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Jammu & Kashmir High Court

Rohit Singh vs State Of J&K; on 21 November, 2017

                    HIGH COURT OF JAMMU AND KASHMIR
                               AT JAMMU
B.A. No. 144/2017
                                         Date of decision: 21.11.2017
 _______________________________________________________________
Rohit Singh                  Vs.                         State of J&K
________________________________________________________________
Coram:
                    Hon'ble Mr. Justice Janak Raj Kotwal, Judge.

Appearing Counsel:
For petitioner(s)        :   Mr. J.S.Jasrotia, Advocate.

For respondent(s)        :   Mr. L.K.Moza, AAG.

_______________________________________________________________

(i) Whether to be reported in Press, Journal/Media : Yes

(ii) Whether to be reported in Journal/Digest : Yes Petitioner, Rohit Singh and three others have been sent for trial for commission of offences under Section 304-B and 498-A RPC before the court of learned Additional Sessions Judge, Kathua. Trial arises in FIR No. 27/2016 of Police Station, Hiranagar. Charges have been framed by the trial court vide its order dated 08.04.2017. Charge against the petitioner is that his wife, Radha Sharma, committed suicide in her house on 18.03.2017. This incident occurred within 7 years of her marriage with the petitioner and soon before her death she was subjected to cruelty by the petitioner and the other accused, who are his family members. It was unanimously stated by the learned counsel on each side that framing of charge under Section 304-B RPC has been assailed before this Court, on one hand by the mother of the deceased as her grievance is that charge should have been framed under Section 302 RPC and on the other hand by the petitioners as according to them commission of offence under Section 304-B is not prima facie made out.

After filing of the charge-sheet, the trial court vide its order dated 11.06.2016 passed in the bail application filed on behalf of the accused persons B.A. No. 144/2017 Page 1 of 6 has admitted the three co-accused, Narinder Singh, Neena Kumari and Kuldeep Singh, to bail but has refused bail to the petitioner, who is, therefore, in judicial custody. Hence this application for bail before this court.

Heard learned counsel for the petitioner, Mr. J. S. Jasrotia and the learned AAG, Mr. L.K.Moza, appearing on behalf of the State.

Learned trial court, while dealing with the bail application qua the petitioner, has noticed the accusation against the petitioner that he used to harass and torture deceased with demands of dowry that ultimately compelled her to commit suicide. Learned court has observed that the accusation was serious in nature inasmuch as a young lady aged 20 years was driven to commit suicide. Dealing with the nature and character of evidence in support of the accusation, learned court has observed that there is overwhelming material on record, not only in the shape of statements of the relatives of the deceased but also in the shape of letters written by the deceased to the Commanding Officer of the petitioner in which she has highlighted the indifferent and callous attitude of the petitioner towards her. Learned court has observed that the evidence prima facie shows that all the accused, in particular the petitioner, had by their acts and omissions made the life of the victim untenable for her, which ultimately compelled her to commit suicide and that attitude of the petitioner has mainly been responsible for death of the deceased. Learned trial court has, thus, found the petitioner not entitled to be enlarged on bail, concluding, precisely, that accusations against him are not only serious but there is also strong material on record to suggest that he has been primarily responsible for driving the deceased to commit suicide.

Learned counsel for the petitioner submitted that petitioner and the co- accused have been falsely implicated as there is no plausible link between the alleged suicide by the deceased and any act or omission on the part of the petitioner and the co-accused. The deceased within one year of their marriage had started living in her parental house at Hiranagar inasmuch as the petitioner B.A. No. 144/2017 Page 2 of 6 was compelled to file a petition for divorce under Section 13 of the Hindu Marriage Act at Kathua as she had refused to resume company with him in the petition for restitution of conjugal rights filed by him. No demand of dowry was ever made by him from the deceased and she had voluntarily parted company with him. Learned counsel argued vehemently that the petitioner or the co- accused were not residing in the house in which the suicide was allegedly committed by the deceased inasmuch as no case of commission of cruelty, soon before the incident is made out. Learned counsel relied upon the Supreme Court Judgment in Manohar Lal v. State of Haryana, AIR 2014 SC 2555. Learned counsel argued further that the deceased had effected her entry in the said house after breaking open the locks. Learned counsel argued also that the prosecution case as against the petitioner is similar to that against the co-accused so the petitioner is entitled to bail on the same analogy as it has been granted to the co- accused. Learned counsel relied upon Ajit Singh v State of Chhattisgarh, 2017 Supreme 535.

Learned trial court has recorded fair and cogent reasons for refusing bail to the petitioner, though at the same time granting bail to the co-accused, and after according my consideration to the facts and circumstances of the case, I am not persuaded to take a different view at this stage. Not only that, there is another important reason for refusing the bail to the petitioner at this stage, which, however, seems not to have attracted the attention of the learned trial court.

Offence under sections 498-A and 304-B RPC are non-bailable so it may be correct to say that in terms of sections 497 and 498 Cr.P.C. the grant or refusal of bail, as in any other non-bailable offence, lies in the discretion of the bail court to be exercised after according consideration to well-known factors like, the nature and seriousness of the offence, nature of accusation, character of evidence, possibility of the accused jumping over the bail or tempering with the prosecution evidence, the circumstances which are peculiar to a given case and B.A. No. 144/2017 Page 3 of 6 general public interest in granting or refusing bail. But there is a remarkable change in the legal position with the enactment of the Jammu and Kashmir Criminal Laws (Amendment) Act, 2013 whereby, while inserting section 304-B and some other sections in the RPC, section 497-C has been inserted in the Cr.P.C. Section 497-C, which relates to grant of bail in heinous offences of 'dowry death' punishable under section 304-B RPC 'voluntary causing of grievous hurt by use of acid, etc.' punishable under section 326-A 'trafficking of persons' punishable under section 370 and offences involving rape punishable under sections 376, 376-A, 376-C, 376-D and 376-E RPC, mandates, firstly, that bail cannot be granted ex parte, that is, without giving public prosecutor (State) opportunity of being heard on the application for bail moved on behalf of the accused. By virtue of the proviso to section 497-C (1) a restriction has been imposed on the discretion of the bail court in granting bail to a person inter alia accused of offence punishable under section 304-B, if the court, on a perusal of the case diary or the report made under section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This restriction has been imposed in addition to the other restrictions under the Cr.P.C. or any other law for the time being in force. Section 497-C (1) and its proviso are relevant which are reproduced for ready reference:

"497-C. Special provision regarding bail in certain offences against women etc.-(1) Notwithstanding anything contained in this Code no person accused of an offence punishable under section 304-B, 326A, 370, 376, 376A, 376C, 376D or 376E of Ranbir Penal Code, shall if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

The legal position, thus, is clear too. Bail in the offences covered under Section 497-C Cr. P. C. cannot be granted if in the opinion of the court there are reasonable grounds for believing that the accusation against the accused is prima facie true. Conversely, the bail in such offences can be granted if court has reasons to believe that accusation prima facie is not true.

In this case, learned trial court on thorough scrutiny of the record of the case by its detailed order dated 08.04.2017 has found a prima facie case under Section 304-B RPC read with Section 498-A RPC against all the accused persons. This order has been challenged by both the sides before this court as one side feels that no prima facie case is made out for proceeding against the accused persons for commission of offence under Section 304-B RPC and the other side is of the opinion that charge should have been framed under Section 302 RPC instead of Section 304-B. I have accorded my consideration to the record of the case and having done so, I am not persuaded to form an opinion that a case for release of the petitioner on bail at this stage is made out though I prefer to abstain from dilating much on the point lest that may not cause prejudice to the parties at a future stage. The authority in Manohar Lal's case (supra) cannot be applied at this stage as in that case against a judgment of the High Court, whereby the conviction appeal filed by therein appellant was dismissed, on facts it was found that the factum of cruelty, „soon before‟ the commission of offence was not proved. In the case on hand, proceedings are at initial stage, inasmuch as the prosecution has yet to enter its evidence and the question of bail is to be considered on the strength of material relied upon by the prosecution.

The factum of release on bail of the co-accused is of no benefit for petitioner‟s case as learned trial court has drawn clear distinction between the nature of involvement of the petitioner as compared to that of the co-accused and at this stage I find no sufficient ground for taking a view that the nature of involvement of the petitioner is similar to that of the co-accused.

For aforementioned, no case for release of the petitioner on bail at this stage is made out. It shall, however, remain open for the petitioner to apply afresh before the trial court after evidence of some of the material witnesses is recorded.

This application, therefore, dismissed.

(Janak Raj Kotwal) Judge Jammu:

21.11.2017 Pawan Chopra B.A. No. 144/2017 Page 6 of 6