Citation : 2023 Latest Caselaw 232 j&K
Judgement Date : 10 February, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
2.
3.
4.
5.
6.
B.A No. 299/2022
CrlM No. 1449/2022
Reserved on:- 21.12.2022
Pronounced on:- 10.02.2023
1. Kaushalya Devi aged 62 years wife of Sh. ....Petitioner(s)
Subash Chander R/o Kori Ladda, Tehsil
Mongri, District Udhampur (A/P lodged
in District Jail Udhampur);
2. Nisha Devi Aged 21 years D/o Sh. Subash
Chander, R/o Kori Ladda, Tehsil Mongri,
District Udhampur (A/P lodged in District
Jail Udhampur);
3. Rafia Devi, Aged 25 years wife of Balwan
Chand R/o Kori Ladda, Tehsil Mongri,
District Udhampur (A/P lodged in District
Jail Udhampur);
Through :- Mr. Imtiaz Hussain Mir, Advocate.
Mr. Abdul Rauf Lone, Advocate.
V/s
1. Union Territory of Jammu & Kashmir ....Respondent(s)
Through Incharge/SHO Police Station
Panchari, District Udhampur;
2. Superintendent District Jail, Udhampur
7.
Through:- Mr. Sumit Bhatia, GA
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
10-- 02 -- 2023
1. Petitioners have invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred as the „Code‟) for grant of bails in their favour in case FIR No. 31/2019 for commission of offences punishable under Sections 302, 458, 147 & 201 RPC registered with Police Station Panchari, (District Udhampur). It is averred, that the petitioners are the permanent residents of UT of J&K and are entitled to the protection of their fundamental rights including right to liberty and freedom; that the petitioners have been wrongly and falsely implicated in a criminal case FIR No. 31/2019 u/ss 302, 458, 147 & 201 RPC for the allegations that they are involved in murder of one Bodh Raj and soon thereafter registration of FIR all the petitioners herein have been arrested and are facing incarceration in jail; that
on completion of investigation in the aforesaid FIR a criminal challan/charge sheet has been presented against the accused persons including the petitioners in the year 2019 which is pending disposal/trial before the Court of Ld. Additional Sessions Judge Udhampur wherein as many as 31 prosecution witnesses have been projected out of which only 14 witnesses have been examined so far and none of the witnesses have stated incriminating against the petitioners while the remaining unexamined witnesses are official witnesses; that since the presentation of challan, as many as 66 hearings so far have taken place and whole of the prosecution witnesses have not been examined till date; petitioners are females and are in custody for the last more than 03 years, petitioners 1 and 2 filed a joint application for grant of bail before the Court of Ld. Additional Sessions Judge Udhampur, after inviting objections and hearing the parties the trial court rejected their bail application vide order dated 23.10.2021 on such grounds and for such reasons which are not legally tenable; that the District Level Service Authority in reference to the decision taken in the Under-Trial Review Committee (UTRC) meeting held on 02.08.2022 issued notice dated 02.08.2022 to various Advocates requiring them to file bail application before the concerned Courts in accordance with the NALSA SOP Release-UTRC @ 75 Campaign launched by Hon‟ble the Chief Justice of India on 16th July 2022, pursuant to which names of the petitioners have been indicated at Serial Nos. 3 to 5 in the notice dated 02.08.2022; that all the petitioners filed three separate bail applications before the Court of Ld. Additional Sessions Judge Udhampur for grant of bail on various grounds primarily on the ground that they are females and as per different judgments passed by the Hon‟ble Apex Court of India as also by the writ Courts, they are entitled to be enlarged on bail; that the Trial Court clubbed all the three bail applications and vide order dated 10.08.2022 rejected the bails of the petitioners on the grounds and reasons which are not legally sustainable; that the Trial Court while rejecting the bail application of petitioner No. 1 has failed to appreciate that she is in advance stage of her life being 62 years of age and is suffering from comorbidities; that similarly, the trial court also did not consider the bail application of petitioner No. 2 that she is of marriageable age and has already slipped in depression, which is a disease that devastates a person without any physical ailment; that the bail application of petitioner No. 3 too has not been considered by the trial court that she is a young married lady and is suffering from various health disorders; that there is remotest possibility
of conviction of the petitioners in the aforesaid criminal challan as there is no evidence much less a cogent evidence which warrants involvement in the aforesaid criminal case, however, in the event the petitioners are held guilty at the end of the trial, they being females would be readily available to serve the sentence; that it is the specific and categoric case of the petitioners before the trial court that no purpose would be served if the petitioners remain in continuous detention as it is settled position of law, that every accused is innocent till held guilty and being women, they have been categorized for an inbuilt concession of bail as provided under Section 437 of Cr.P.C, wherein, under three circumstances as depicted in the proviso, (i) a person below 16 years of age, (ii) a woman and (iii) a person who is sick or infirm can be granted bail in non-bailable offences; that the petitioners are females and therefore provision of Section 437 proviso fully applies to them and they can be enlarged on bails; that the basic rule is that "bail is rule" and "Jail is exception", the detention of the petitioners pending completion of trial could cause great hardship to them and would be quite contrary to concept of personal liberty enshrined in the Constitution of India that any person should not punished unless held guilty; that the petitioners have no criminal history as they have never been involved in any criminal case, they undertake to abide by all terms and conditions imposed by the Court if granted bails, and moreso they will not jump over the bail, prayer has been made for grant of bail.
2. Respondents per contra, by filing objections have opposed the bail on the grounds, that the offences indicted against the petitioners under Sections 302/ 458/147/210 RPC are grave and heinous, chargesheet has been produced before the Court of Chief Judicial Magistrate Udhampur on 31.07.2019, there is every possibility that if enlarged on bail petitioners/accused would tamper the prosecution evidence and try to influence the witnesses, the offences indicted against the accused are against the interest of general public and society, therefore, petitioners do not deserve any concession of bail.
3. Learned counsel for the petitioners while reiterating the averments of bail application, have sought their enlargement on bails by projecting arguments, that for the last more than three (3) years petitioners along with co-accused are languishing in jail for their no fault, out of total 31 prosecution witnesses 15 prosecution witnesses have been examined so far and the eye witnesses examined so far have not put-forth any incriminating evidence against the petitioners, petitioners being females accused have inbuilt concession of bail in
terms of proviso of section 437 Cr.P.C, which provides that bail can be granted in a non-bailable offences on three circumstances viz (i) a person below 16 years of age (ii) a woman and (iii) sick or infirm person, petitioners are covered under clause 2 of proviso to Section 437 Cr.P.C and being woman have every right to be released on bail even if the court comes to the conclusion that strong prima facie case is made out against them still the court can exercise its discretion and petitioners being females can be enlarged on bail with certain conditions. It is argued, that the basic rule is "bail and not jail", petitioners though indicted for commission of offences which are punishable with death penalty or life imprisonment, in view of the proviso of Section 437 Cr.P.C they can be enlarged on bail. To support his arguments, learned counsel for the petitioners have relied upon the rulings reported in (i) judgment passed by High Court of Karnataka in case titled Kavitha V. State of Karnataka Crl.P.No. 2509 of 2019 decided on 05.08.2019, (ii) Satender Kumar Antil Vs. CBI 2022 SCC Online SC 825, (iii) State of Rajasthan Vs. Balchand, (1977) 4 SCC 308, & (iv) Nethra vs State of Karnataka [(Criminal Petition No. 2306 of 2022) decided on 12.05.2022].
4. Mr. Sumit Bhaita, learned GA for the respondents, per-contra, has strenuously opposed the bail on the grounds, that out of total 31 witnesses, prosecution has examined as many as 15 witnesses and none of them are hostile, PW-2 eye witness namely Munshi Ram has categorically depicted the role of petitioners in committing the murder of deceased Bodh Raj, trial is being conducted speedily as almost for last three years as many as 15 prosecution witnesses have been examined. It is argued, that at the stage of grant or refusal of bail thorough reasons/marshalling of evidence with the point of view of possibility of conviction or otherwise cannot be considered and moreso the credibility, reliability and admissibility of the prosecution witnesses so far examined cannot be looked into for the purpose of consideration of bail application, and even longer period of incarceration is not a ground for grant of bail to the accused. It is moreso argued, that proviso 2 to Section 437 of Cr. P.C. does not lay down an invariable and mandatory provision of law that in all cases of heinous nature like the one in hand where the petitioners have been indicted for murder, the female accused have to a mandatorily granted bail, the court has to exercise the discretion in a judicial manner and not in arbitrary manner, releasing of petitioners on bail at this stage would adversely affect the prosecution case as the remaining witnesses who are still unexamined there is
every possibility that the petitioners may influence and win over the prosecution witnesses thereby jeopardizing the case of prosecution. It is vehemently argued, that the proviso 2 (1) of section 437 of Cr.P.C. is an enabling provision which confers jurisdiction upon the Court which has to be exercised in a judicial manner, the said proviso does not specifically lay down a mandatory provision of law that all the persons covered by the said proviso should necessarily be released on bail, the provision of bail to women, sick and old aged persons is not mandatory but discretionary, the gravity and seriousness of the offence has to be primarily considered, the personal liberty of a person can be curtailed under the Code of Criminal Procedure which is one of the procedural laws and unless special circumstances are not projected, the benefit of proviso 2 to Section 437 (1) Cr.P.C. cannot be availed by the accused. To support his arguments, learned GA has relied upon the Judgments report in (i) (2001) 4 Supreme Court Cases 280 (Prahlad Singh Bhati Vs. NCT. Delhi and Another), (ii) 1992 CriLJ 3634 (Chandrawat (In Jail) Vs. State of UP, decided by Allahabad High Court on 01.04.1992) & (iii) Ahalya @ Kalyani Vs. State of Odisha, (BLAPL No. 5200 of 2019 decided by High Court of Orissa, Cuttack on 26.08.2019).
5. I have heard learned Counsel for petitioners and learned GA for respondents, bestowed my thoughtful consideration to the material aspects involved in the case, meticulously scanned the ratios of the judgments relied by Ld. Counsel for the parties and gone through the relevant law on the subject matter.
6. Hon‟ble Supreme Court in a case law titled Kalyan Chandra Sarkar V. Rajesh Rajan @ Pappu Yadav and Anr. (2004) 7 SCC 528 while succinctly laying down the broader principles for grant or refusal of bail in non-bailable offence and while observing that the detailed examination and elaborate documentation of merit of the case need not be undertaken, in para 11 of the judgment observed as under:-
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
c. Prima facie satisfaction of the court in support of the charge"
7. Principles of law enunciated in Kalyan Chandra Sarkar's case (supra) squarely apply to the facts of the case in hand. In 2021 Legal Eagle 407 [Sunny Choudhary Versus State of J&K] a Coordinate Bench of this High Court while rejecting the bail to the accused for commission of offences u/ss 302/460/148/149/427/120-B/109 RPC and observing that at the stage of granting bail during trial detailed examination of evidence and merits of the case are not to be considered and moreso the court cannot go into the question of credibility and reliability of the witnesses, in paras 10 &11 of the judgment held as under:-
10. The law is well settled that the court should refrain from appreciating the evidence, while considering the bail application. Further the Apex Court in Satish Jaggi v. State of Chhattisgarh, reported in (2007) 11 SCC 195 has held as under:
"12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.
13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain."
11. There are serious allegations against the petitioner of hatching a conspiracy for committing murder and arranging the killers in pursuance of the said conspiracy, At this stage, it cannot be determined that the allegations are either false or not true as number of other witnesses are yet to be examined and there is every chance that if the petitioner is enlarged on bail, he may influence the witnesses as the petitioner is facing trial for commission of offence, which is punishable with death or imprisonment to life. So far as delay in the conclusion of trial is concerned, perusal of record shows that the trial court has conducted
the effective proceedings and even to secure the presence of the complainant-PW-1, trial court has resorted to even coercive process. It requires to be noted that for the last two years, the courts have been functioning in restricted node and obviously some delay has caused due to Covid-19 pandemic in conducting the trial of the case.
In 2009 (II) SLJ 681 (Gandarb Singh V/s State), Hon‟ble J&K High Court while rejecting bail to the accused indicted for commission of offence of murder u/s 302 RPC, in para 7,8,9 & 10 held as under:-
"(7) In order to decide this bail application, it is important to look into the evidence, which has come on record. Grant of bail at this stage depends upon the involvement of the accused in the same offences, which are reflected from the statement of witnesses, who have been examined. It is also important that any observation made which appreciating the evidence will have direct affect on the outcome of the trial. However, it is not in dispute that court has power to grant bail during the pendency of the trial. The only question which requires to be examined by this court at this stage is that what is the evidence which has come against the accused (8) After scanning through the evidence which has come on record more particularly the statement of Sanjeev Kumar, I do not find at this stage that the petitioner is entitled to bail.
(9) The accused can be granted bail only, if evidence, which come on record, overwhelmingly points towards non-involvement of the accused in the case. Where there are two views possible, the court must ordinarily refrain from exercising its powers under Section 498 Cr.pc while granting the bail in such cases.
(10) Coming to the case in hand, I do not find the accused entitled to bail". Ratio of judgment (supra) makes the legal position abundantly clear, that bail can be granted to an accused indicted for commission of offence of murder u/s 302 RPC only if the evidence on record does not point towards the involvement of accused in the case."
Ratios of the judgments (Supra) lay down an invariable rule of law, "that when the trial of a case is in progress, gravity and seriousness of offence is relevant factor, and when number of material witnesses are yet to be examined and if any finding or view is made by the court while taking into account statements of witnesses or for that matter any finding on their credibility and evidentiary value at the stage of granting or refusing bail it would seriously prejudice the prosecution case, moreso, bail can be granted to the accused only if evidence on record overwhelmingly points towards non involvement of the accused in the case, and if two views are possible, the court must ordinarily refrain from granting bail to the accused".
8. The gravamen of the prosecution allegations against the petitioners are, that they in furtherance of their criminal common intention on 30.05.2019 at 10 pm alongwith co-accused entered in the house of one Bodh Raj situated at Shali Katari, the accused were equipped with axe and sticks and assaulted deceased Bodh Raj thereby committed his murder, whereafter, the dead body was lifted from the spot and thrown from a hill in order to destroy the
evidence, while the bed sheet which was used for carrying the dead body was also burnt, whereafter, the dead body of the deceased was found in Khatru Forest Gouri Mitti Upper Kalsote area at an isolated place in Panchari area of District Udhampur. Section 439 Cr.P.C vests no blanket power to the court to grant bail. Though discretion under Section is unfettered but it has to be exercised judicially. The overriding considerations in granting bail which are common both in Sections 437 (1) and 439 (1), Cr.P.C are the nature and gravity of the circumstances in which the offences has been committed, the position and status of the accused with reference to victim and the witnesses, likelihood of accused fleeing from justice and tampering with witnesses etc. No list of exhaustive grounds can be set out and facts differ from case to case. Bail is at the most a matter of procedural privilege and not an accrued right until it is granted. The law is the sentinel of rights of society and of the individual. The cause of public justice has to be zealously guarded as the rights of criminal/defendant. Interest of society and also cause of public justice has also to be kept in mind while granting or refusing bail. When the offence is of such nature which affects the vital interest of society and has adverse affect on social and family life, in such matter the issue is to be considered with a reference to them. One of the considerations which has to be weighed for granting or refusing bail is a nature of the offence and its heinousness. Hence the circumstances which are peculiar to the accused and larger interest of the public and cause of public justice have to be considered. The purpose of refusing bail to accused allegedly committing a heinous offence is, that their roaming at large and their remaining outside, may have a deleterious effect on the minds of general public and thwart the courts of justice.
9. Perusal of statements of two eye witnesses of the case namely PW-2 Munshi Ram and PW-3 Badri Nath reveal that none of them are hostile. PW-2 Munshi Ram in his deposition before the trial court has narrated the sequence of events and the role attributed to the petitioners and other co- accused persons by deposing that accused Baldev with axe assaulted deceased Bodh Raj, accused Sheshpaul with the same axe inflicted injuries upon Bodh Raj in his stomach, accused Koushalya Devi with axe inflicted blow upon deceased while accused Nisha Devi and Raifa Devi alongwith danda‟s/sticks assaulted the deceased. In the case laws supra of "Sunny Choudhary [2021 Legal Eagle 40], & Satish Jaggi [(2007) 11 SCC 195]"
the legal position is no longer res-integra that at the time of disposal of bail application there should not be observations and findings on the credibility and evidentiary value of the witnesses, the court can only go to the question of prima facie case established for grant of bail and cannot go into the question of credibility and reliability of the witnesses of the prosecution, moreso the gravity and seriousness of offence is a relevant consideration for purpose of grant or refusal of bail. In Gandarb Singh's case supra, [(2009
(ii) SLJ 681] the J&K High Court has categorically held, that in case of offence of murder u/s 302 RPC the bail can be granted only to the accused if the evidence which come on record overwhelmingly points towards non- involvement of the accused in the case.
10. In 2001 (4) Supreme Court Cases 280 titled as Prahlad Singh Bhati Vs. NCT, Delhi and Another) relied by learned counsel for the respondents, whereby Hon‟ble Apex Court refused bail to the accused indicted for commission of offence Under Section 302 IPC on the ground that the persons specified in first proviso Sub-Section (1) of Section 437 should not necessarily be released on bail if it is reasonably appear that they are guilty of offence punishable with death or imprisonment for life. "In 1992 CriLJ 3634 (Chandrawati (in Jail) Vs. State of UP," relied by learned counsel for respondents High Court of Allahabad rejected bail to old lady of 70 years of age indicted for commission of offence punishable under Section 302/201, IPC on the ground that a provision of bail to women sick or old aged person is not mandatory and it is discretionary. "In Bail Application No. 5200 of 2019 (Ahalyas @ Kalyani Vs. State of Odisha)," further relied by learned counsel for respondents, High Court of Orissa has rejected the bail to women accused on the ground of nature and gravity of accusation and likelihood of tampering with the evidence. Ratio‟s of the Judgments (supra) relied learned GA for respondents laid down an invariable principle of law that the proviso to sub-Section (1) Section 437 of Cr.P.C is not mandatory but directory, and in grave offences of murder where the punishment is death penalty or imprisonment for life, grant of bail would depend upon facts and circumstances of each case, and cannot be an invariable/mandatory rule of law that in all cases of murder where the ladies/females are accused, the bail should always be granted.
11. In Kavitha Vs. State of Karnataka (Crl.P. No 2509 of 2019) relied by learned counsel for the petitioners, Karnataka High Court held, that even if
a strong prima facie case is made out against a woman, still the court can exercise its discretion to enlarge the woman accused on bail with conditions. In Satender Kumar Antil Vs. CBI [(2022) SCC Online SC
825)] relied by learned counsel for petitioner, Hon‟ble Supreme Court held, that where the accused is under the age of 16 years, sick or infirm or a woman, the court is expected to show some sensitivity. "In State of Rajasthan Vs. Balchand, (1977) 4 SCC 308" further relied by learned counsel for petitioners, Hon‟ble Apex Court of India held, that the basic rule may perhaps be tersely put a bail, not a jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice bail should be refused. In "Nethra Vs. State of Karnataka (Criminal Petition No. 2306/2022) decided by Karnataka High Court," bail was granted to the accused/petitioner who was woman and indicted for commission of offence u/ss 302,120-B, 34 IPC on the ground that no overt act was alleged against the petitioner.
12. Petitioners/accused are involved in commission of offences under Sections 302/458/147 & 201 RPC of Police Station Panchari for commission of murder of one Bodh Raj. Offence under Section 302 RPC is punishable with death penalty or imprisonment for life. Charges have been framed against the accused/petitioners and other co-accused by the trial court of ld. Additional Sessions Judge Udhampur and till 10.08.2022 as many as 15 witnesses out of 31 have been examined. Two eye witnesses examined by the prosecution namely PW-2 namely Munishi Ram and PW-3 namely Badri Nath are not hostile towards the prosecution and have even not ruled out the complicity of petitioners/accused in the crime. The legal position is manifestly clear that bail can be granted to accused indicted for commission of murder under Section 302 RPC only if the evidence on record does not point towards involvement of accused in the case. There are serious allegations against the petitioners in other co-accused for committing murder of one Bodh Raj. At the stage it cannot be determined that the allegations are false or not true as number of other material witnesses are yet to be examined. There is every possibility that if the petitioners are enlarged on bail they may influence the witnesses as they are facing trial for commission of heinous offence of murder which is punishable with the death penalty or imprisonment for life. Law is no longer res-integra that gravity and seriousness of offence is a relevant consideration for grant or
refusal of bail. In the case in hand, the trail is a progress and if any finding or view is expressed by this Court at this stage regarding the credibility evidentiary value of the witnesses examined so far, it would seriously prejudice the case of prosecution. Even the law is well settled that where two views are possible, the view which refrains from granting bail to the accused must be followed. Accused/petitioners are lying in custody since their arrest on 02.06.2019 & 01.07.2019 and for the last three years they are lying in detention in District Jail, Udampur. Longer period of incarceration is not even a ground for enlargement of accused on bail. Arguments propounded by learned counsel for the petitioners that petitioners/accused are females and have every right to release on bail, in view of the proviso to 437 (1) Cr.P.C and law discussed above, are legally untenable, repelled, discarded and rejected. None of the case laws relied by learned counsel for the petitioners laid down and invariable/mandatory rule of law that bail has always to be granted to females accused indicted in grave offence of murder. In the case laws referred to me by learned GA for respondents, law is well settled that it is the Judicial discretion of the Court to grant bail and the primary condition is that the gravity and seriousness of offence has to be considered by the Court and its impact upon the society at large.
13. In view of the aforesaid discussion petitioners/accused have miserably failed in carving out a strong case for bails in their favour. I do not find that the petitioners/accused at this stage are entitled to bail, the bail application being pre-matured is, accordingly, disallowed, rejected and dismissed. Trial court to make every endeavor to expedite the trial.
14. Disposed of alongwith connected CM(s), if any.
(Mohan Lal) Judge Jammu 10.02.2023 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No
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