nazia Fazal appearing vice Senior Advocate Monika Kohli.



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