Mere Registration Of FIR Against Accused When He Was On Interim Bail Does Not Amount To Breach Of Bail Conditions: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High has recently clarified that the registration of an FIR against an accused does not constitute a breach of their interim bail conditions, as it is merely a preliminary step in the legal process and does not necessarily indicate criminal activity.

The bench of Justice Sanjay Dhar observed,

"Mere registration of an FIR against the petitioner during the pendency of his bail application when he was on interim bail, cannot amount to violation of the conditions of interim bail. This is so because mere registration of FIR does not mean that the petitioner had indulged in subversive activities or in any offence or any criminal activity thereby violating one of the conditions of bail".

The observations came to be passed while hearing a plea in terms of which the petitioner had challenged an order passed by Sessions Court whereby his application for grant of bail in a case for offences under Section 8/15 of NDPS Act read with Section 207 Motor Vehicles Act had been dismissed.

In the instant matter the petitioner and a co-accused were arrested by the police during a vehicle search, which led to the discovery of 9 kgs of Poppy Straw. While the co-accused was granted bail, the petitioner was released on interim bail with certain conditions, including the condition that they would not engage in any subversive or criminal activities.

However, during the pendency of the bail application, the petitioner was booked under the NDPS Act for offences under Section 8/15. When this information was brought to the attention of the Sessions Judge, the bail application was dismissed on the ground that the petitioner had violated one of the conditions of their interim bail.

The petitioner premised his challenge primarily on the ground that there was no material before the trial court to even remotely suggest that the petitioner had misused the concession of bail. It is further submitted that mere registration of FIR against the petitioner would not offer a ground for cancellation of his bail.

The moot question that fell for adjudication before the bench was as to whether mere registration of an FIR against an accused who has been enlarged on bail would be good enough ground to withdraw the concession of bail granted in his favour.

In order to adjudicate upon the matter Justice Dhar referred to Khajim @ Khajimullah Khan vs. State of Karnataka wherein Karnataka High Court observed merely because of registration of an FIR against an accused, it cannot said that he has committed any offence mentioned therein during the bail period. It has been further held in the said case that until the trial is held and the accused is held guilty, he is said to be innocent.

When the Sessions Court considered the bail application of the petitioner it was incumbent upon the said Court to apply its mind to the material before it and satisfy itself on the basis of the said material as to whether breach of condition committed by the petitioner goes to the root of the case that would thwart the investigation or trial of the case, the court said

Observing that there was no material before the Sessions Judge to show that the petitioner had either misused the concession of bail or that he had tampered with the prosecution witnesses, Justice Dhar pointed that only on the basis of accusations made in the FIR, the Sessions Judge withdrew the concession of bail in a mechanical manner without considering as to whether any supervening circumstances have rendered the fair investigation and trial of the case impossible.

In view of this mechanical approach adopted by the Session Judge the bench set aside the order as being unsustainable in law.

"The interim bail granted to the petitioner by the learned Sessions Judge vide his order dated 03.03.2021 shall stand restored and the learned Sessions Judge shall pass final orders on the bail application of the petitioner in accordance with the law within a period of fifteen days from the date a copy of this order is made available to the said Court", the bench concluded.

Case Title: Janbaz Ahmad Dass Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 92

Counsel For Petitioner:M/S: Tahir Ahmad Bhat & Bhat Shafi, Advocates.

Counsel For Respondent: Mr. Mubashir, Dy. AG.

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