Romesh Chander vs Union Territory Of Jammu & Kashmir ...
2022 Latest Caselaw 740 j&K

                                                                 Sr. No. 263



           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU
                                 Bail App No. 347/2021
                                 CrlM No. 2023/2021
                                 CrlM No. 611/2022

                                             Reserved on   : 26.04.2022
                                             Pronounced on : 09-05-2022

  1. Romesh Chander S/O Faqir Chand R/O Sarote Tehsil & District Jammu;
  2. Sham Lal S/O Faqir Chand R/O Sarote Tehsil & District Jammu.
                                                           .....Petitioner(s)
                Through: Mr. Muzaffar Iqbal Khan, Advocate

                                      V/s
  1. Union Territory of Jammu & Kashmir through Comissioner Secretary
     Home Department Civil Serteriate Srinagar/Jammu;
  2. Superintendent District Jail Jammu;
  3. Station House Officer Police Station Gharota,    .....Respondent(s)

Through :- Mr. Amit Gupta, AAG

Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

ORDE R 09.05.2022

1. Petitioners/accused in terms of section 439 Cr.pc have sought the indulgence of this court for their enlargement on bail in FIR No. 11/2021 of Police Station Gharota Jammu for commission of offence u/s 304-B, IPC. It is averred, that the petitioners are citizens of India and permanent residents of village Sarote in U.T. of J&K , and as presently are lodged in District Jail Jammu, as such, they are entitled to the protection of fundamental rights guaranteed under Article 19 & 21 of the Constitution of India; that applicant No.2 is the real brother of applicant No.1 is also married and out of which three issues were born, the eldest boy is 11 years old and two daughters ageing between 9 to 10 years; that on 14-01-2018 for reasons not known to anyone, wife of applicant No.1 namely Sushma Devi committed suicide by hanging herself with ceiling fan, police concerned initiated an inquest proceedings immediately and conducted the postmortem, the inquest proceeding continued until 06-02-2021 when FIR for commission of offence u/s 304-B, IPC was lodged against both the applicants who are real brothers and one sister namely Mulkhi Devi, and consequently, all three were implicated upon the statement of mother of the deceased; that the inquest proceedings were initiated immediately after

deceased Sushma Devi committed suicide on 14-01-2018, the prosecution witness Vidya Devi give her statement u/s 175 Cr.pc after lapse of three (3) years and falsely implicated all these accused persons who have committed no offence at all; that Mulkhi Devi was admitted to bail by the Ld. Court of Sub-Judge Jammu whereas both these applicants were taken into custody immediately on 06-02-2021 alongwith their sister for alleged commission of offence u/s 304-B IPC and after investigation chargesheet was presented before the Ld. Trial Court on 09-03-2021 which still at its initial stage and charges have not yet been framed against both these accused persons; that both the accused persons moved two separate application for their bail before Ld. Trial Court of Additional Sessions Judge Jammu and the trial court without appreciating the factual aspect of the matter and without looking into the particular facts that the inquest proceedings continued for about three years and the prosecution witnesses who is heavily relied upon by the investigating agencies kept mum for such a long period until 06-02-2021 when she made a statement alleging therein that her daughter was harassed and met with cruelty for demanding more dowry which led her to the commission of suicide on 14-01-2018; that the Ld. Trial Court has also not considered another vital fact which speaks of humanity in it's profundity when applicant No.1 submitted through his counsel that his two minor children Namely Aryan Bhagat age about 5 years and Varun Kumar age about 4 years are left with no support to fall back upon as they lost their mother at the first instance; that applicant No.1 Ramesh Chander was subjected to polygraph test also and nothing incriminating was reported by the experts who conducted the polygraph test; that the minors have lost their mother and are left with no support to fall back, these applicants are required to admitted to bails so that they may take of their minor children who are suffering for no fault of theirs; that applicants are ready to furnish the personal and surety bonds to the satisfaction of this court as and when directed by this court and they are also ready to abide by all the terms and conditions imposed by the court if granted bail.

2. Respondents have opposed the bail on the grounds, that accused persons alongwith co-accused Makhni/Mulkhi Devi (nanand of deceased Sushma Devi) use to torture, taunt and beat the deceased for dowry viz; demand

for vehicle, washing machine & AC etc; father of deceased being a poor person could not meet the demand of the accused, thereby, on 14-01-2018 the deceased Sushma Devi (W/O A-1 Romesh Chander) hanged herself with a rope and ended her life; inquest proceedings initiated vide GD No. 08 dated 14-01-2018 culminated in registration of FIR on 06-02-2021 against accused persons for commission of offence u/s 304-B, IPC; accused cannot be admitted to bail as they are involved in heinous and non-bailable offences and if enlarged on bail they may temper the evidence and harass the family of deceased; offence is against society at large, principle of criminal justice system has to be applied justly and in the facts and circumstances of the case accused are not entitled to any relief. Prayer has been made for rejection of the bail.

3. Ld. Counsel for accused has vehemently sought release of accused on bail by projecting arguments, that for the last more than one (1) year accused are languishing in District Jail Jammu, "bail is a rule" and "refusal is an exception" personal liberty of accused is of paramount importance as they are presumed to be innocent till guilt is proved against them, keeping of accused in incarceration in the jail would amount to inflicting pre-trial punishment which is against the basic principle of criminal jurisprudence; accused are residents of village Sarote Tehsil & District Jammu, have deep roots in the society and therefore do not possess golden wings to flee from justice. It is argued, that the material prosecution witnesses are the close relatives of the deceased, and therefore, there is no question of them to be win over by the accused.

4. Ld. AAG has strenuously opposed the bail by articulating arguments, that offence indicted against the accused is serious & heinous punishable with maximum imprisonment upto life which is against the society at large as the victim has been put to cruelty by the accused for demand of dowry who was left with no option but to commit suicide, there is likelihood of accused fleeing from justice if enlarged on bail and moreso there is every possibility that the accused on bail will influence the prosecution witnesses and spoil the case of prosecution.

5. Heard Ld. Counsel for the accused and Ld. AAG for respondents. I have perused the record carefully. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of

punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by the ld. Counsel for the accused in the bail application is required to be examined generally. Petitioner/accused have been arrested on 26-03-2021 after 3 years of occurrence of 14-01- 2018 for commission of offence U/S 304-B IPC of Police Station Gharota on the statement of mother of the deceased namely Vidya Devi. As per the averments of the bail petition, after the completion of investigation, charge sheet has been presented in the trial court on 09-03-2021 and yet charges have not been framed against the accused, however, the trial court of Ld. Addl. Session Judge Jammu rejected the bail applications of accused vide its order dated 12-10-2021. It is apt to mention here, that A-2 Sham Lal has three dependents viz; 2 minor daughters and 1 minor son, and there is none to look after them, and A-2 is the only earning hand of the family, but is lying in custody for no fault of his as he was living separately having no concern with the family of deceased.

In a case reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors), Hon'ble Mr. Justice Sunil Hali (His Lordships the then was Hon'ble Judge of the High Court) while granting bail to the accused charged for commission of offence u/s 306/498-A RPC, and while discussing the principles of "prima-facie case", "question of influencing the prosecution witnesses"& "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be

detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

Ratio of the judgment (Supra) makes the legal position abundantly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses viz; prosecutrix and her parents cannot be expected to be win over by the accused. In another case law reported in 2016(2)J.K.J 702, J&K High Court, [Arjun Katal and Ors. versus State of J&K & Ors.] Hon'ble J&K High Court while granting bail to accused for offences u/ss 498A,304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17,25 & 26 of the judgment held as under:-

B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306-Dowry death-Grant of bail- Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother-in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed.

17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother- in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.

25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.

26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015.

Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law.

Ratio of judgment (Supra) also makes the legal proposition abundantly clear, that refusing bail is nothing but punishing the accused, whether the accused is responsible for the death of the deceased has to be verified during trial and material witnesses viz; family members of deceased cannot be win over.

Ratios of the judgments of "Jagdish Kumar's Case" & "Arjun Katal's Case", (Supra) make it manifestly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial & material witnesses viz; family members of the deceased cannot be win over. Applying the ratios of judgments (Supra) to the facts of the case in hand, it is apt to mention here, that petitioners/accused since their arrest on 26-03-2021 are lying in detention in District Jail Jammu for the last more than 1 year. Petitioners/accused have deep roots in the society and their presence can be secured by directing them to furnish sufficient security. As per the ratios of the judgments (Supra), the legal position is no longer res-integra that "every accused is presumed to be innocent till his/her guilt is proved", "approach of the court in matter of bail should not be that accused should be detained by way of punishment, but whether his/her presence would be readily available for trial" & "material witnesses viz; family members of the deceased cannot be win over". The powers to grant bail has to be considered in the backdrop of constitutional guarantees contained in Article 21 of Constitution of India which guarantees right to liberty of an individual (Vide Jagir Singh Vs. Jagjit Singh & anr. reported in 2012 (2) JKJ 231 (HC). Every accused has a right to defend his case and by keeping the petitioners/accused in detention, it would defeat their right to defend their case. Petitioners/accused in the case in hand cannot be kept in incarceration for a sufficient & indefinite long time as a matter of punishment. The offence indicted against petitioners/accused does not carry a punishment of death penalty or life imprisonment, but alternative punishment of not less than 7 years which may extend to life imprisonment. The apprehension of the prosecution that petitioners/ accused will abscond can be secured by way of sufficient surety from them. Keeping of petitioners/accused in continuous detention would amount to infringement of their fundamental right of personal life and

liberty and inflicting pre-trial punishment. In view of the aforesaid discussion, as the material prosecution witnesses who are the close family members of the deceased and are not expected to be win over by the accused, at this stage, petitioners/accused have carved out a strong case for bail in their favour. Petitioners/accused are, therefore, admitted to bail in the sum of Rs. 1,00,000/- (Rs. One lac only) before Registrar Judicial of this Court with the direction to furnish personal recognizance of the like amount before Superintendent District Jail Ambphalla Jammu. However, before parting, the following conditions are imposed upon the accused:-

(i) that the petitioners/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before this court;

(ii) that the petitioners/accused shall appear before the trial court on each and every date of hearing except for special circumstances beyond his control in which case they shall seek exemption from the trial court;

(iii) that in case prosecution collects any material during the period the accused are on bail that they have influenced the witnesses or tried to intimidate them, the prosecution would be well within its right to move an application before this court for cancellation of their bail.

6. Disposed of accordingly.

(MOHAN LAL) JUDGE Jammu:

09.05.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No