Kala Ram vs UT of Jammu and Kashmir

Moksha Khajuria Kazmi, J

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.

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.