Mahendri W/O Hari Singh vs State Of Rajasthan ...
2023 Latest Caselaw 4616 Raj/2

[2023:RJ-JP:22249]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 10968/2023

Mahendri W/o Hari Singh, R/o Village Sikrora, Police Station
Kumher, District Bharatpur. (At Present Confined In Central Jail
Sewar, District Bharatpur)
                                                                      ----Petitioner
                                         Versus
State of Rajasthan, through PP
                                                                    ----Respondent

For Petitioner(s)              :     Mr. Yogesh Singhal
For Respondent(s)              :     Mr. Riyasat Ali, PP
                                     Mr. A.K. Gupta, Sr. Advocate assisted
                                     with Mr. Gaurav Sharma



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                         Order

06/09/2023

1. The instant bail application has been filed under Section 439

Cr.P.C. on behalf of the accused-petitioner who has been arrested

on 05.02.2023 in connection with FIR No.715/2022 registered at

Police Station Kumher, District Bharatur for offences under

Sections 147, 148, 149, 302 and 120B IPC and Section 3/25 of

the Arms Act. After completion of trial, the police has filed charge

sheet for offences under Sections 147, 148, 149, 302, 307 and

120B IPC and Section 3/25 of the Arms Act.

2. Learned counsel for the petitioner contends that the

petitioner has falsely been implicated in this case. He submits

that the petitioner is a lady and she is behind the bars since

05.02.2023. He further contends that she was not named in the

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statement of the injured Tenpal recorded under Section 164 Cr.P.C

on 22.02.2023. The only allegation against the petitioner is that

she pelted stones on the complainant side. Counsel further

submits that notwithstanding the accusation being the one

punishable under Section 302 of the IPC, she being a woman is

statutorily entitled to be considered for release on bail, that too in

a case where the charge sheet is already filed in the matter. He

also contends that the petitioner being the family member of the

alleged aggressor party, has been over-implicated in this case. The

petitioner has no criminal antecedents and trial will take

considerable time in its conclusion. He thus, prays that the instant

bail application may be allowed and the petitioner may be

released on bail.

3. Per contra, learned Public Prosecutor as well as learned

Senior Counsel Mr. A.K. Gupta, assisted by Mr. Gaurav Sharma

representing the complainant vehemently and fervently oppose

the bail application and submits that it is a case of triple murder

and the alleged offence is punishable with death or life

imprisonment. That being so, the petitioner notwithstanding being

a woman and entitled for consideration under Section 437 of the

Cr.P.C. should not be released in the matter. It is also contended

that there is serious allegations against the petitioner and number

of witnesses have clearly stated that she actively participated in

the commission of crime and was pelting stones.

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4. I have given my thoughtful consideration to the submissions

advanced at bar and have gone through the material available on

record.

5. It is germane to notice the proviso to Section 437 of the

Cr.P.C. upon which the learned counsel for the accused petitioner

has laid emphasis. Section 437 of the Cr.P.C. reads as follows:

"437. When bail may be taken in case of non-bailable offence.--(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but--

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a

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person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,--

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

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(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.

4) An officer or a Court releasing any person on bail under sub- section (1) or sub-section (2), shall record in writing his or its 1 [reasons or special reasons] for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."

(Emphasis supplied)

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6. It is not the law that bail should always be denied in a case

where the offence punishable is of death or life imprisonment. In

exceptional cases, if the statute permits and the facts not being so

gory and grave criminal antecedents shrouding the culprit, the

consideration in such cases would be different. In terms of Section

437 of the Cr.P.C. bail can be granted in a non-bailable offence on

three circumstances as depicted in the proviso, (i) being a person

below 16 years of age, (ii) a woman and (iii) is sick or infirm.

7. In my considered view, the facts in the case at hand are not

those that would not entitle consideration of the case under

Section 437 of the Cr.P.C. The petitioner has no criminal

antecedents except the present sword hanging on the head, and

her release would not be a threat to society, coupled with the fact

that there is no allegation against the petitioner to cause injury to

anyone, police have completed the investigation and have filed

charge sheet before the learned court below and she was behind

the bars since 05.02.2023.

8. Thus, having regard to the totality of facts and

circumstances of the case; considering the submissions advanced

by learned counsel for the petitioner especially the fact that the

petitioner is a lady, she is behind the bars since 05.02.2023, and

the trial will take long time in its conclusion so also considering

the provisions of Section 437 Cr.P.C., but without commenting

anything on the merits/demerits of the case, I deem it just and

proper to allow the instant bail application under Section 439

Cr.P.C.

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9. This bail application is accordingly, allowed and it is directed

that accused-petitioner Mahendri W/o Shri Hari Singh shall be

released on bail provided she furnishes a personal bond in the

sum of Rs.1,00,000/- (Rupees One Lac Only) together with two

sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand Only)

each to the satisfaction of the learned Trial Court with the

stipulation that she shall appear before that Court and any court

to which the matter is transferred, on all subsequent dates of

hearing and as and when called upon to do so.

(ANIL KUMAR UPMAN),J

Sudhir Asopa/16

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