Rajasthan High Court - Jodhpur

Samok Devi vs State Of Rajasthan (2024:Rj-Jd:10098) on 27 February, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:10098]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
      S.B. Criminal Miscellaneous Bail Application No. 1470/2024

1.          Samok Devi W/o Prahlad, Aged About 30 Years, R/o
            Bishaniya, Paroli Police Station, Shahpura, Dist. Shahpura
            (Bhilwara) (Confined In Dist. Jail, Bhilwara)
2.          Smt. Foriya Devi W/o Asha Ram, Aged About 25 Years, R/
            o   Bishaniya,    Paroli     Police      Station,       Shahpura,   Dist.
            Shahpura (Bhilwara) (Confined In Dist. Jail, Bhilwara)
                                                                      ----Petitioners
                                       Versus
State Of Rajasthan, Through Pp
                                                                     ----Respondent


For Petitioner(s)            :     Mr. T.R.S.Sodha assisted by
                                   Mr. C.P. Rajoria
For Respondent(s)            :     Mr. Javeed Gauri, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

27/02/2024

1. The jurisdiction of this court has been invoked by way of

filing an application under Section 439 CrPC at the instance of

accused-petitioners. The requisite details of the matter are

tabulated herein below:

S.No.                            Particulars of the Case

     2.     Concerned Police Station                   Paroli
     3.     District                                   Shahpura
     4.     Offences alleged in the FIR                Sections 143, 447, 307,
                                                       341, 323 & 302 of the IPC
     5.     Offences added, if any                     -

6. Date of passing of impugned 30.01.2024 order

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2. It is contended on behalf of the accused-petitioners that no

case for the alleged offences is made out against them and their

incarceration is not warranted. There are no factors at play in the

case at hand that may work against grant of bail to the accused-

petitioners and they have been made an accused based on

conjectures and surmises.

3. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the present case is not fit for enlargement of

accused on bail.

4. Have considered the submissions made by both the parties

and have perused the case diary as also the material available on

record.

5. A perusal of the statement of the victim Ramjas revealing

that on the fateful day of the incident dated 19.12.2023 at around

9:00-9:30 a.m. when he went at his agricultural field to perform

the daily usual chores then suddenly, he saw that an assault was

made upon his brother Devi Lal. It is alleged that the accused

persons brutally clobbered him and one accused Asha Ram was

having an axe in his hand, by which, he inflicted injury on the

skull of Devi Lal. The witness Prahlad was also thrashed up. As

many as five persons have been made accused in this case. The

husband of the petitioner Smt. Smok Devi and Smt. Foriya Devi

Devi are made accused of this case and rather behind the bars.

From a close scrutiny, it is revealing that no specific act, overt act

and particular role of the lady petitioners' has been assigned. It

seems that the petitioners have been made accused on the

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strength of application of Sections 143-149 of the IPC. Whether

or not any unlawful assembly was constituted or whether in

furtherance of the common object of the assembly the assault was

made would be a serious question to be adjudicated by the trial

Judge after making critical appreciation of evidence as may be

brought on record during trial. At this stage, the petitioners who

are simply home-makers and belonged to a backward class of the

Society and residents of a remote village area are not required to

be kept in judicial custody until final disposal of the trial. The

petitioners are women and special provision has been provided

under the Code of Criminal Procedure for taking lenient view in

respect of granting bail to females.

6. A Coordinate Bench of this Court at Bench at Jaipur in the

case titled as Mahendri Vs. State of Rajasthan in S.B.

Criminal Misc. Bail Application No.10968/2023 decided on

06.09.2023 has observed in detail while considering a bail

application preferred on behalf of a female accused. The relevant

part of the same is reproduced as under:-

"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--

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(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 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

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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,

(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

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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)

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

such so as to dis-entitle consideration of the bail of the applicants

under Section 437 of the Cr.P.C. The petitioners have no criminal

antecedents and their release would not be a threat to society,

coupled with the fact that the investigation is completed; charge

sheet has been filed; the petitioners are behind the bars and it

can be assumed that the culmination of trial would take

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considerably long time. In light of these facts and circumstances,

it is deemed suitable to grant the benefit of bail to the petitioners

in the present matter.

8. Accordingly, the instant bail application under Section 439