Proviso To Section 437(1) CrPC Reckons Women Accused As A Class ; Must Not Be Weighed Down By Rigour Applicable To Male Accused: J&K And Ladakh High Court
The High Court held that the proviso to Section 437(1) of the CrPC treats women accused as a distinct class, and that courts, while considering their bail pleas, must not be weighed down by the rigour that would govern bail applications of male accused on the same set of facts.
The Jammu & Kashmir and Ladakh High Court has allowed bail to three women accused in a case involving allegations of murder, holding that the Trial Court failed to give effect to the legislative intent underlying the proviso to Section 437(1) CrPC, which allows special consideration for women accused in matters of bail.
The Court was hearing a petition seeking bail in connection with an FIR registered for offences under Sections 447, 323, 325, 336, 307 and 302 IPC.
A Bench of Justice Rahul Bharti, while allowing the application, observed: “The framers of the Code of Criminal Procedure, 1973 in providing the Proviso in sub-section 1 of section 437 reckoned ‘Woman’ as a class in terms of being accused of commission of non-bailable offence being entitled to a consideration in the matter of grant of bail without being held hostage by the rigour of sub-section 1 of section 437 of the Code of Criminal Procedure, 1973”.
Advocate S.A. Hashmi appeared for the petitioners, while Ilyas Laway, Government Advocate, represented the respondents.
Background
The FIR was registered on a complaint alleging that a group of persons forcibly entered the complainant’s house and assaulted him and his family members with sticks. During the alleged incident, the complainant’s father sustained injuries and subsequently died, leading to the addition of Section 302 IPC.
Fourteen persons were charge-sheeted in the case, including the present petitioners, all of whom are women. The petitioners were arrested and remained in judicial custody as undertrial prisoners. Their bail applications were rejected by the Principal Sessions Judge, Anantnag, primarily on the grounds of the seriousness of the offence and the stage of the trial.
Aggrieved by the rejection of bail, the petitioners approached the High Court.
Court’s Observation
The High Court examined the scope and purpose of the proviso to Section 437(1) CrPC and observed that the framers of the Code, by enacting the proviso, consciously recognised women accused as a distinct class in matters relating to bail in non-bailable offences.
The Court noted that while the proviso does not mandate the grant of bail on mere asking, yet “when applied for bail involving a case of a woman, be it as an undertrial in custody or an accused in custody during investigation prior to the trial, instantly activates the spirit of Proviso for a criminal court to keep in due consideration that, …there is a scope left for the criminal court not to be weighed down by the consideration that for same set of facts and circumstances a man accused of commission of bailable offence and being in undertrial custody would suffer denial of bail”.
The High Court observed that the Trial Court, while rejecting bail, had failed to meaningfully apply the proviso to Section 437(1) CrPC and had mechanically proceeded on the seriousness of the offence without appreciating that women accused stand on a different statutory footing.
Without commenting on the merits of the case, the Court further noted that the allegations in the FIR and the charge-sheet were general in nature and did not attribute any specific role to the petitioners in relation to the fatal injuries. The Court also took note of the fact that several prosecution witnesses had already been examined.
“When this Court surveys the facts and circumstances of the present case of the prosecution in which the accusation of commission of offence under section 302 Indian Penal Code in particular is being related to weapon of offence being sticks wielded by the assaulters whose role in the written complaint and FIR did not come out to be stated individually particularly in the context of extent of the women accused’s actual involvement this Court considers that a case is made out for grant of bail in favour of the petitioners lasting the pendency of the criminal trial ongoing before the court of learned Principal Sessions Judge”, the Court Concluded.
Conclusion
Holding that the petitioners were entitled to the benefit of special consideration mandated under the proviso to Section 437(1) CrPC, the Jammu & Kashmir and Ladakh High Court allowed the bail petition.
The Court directed that the petitioners be released on bail on furnishing personal bonds and surety bonds of ₹50,000 each to the satisfaction of the concerned Trial Court.
It was further directed that the petitioners shall not leave the Union Territory of Jammu & Kashmir without prior permission of the Trial Court and shall not indulge in any act that may prejudice the ongoing trial.
The bail petition was accordingly disposed of.
Cause Title: Saleema W/o Bilal Ahmad Awan & Ors. v. Union Territory of J&K
Appearances:
Petitioners: S.A. Hashmi, Advocate
Respondent: Ilyas Laway, Government Advocate