Jammu & Kashmir High Court
Arjun Katal vs State Of J&K And Anr on 24 August, 2020
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conferencing at Srinagar)
Reserved On:10.08.2020.
Pronounced On:24.08. 2020.
Bail App No. 133/2019
Arjun Katal
.....Petitioner(s)/ Complainant(s)
Through: -
M/s. Sunil Sethi, Sr.Advocate with
Mr. Waheed Choudhary, Advocate.
V/s
State of J&K and anr.
.....Respondent(s)
Through: -
Mr. Aseem Sawhney, AAG.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
JUDGMENT
1. The petitioner is facing trial in the court of 1 st Additional Sessions Judge, Jammu, and has moved this petition for grant of bail on being charged under sections 498-A, 304-B and 306 RPC along with other accused persons being his mother, father and brother. The petitioner has moved the instant application for grant of bail in his fifth attempt after four unsuccessful attempts were made by him once before this court and thrice before the sessions court. The background facts upon which the prosecution case has been setup are that one Neha Narina (hereinafter referred to as the deceased) was married to the petitioner on19.11.2012. On 28.03.2015, her father Rajinder Singh lodged written information at Police Post, Sarwal stating that the mother of the deceased has received a phone call from the deceased saying that she was at Akhnoor and was going to end her life as ever since her marriage her in-laws has been harassing and causing mental torture her for demand of dowry. He further stated in the said information that whereabouts of his daughter are not known, whereupon, on this information FIR No. 35/2015 under section 498-A was registered. On 29.03.2015 dead body of the deceased was found in river Chinab. After conducing post mortem examination of the said dead body of the deceased, offence under section 306 was added to the FIR. Upon Page 2 of 11 CRM(M) No. 156/2020 investigation, it was found that on demand of the petitioner and his family members, the father of the deceased had given dowry worth fifteen -twenty (15-20) lakh rupees at the time of the marriage of the deceased. However, after few days of marriage, the petitioner and his family members started beating and harassing the deceased demanding more dowry. They had demanded cash worth rupees five lac from her parents. They used to confine the deceased in a room, keep her hungry and away from her child and used to give a beating. On 27.03.2015, deceased had gone to her parents house and her husband (petitioner herein) had also come there and misbehaved with her and her parents for and in connection with the demand of dowry in as much as threatened them before leaving their house. Because of the threat given by the petitioner to the deceased, she returned to her matrimonial house where the petitioner and his family members [other accused(s)] gave her beating in a cruel manner beyond her tolerance. It was thus summed up by the I.O that the deceased being an educated girl belong to a gentle family never wanted to be a burden on her parents and to make unnecessary and uncalled for demands of dowry, ultimately succumbed to the intolerable harassment and cruelty ended her life by committing suicide and her body was fished out from river Chinab on 29.03.2015. Charge sheet for commission of offences under section 498-A, 304-B and 306 RPC was thus filed against the petitioner along with other accused persons.
2. Charge is framed against the accused persons including the petitioner herein by the trial court on 07.09.2015 for commission of offences under section 498-A, 304-B and 306 RPC to which the accused persons pleaded not guilty and claimed trial.
3. Petitioner herein along with other accused persons filed a petition under section 561-A CrPC No. 472/2015 titled as "Arjun Katal Vs. State of J&K and Others" before this court for quashment of aforesaid FIR, as also aforesaid order of framing of charge dated 07.09.2015. This court after hearing the parties, dismissed the said petition on 20.04.2016 holding that there are sufficient grounds for framing charge under the aforesaid sections against the accused persons and that no case for showing any indulgence in exercise of the inherent or the revisional Page 3 of 11 CRM(M) No. 156/2020 jurisdiction is made out. Alongside the aforesaid petition filed under section 561-A, petitioner along with other accused persons had filed an application for bail No. 101/2015 before this court wherein upon consideration of the same except petitioner other petitioners were admitted to bail. It had, however, been observed that it shall be open for the petitioner to approach the trial court afresh after prosecution gets further opportunity of producing material witnesses who are the members of the parental family of the deceased in particular her mother. This was the first bail application filed by the petitioner before this court.
4. The second bail application came to be filed by the petitioner herein before the trial court on 19.11.2016 which came to be dismissed on 28.12.206. Third bail application came to be filed by the petitioner herein before the trial court on 07.12.2017 primarily on the ground that the material witnesses have been examined in the case and that from the statement of the said witnesses involvement of the accused is not made out. The said application as well, came to be dismissed by the trial court on 03.12.2018.
5. The fourth bail application came to be filed by the petitioner on 23.10.2018 on the grounds that right to speedy trial guaranteed under constitution is being infringed by the prosecution in connivance with the complainant and out of twenty five (25) listed only eight witnesses have been examined and that since 25.11.2017 prosecution did not examine even a single witness. It had been further reiterated in the said application that the statement of material witnesses examined by trial court does not connect the petitioner with the alleged crime. It had been further stated in the said application that the statement of prosecution witnesses recorded and examined by the trial court are ex-facie at variance not only with each other but also variance at prosecution version reflected in the challan. The petitioner in the said application had further pleaded that he is suffering from serious ailments which is not curable without surgery, as such, is entitled to bail. The petitioner had further pleaded in the said application that there is no specific allegation of demand of dowry against him but general demand of dowry, as such, his detention for such a long period of time is aimed at Page 4 of 11 CRM(M) No. 156/2020 curtailing his liberty and in the process violates his legal and fundamental rights. He had further pleaded in the said application that the evidence produced by the prosecution in support of the case is merely an afterthought and is based upon the statement of relative witnesses. He had further stated in the application that he has a responsibility of a minor child. The trial court after considering the bail application supra dismissed the said application as well on 07.06.2019.
6. Upon dismissal of the aforesaid application, the petitioner herein has filed the instant petition for grant of bail and has urged and reiterated almost same and similar grounds which he have had urged and pleaded in the fourth bail application filed by him before the trial court. Besides above the petitioner has in the instant petition complained about the validity and legality of the aforesaid order of trial court dated 07.06.2019 on multiple grounds without throwing challenge to the said order, which grounds as such are not being referred to herein. The petitioner in the instant petition has also pleaded that he is facing incarceration for more than four years and looking at the evidence so far which has come on record and the speed with which the trial is going on, the petitioner becomes entitled to bail.
7. Counsel for the petitioner while reiterating the contentions and grounds urged in the petition also placed reliance on section 436-A CrPC, contending that the petitioner has undergone detention for a period extending up to one half of the maximum period of imprisonment specified for the offences he is charged with, as such, is required to be released on bail by this court. In support of his case setup, counsel for petitioner relied upon judgements passed by this court in case titled Mohd Shafi and Others Vs. State dated 17.08.2017and Amir Sheikh Vs. State of J&K dated 25.10.2019 and judgement passed by the Delhi High Court in case tiled Lalit Kumar Vs. State dated 12.05.2020 as also, judgement passed by Hon'ble Supreme Court of India in case titled Bhim Singh Vs. Union of India & Ors in WP(s)(Criminal ) 310/2005 passed on 05.09.2014.
8. Respondents upon issuance of notice by this court entered appearance and though sought time for filing objections yet did not file the same after availing opportunities so granted. When the matter was taken up Page 5 of 11 CRM(M) No. 156/2020 for consideration, Mr. Aseem Sawhney learned AAG, appearing counsel for the respondents chose to argue the matter without filing objections.
9. Per contra, learned counsel for the respondents resisted and controverted the bail application inter-alia amongst others on the grounds that the petitioner is facing trial along with co-accused for commission of heinous offences punishable under sections 498-A, 304- B and 306 RPC and that sufficient evidence has come up before the trial court against the petitioner manifestly connecting him with the commission of offences in question. Learned counsel denied that the trial of the case has been or is being protracted by the prosecution in connivance with the complainant party. Counsel for the respondents further urged that the petitioner is not entitled to invoke the provisions of section 436-A CrPC, in that, the offence of 304-B carries punishment of minimum seven years and maximum of life.
10. Heard and considered the rival submissions made by counsel appearing on either side as also perused the scanned record summoned from the trial court in view whereof following points may be falling for consideration of this court: -
a) Whether the petitioner is entitled to bail at this stage of the trial after eleven (11) witnesses including material witnesses stand examined [out of twenty five (25) listed witnesses] by the trial court and in spite of dismissal of the fourth bail application dismissed by the trial court in terms of order dated 07.06.2019.
b) Whether petitioner is entitled to claim bail at this stage of the trial for charges under section 498-A, 304-B and 306 RPC under and in terms of section 436-A CrPC.
11. While dealing with point (A) it would be appropriate to advert to the nature of offences the petitioner is charged with i.e. Sections 304-B, 306 and 498-A RPC.
Section 304-B, relates to dowry death and provides that where the death of women is caused by any burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by Page 6 of 11 CRM(M) No. 156/2020 her husband or any relative of her husband for or in connection with any demand of dowry, such death shall be called "dowry death"
This section 304-B has a proximate nexus with section 113-B of Evidence Act 1872, which reads as follows: -
Presumption as to dowry death- "When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person has caused the dowry death"
Explanation:- For the purposes of this section, "dowry death" shall have the same meaning as in section 304-B of the Indian Panel Code.
Section 306, deals with Abetment of suicide and provides that if any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may be extended for ten years and shall also be liable to fine.
Section 306, as well has a proximate nexus with section 113-A, of the Evidence Act, 1872, which reads as follows:
Presumption as to abetment of suicide by a married woman- "when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of a husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of a husband had subjected her to a cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of a husband."
Explanation:- For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A IPC 1860, Section 498-A, deals with cruelty by husband or relative of a husband and provides as follows:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to find.
Explanation:- For the purposes of this section, "cruelty" means;Page 7 of 11 CRM(M) No. 156/2020
a. Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or b. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.
12. Having regard to the aforesaid provisions of law and looking at the case setup by the prosecution against the petitioner, admittedly the person of deceased has died within seven years of her marriage on 29.03.2015, otherwise than under normal circumstances i.e. as a result of drowning without there being any sort of explanation coming forth so far from the petitioner as to how and why could the deceased die of drowning.
Witnesses examined so far by the trial court including the material witnesses seemingly support the prosecution case and therefore under these circumstances and in such kind of a situation, presumptions under section 113-A and 113-B of the Evidence Act may not be overlooked or else ignored at this stage. A general statement / contention of the petitioner that he did not commit any crime much less the one alleged by the prosecution and that he is innocent till proved guilty cannot alone be taken into consideration at this stage while dealing with the present bail application. This court can neither at this stage go into the evidence in such a depth which would amount to ascertaining the probability of the conviction of the accused petitioner nor can it be said at this stage that the case foisted against the petitioner is totally false, being aware of the well settled principles laid down in regard to grant or refusal of bail that detailed examination of evidence and elaborate documentation of the merits of the case need not to be undertaken while dealing with a bail application. Prima facie chain of events revealed by the prosecution supported by the witnesses at this stage do connect the petitioner accused with the commission of offences he is charged with.
13. In regard to above reference here under to Para 15 of Anil Kumar Yadav Vs. State (NCT of Delhi) and Anr. reported in 2018 (12) SCC 129 would be advantageous and appropriate:
Page 8 of 11 CRM(M) No. 156/202015. "As held in Puran case [2001(6) SCC 338], while considering the question of grant of bail, court should avoid consideration of details of evidence as it is not a relevant consideration. While it is necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided. We, therefore, consciously refrain from considering the merits of the materials/ evidence collected by the prosecution."
Further, here under reference to Paras 9 & 16 of Neeru Yadav Vs. State of U.P reported in 2014 (16) SCC 508 would be appropriate:-
9. In this context, a fruitful reference be made to the pronouncement in Ram Govind Upadhyay V. Sudarshan Singh, wherein this court has observed that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious, for the heinous nature of the crime warrants more caution and there is greater change of rejection of bail, though, however dependent on the factual matrix of the matter. In the said decision, reference was made to Prahlad Singh Bhati v.
NCT of Delhi and the court opined thus: (Sudarshan Singh case, SCC p.602, para 4) "(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(a) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complaint should also weigh with the court in the matter of grant of bail.
(b) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(c) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail"
"16. The issue that is presented before us is whether this court can annual the order passed by the High Court and curtail the liberty of the second respondent? We are not oblivious of the fact that liberty is a priceless Page 9 of 11 CRM(M) No. 156/2020 treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot lowed to be paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the society. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, hen an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
In so far as consideration of point (B) is concerned, it would be appropriate to reproduce section 436-A of CrPC, which reads as under: -
S.436-A. Maximum period for which an under trial prisoner can be detained- Where a person has, during the period of investigation, inquiry or trial under this code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under the law, he shall be released by the court on his personal bond with or without sureties:Page 10 of 11 CRM(M) No. 156/2020
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall be in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
Under the First Schedule appended to Code of Criminal Procedure, 1973 For section 304-B, punishment of imprisonment of not less than seven years, but which may extend to imprisonment for life is provided.
For section 306, punishment of imprisonment of ten years and fine is provided, whereas:
For section 498-A, punishment of imprisonment for three years and fine is provided.
14. The person of petitioner has admittedly undergone detention during the period of trial of the case for more than five years as on date yet cannot in law invoke section 436-A and claim bail there under for simple reason that the offence of 304-B carries a punishment for life as well (imprisonment for life has been held to mean sentence for entire life of the prisoner as held in AIR 2014 SC 3345) besides a minimum of seven years and at this juncture, it cannot be speculated as to what sentence is likely to be awarded, if conviction is recorded under section 304-B against the petitioner, therefore, on this score the petitioner cannot claim bail.
15. The judgements supra referred and relied upon by learned counsel for the petitioner, passed by this court are not applicable to the case of the petitioner, and do not lend any support to his case, in that, same relates Page 11 of 11 CRM(M) No. 156/2020 to the suspension of sentence sought during pendency of conviction appeal. Whereas, judgement supra of Delhi High Court relates to the grant of interim bail in favour of the petitioner therein during the pendency of regular bail application in view of emergent situation due to Covid-19 for rendering assistance to his old age father and whereas, judgement/ order of the Hon'ble Supreme Court supra relates to the application of the provisions of section 436-A CrPC to the under trials who have had served maximum sentence prescribed under law for the offence they have been charged with.
16. For all that what has been observed and discussed hereinabove the bail petition in hand merits dismissal and is, accordingly, dismissed.
17. It is however, made clear that this court has not expressed any observation on the merits of the case. Whether the petitioner is guilty or not, of the charges framed against him, will be decided by the trial court on its own merits after analyzing the evidence that surfaces on record during the trial.
18. Disposed of along with all connected CrLM(s).
Javed Iqbal Wani) Judge SRINAGAR August 24th, 2020 "Ishaq"
i. Whether the Order is speaking? Yes/No.
ii. Whether the Order is reportable? Yes/ No.
ISAQ HAMEED BHAT
I attest to the accuracy and
authenticity of this document
24.08.2020 16:01