- (1.) THROUGH this petition pre -arrest bail is sought for petitioners, 22 in number reportedly involved in FIR No. 268 of 2005, registered in Police Station, Budgam under sections 452, 427, 380, 354, 336, 148 and 149 RPC with the allegation that on 1.10.2005 they formed an unlawful assembly and attacked complainants house with a preconceived intention of demolishing it for making a road on life land underneath thereto.
(2.) GROUNDS pleaded in the petition are that petitioners who are otherwise innocent have been falsely implicated even though they have not committed any of fence and that being poor law abiding citizens they deserve protection by way of Anticipatory bail. Police report furnished by the government counsel alongwith his objections reveals that the petitioners alongwith some other village dwellers have been pressing the complainant to demolish his house for making a public way to Baghat Mohallas when they reside. His refusal to do the same ignited a perpetual conflict between petitioners and the complainant, which, at a particular time prompted the authorities to initiate proceeding under section 107/151 Cr.P.C. In addition to that, the whole mailer is subjudice before Munsiff, Budgam who had on 30.9.2005 appointed a commissioner for spot inspection. On his arrival there the accused persons, besides preventing him from inspecting the spot, made an announcement from loudspeaker of the local mosque asking all the inhabitants to assemble for making the road, whereupon some people including the accused/petitioners assembled and attacked complainants house causing damage thereto and indulging in other unlawful activities.
(3.) DURING course of arguments while petitioners counsel have contended that in circumstances of the case the request for bail was well founded in fact and law, the Government counsel has argued that they are guilty of a serious unlawful activity and do not deserve consideration particularly because previously also they had filed a similar application before Sessions Judge at Budgam, who rejected the same. I have heard learned counsel and considered the matter. In view of the circumstances purported to have been collected by concerned police during course of investigation as reported alongwith objections, petitioners appear to be involved in certain offences against properly and public tranquility committed during a some what organized unlawful activity, which, with its given intensity and magnitude almost boarders on lawlessness. On cumulative appraisal of circumstances attending it, the occurrence neither appears to be a momentary reaction lo an instantly developing situation, or sudden provocation or an untoward development, nor does it appear to be attributable to any error of judgment etc. On the contrary, particularly in view of the fact that the petitioners assured presence of people on spot through an announcement on loudspeaker of local mosque for attacking complainants house despite the matter having been subjudice in the competent court of law, petitioners appear to have acted as a band of self righteous persons having no regard for process of law and public order. Having willfully indulged in an organized criminal activity they do not perhaps qualified claim pre -arrest bail, chiefly for the reason that if allowed, the same is likely to encourage repetition of such occurrences and send a very wrong and disappointing signal to the law abiding citizens who are already suffering the agonies of high handedness from all sides. That factor I feel, has to be present to the mind of all courts while exercising power to allow anticipatory bail and recommends reluctance in granting it in the cases like present one. Besides that, instantly since offence under section 380 RPC is also involved, the police may have to affect some recoveries etc, which makes custodial interrogation of accused necessary and taken together with what has been said above, it sufficiently agitates against grant of pre -arrest bail to the accused/petitioners.;