Kala Ram vs Ut Of Jammu And Kashmir
2025 Latest Caselaw 1464 J&K

Jammu & Kashmir High Court

Kala Ram vs Ut Of Jammu And Kashmir on 20 May, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

       HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                        AT JAMMU


Case: Bail Application No. 173/2024


Reserved on :14.05.2025.
Pronounced on : 20.05.2025.

Kala Ram                                             ....Petitioner/Appellant(s)

                   Through :- Ms. Vasudha Sharma Advocate.


         V/s

UT of Jammu and Kashmir

                  Through :-   Ms.Chetna Manhas Advocate vice
                               Mr. Vishal Bharti Dy.AG

CORAM:

HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                  JUDGMENT

1 The petitioner has sought bail in a case arising out of FIR

No.69/2023 for offences under Section 304-B and 313 IPC registered with Police

Station, Ramgarh.

2 The prosecution case, as discernible from the challan, is that on

22.06.2023, an information was received at Police Station, Ramgarh through a

reliable source that a lady namely Jyoti Devi, who had been referred from CHC

Ramgrh to SMGS Hospital Jammu, was brought dead. Her dead body was lying

in her residential house at Redwan. As the death had occurred under suspicious

circumstances, an inquest proceedings under Section 174 CrPC was initiated to

ascertain the actual cause of death of deceased Jyoti Devi. Initially, the inquiry

was entrusted to PSI Ravi Kant.

3 During the course of inquiry, I.O PSI Ravi Kant visited the residence

of deceased Joyti Devi, prepared a site plan of the place of occurrence, took

possession of the dead body, prepared a possession memo and conducted post

mortem examination through Board of Doctors of CHC Ramgarh. During

postmortem, a dead born-baby was separated from the body of deceased. Viscera

samples were obtained for chemical analysis and submitted to FSL Jammu.

Subsequently, statements of witnesses were recorded under Section 175 CrPC.

The investigation was then handed over to PSI Anjum Hussain Shah, who

completed the inquest proceedings and submitted a finding report recommending

the lodging of an FIR. Based on the said findings, cognizance of offences under

Sections 304-B/313 IPC was taken against the petitioner and the

co-accused.

4 As per the statements of parents of the deceased recorded under

Section 164 CrPC, the deceased had allegedly been administered poison by her in-

laws. However, no such evidence was found at the place of occurrence during the

inquest proceedings. Investigation further revealed that the deceased had

consumed poison herself as a result of being subjected to cruelty and harassment

in connection with dowry demands within seven years of her marriage. Based on

the investigation, offences under Sections 304-B and 313 IPC were established

against the petitioner and the co-accused, namely Sat Pal, Parshotam Lal, Lovely

Rani and Darshana Devi. The chargesheet was filed before the trial court on

12.12.2023.

5 It seems that the co-accused of the petitioner were granted bail by the

Court of Additional Sessions Judge, Samba, vide order dated 29.02.2024.

However, the same concession was denied to the petitioner, whose bail

application was rejected by the learned Additional Sessions Judge, Samba, on

29.06.2024. It is pertinent to mention here that the charges for offences under

Section 304-B/313 IPC came to be framed against the petitioner and the

co-accused on 24.01.2024. Four prosecution witnesses have reportedly been

examined so far.

6 The petitioner has sought bail on the grounds that the trial of the case

has progressed and some prosecution witnesses have resiled from their earlier

statements made under Section 164 CrPC. It has been further contended that the

other co-accused reside separately from the deceased and her husband, petitioner

herein, a fact which can be substantiated by the statement of witness Ajay Kumar.

It is submitted that at the time of the incident, neither the petitioner, nor the other

co-accused were present in the residence of the deceased.

7 Learned counsel for the petitioner argues that no prima facie case is

made out against the petitioner and that he has been falsely implicated. The

petitioner has been in custody since his arrest on 16.10.2023. It is contended that

the trial will take its own course and there is no likelihood of the petitioner

absconding or tampering with the evidence. The petitioner is willing to abide by

any condition that may be imposed by this Court. On these grounds, the counsel

prays for grant of bail.

8 Despite availing number of opportunities, learned counsel for the

respondent failed to argue the case or submit written submissions, as such, this

Court was left with no option, but to decide this bail application solely on the

basis of the objections filed by the respondent. It is stated in the objections that the

allegations leveled against the petitioner and the co-accused are of a serious

nature, and any concession of bail would not be in the interest of justice. It is

further stated that as per settled law, bail may be refused where there is a

likelihood of the applicant interfering with witnesses or otherwise obstructing the

process of justice. Accordingly, a prayer is made for dismissal of the bail

application.

9 Heard learned counsel for the parties and perused the case.

10 It appears that after completion of investigation, a chargesheet has

been presented before the trial Court.

11 So far as principles for grant of bail in a non-bailable offence are

concerned, the same are more or less well settled on the basis of judicial

precedents of the Supreme Court and various High Courts. The factors required to

be considered while deciding an application for grant of bail are as follows:

a) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

b) Nature and gravity of the accusation.

c) Severity of the punishment in the event of conviction.

d) Danger of the accused absconding or fleeing if released on bail.

e) Character, behaviour, means, position and standing of the accused.

f) Likelihood of the offence being repeated.

g) Reasonable apprehension of the witnesses being influenced.

h) Danger of justice to be thwarted by grant of bail.

12 The Supreme Court in the case of Anil Sharma Vs. State of

Himachal Pradesh, (1997) 3 Crimes 135 (HP) held as under:-

" in non-bailable cases in which the person is not guilty of an offence punishable with death of imprisonment for life, the court will exercise its discretion in favour of granting bail subject to sub- section (3) of Section 437 if it deems necessary to act under it. It is also observed

that unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial, the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life."

13 In Mansab Ali Vs. Irsan, AIR 2003 SC 707, the Supreme Court has

observed as under:-

"since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general".

14 In Dataram Singh Vs. State of Uttar Pradesh and

another reported in (2018) 3 SCC 22, the Supreme Court held as under:

". A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of, resulting in more and more persons being incarcerated for longer periods. This does not benefit our criminal jurisprudence or society ".

15 There is no doubt that the grant or denial of bail is entirely within the

discretion of the Court considering the case. However, the exercise of judicial

discretion has been circumscribed by a large number of decisions rendered by the

Supreme Court and by every High Court in the country. Yet, there is occasionally

a necessity to introspect whether denying bail to an accused person is the right

course of action based on the facts and circumstances of the case. While so

introspecting, among the factors that need to be considered is whether the accused

was arrested during investigation, when that person perhaps has the best

opportunity to tamper with the evidence or influence witnesses. If the

investigating officer did not find it necessary to arrest an accused person during

investigation, a strong case should be made out for placing that person in judicial

custody after a charge sheet is filed. Similarly, it is important to ascertain whether

the accused was cooperating with the investigation to the satisfaction of

the investigating officer and was not absconding or failing to appear when

required. If the accused is not hiding from the investigating officer or is hiding

due to some genuine and expressed fear of being victimised, this would be a

relevant factor for the judge to consider. It is also necessary to consider whether

the accused is a first-time offender or has been accused of other offences, and if

so, the nature of such offences and the general conduct of the accused. This is

important for several reasons, including the need to uphold the dignity of the

accused and to comply with the requirements of Article 21 of the Constitution of

India.

16. The historical background of the provision for bail has been

elaborately and lucidly explained in a decision delivered in NikeshTarachand

Shah v. Union of India, (2018) 11 SCC 1. In that decision, reference was made

to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it

was observed that bail is not to be withheld as a punishment. Reference was also

made to Emperor v. Hutchinson, 1931 SCC OnLine All 14, wherein it was

observed that grant of bail is the rule and refusal is an exception. However, this

should not be understood to mean that bail must be granted in every case. The

grant or refusal of bail is entirely within the discretion of the judge hearing the

matter. Though that discretion is unfettered, it must be exercised judiciously,

humanely and compassionately. Also, conditions for the grant of bail ought not to

be so stringent as to render the grant of bail illusory.

17 On the basis of above, while deciding the bail application following

factors are relevant for consideration:-

(i) The existence of a prima facie case against the accused.

(ii) The reasonable apprehension of tampering/ influencing with the witnesses.

(iii) The gravity of offence/allegations.

(iv) Likelihood of accused fleeing from justice.

(v) Possibility of repeating the offence.

(vi) The criminal antecedents of the accused.

(vii) The Courts should not go deep into the merits of the case when considering bail.

(viii) Probability of conviction or acquittal is not required at the time of considering bail.

(ix) At this stage a detailed examination of evidence and elaborate documentation of minute details of the case is not required to be done.

(x) Was there any pre-meditation or the incident was at the spur of the moment.

(xi) The impact of release on the society.

(xii) The presence of the accused in Court be secured.

18 It is well settled that each case must be examined on its own factual

matrix. The exercise of discretion in matter of bail must be judicious, informed

and not arbitrary. The fundamental principle of criminal jurisprudence 'Bail is rule

and Jail is exception' must be preserved.

19 In the present case, deceased died on 22.06.2023 and on the same

day, inquest proceedings were initiated. After inquiry, the I.O prayed for

registration of FIR, which was duly registered. On 16.10.2023, the

accused/petitioner herein was arrested and is presently in custody. The

investigation in this case is complete, and a challan has been presented before the

Court of learned Additional Mobile Magistrte, Samba. As the offences alleged to

have been committed by the accused are exclusively triable by the Court of

Sessions, the challan was committed to the Court of learned Principal Sessions

Judge, Samba. Subsequently, the learned Principal Sessions Judge, Samba

transferred the case to the Court of learned Additional Sessions Judge, Samba,

where the present challan is pending trial. After presentation of challan, the

accused persons were charge-sheeted. They denied the charges and claimed trial.

Accordingly, the prosecution was directed to lead evidence in support of its case.

20 It appears that the co-accused persons are the brother-in-law and

sister-in-law of the deceased, whereas the petitioner is the husband of the

deceased. The offences attributed to the accused petitioner are not punishable

with either death or imprisonment for life, therefore, the bar under Section 437

CrPC is not attracted. Two paramount considerations which are required to be

seen while considering the bail application are the likelihood of the accused

fleeing from justice; and the likelihood of tampering with the prosecution

evidence.

21 As laid down by the Supreme Court in Sanjay Chandra vs. Central

Bureau of Investigation, 2012 (1) SCC 40, bail cannot be refused as a measure

of punishment. The emphasis remains that the accused must not abscond and must

attend the trial and cooperate with the investigation.

22 In the present case, from the statements of witnesses recorded so far,

it is revealed that the petitioner was not present at the spot at the time of incident.

It is a well settled proposition of law that every accused is presumed to be

innocent until proven guilty. The approach of the Court in bail matters should not

be punitive but should consider whether presence of the accused can be secured

during trial. The power to grant bail has to be considered in light of the

constitutional guarantees under Article 21 of the Constitution of India which

safeguards the personal liberty of an individual. Reference in this regard can be

made to a judgment rendered in Jagir Singh Vs. Jagjit Singh & anr. reported

in 2012 (2) JKJ 231 (HC). Every accused has a right to defend his case.

Prolonged incarceration defeats that right. In this case, the offence charged against

the petitioner does not carry the death penalty or mandatory life imprisonment,

but provides for a minimum sentence of seven years, extendable to life

imprisonment. The apprehension of the prosecution that the petitioner may

abscond can be addressed by securing sufficient sureties. Keeping the petitioner in

prolonged detention would amount to pre-trial punishment and infringe upon his

fundamental right to liberty.

23 In view of the above discussion, and considering that the key

prosecution witnesses, being immediate relatives of deceased are unlikely to be

influenced by the petitioner, this Court is of considered opinion that a case for

grant of bail is made out. Accordingly, he is admitted to bail upon furnishing a

bail bond in the sum of Rs. 50,000/- and a surety bond in the like amount, to the

satisfaction of the concerned trial court, subject to the following conditions:

(i) The petitioner shall not influence the prosecution witnesses, intimidate them, or dissuade them from deposing before the Court;

(ii) The petitioner shall appear before the trial court on each and every date of hearing, except in cases of special circumstances beyond his control, in which event he shall seek exemption from the trial court;

(iii) He shall not leave territorial jurisdiction of UT of Jammu and Kashmir without prior permission of the trial court.

(iv) In the event the prosecution collects any material during the period the petitioner is on bail, indicating that he has influenced or has attempted to intimidate the witnesses, the prosecution shall be at liberty to approach this Court for cancellation of bail.

The petition is disposed of accordingly.

Observations made in this order are confined to these proceedings only and

the same would not have any bearing upon the merits of the case pending before

the trial Court.

(MOKSHA KHAJURIA KAZMI) JUDGE

Jammu 20.05.2025.

Sanjeev Whether order is reportable:Yes/No