Sarup Kanwar vs State Of Rajasthan (2024:Rj-Jd:11447) on 6 March, 2024

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Rajasthan High Court - Jodhpur

Sarup Kanwar vs State Of Rajasthan (2024:Rj-Jd:11447) on 6 March, 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-petitioner. The requisite details of the matter are tabulated herein below:

S.No.                           Particulars of the Case
     1.     FIR Number                                105/2023
     2.     Concerned Police Station                  Phalsund
     3.     District                                  Jaisalmer
     4.     Offences alleged in the FIR               Sections   498-A,   304-
                                                      B,323/34 of the IPC
     5.     Offences added, if any                    Section 302 of the IPC
     6.     Date of passing of impugned 08.02.2024
            order

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against her and her incarceration is not warranted. There are no factors at play in the (Downloaded on 07/03/2024 at 08:39:10 PM) [2024:RJ-JD:11447] (2 of 7) [CRLMB-1916/2024] case at hand that may work against grant of bail to the accused- petitioner and she has been made an accused based on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor as well as learned counsel for the complainant oppose the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. Heard learned counsel for the petitioner as well as learned Public Prosecutor for the State and learned counsel appearing for the complainant. Perused the material made available to the Court.

5. It is not in dispute that the deceased committed suicide at her matrimonial home. Although, there were allegations in the FIR that she was murdered by her inlaws but after investigation, the above fact was not verified and the petitioner as well as Leelam Singh, his brother-in-law, the groom of the deceased were chargesheeted.

6. A perusal of the statement of Geeta Kanwar W/o Sumer Singh recorded under Section 161 Cr.P.C. before the police revealing that the Leelam Singh, the husband of the deceased Ugam Kanwar, was very much present on the fateful day of the incident at the place of occurrence. The petitioner happens to be the sister-in-law (Jethani) of the deceased. As per her, the family was celebrating the "Karwa Chauth" festival and the ladies of the family were on fasting. It is stated that the deceased told her husband to come on the terrace for performing the rituals but due to hesitation he did not come there and did not provide water to (Downloaded on 07/03/2024 at 08:39:10 PM) [2024:RJ-JD:11447] (3 of 7) [CRLMB-1916/2024] the deceased which perturbed her and the same is a cause of tiff between the spouses. After the above incident, the deceased and her husband went into their room and she also had gone to her room. In the next morning, she came to know that Smt. Ugam Kanwar drown into awater tank and due to drowning, she died.

7. From a close scrutiny of the statement of the Geeta Kanwar as well as of the other witnesses, it is not reflecting that there was any instantaneous and spontaneous cause at the hands of the petitioner which instigated, the deceased to end her life. The petitioner is lady for which special provisions have been made under Section 437 Cr.P.C. In the case titled as Santosh Vs. State of Rajasthan in S.B. Criminal Misc. Bail Application No.1102/2024 decided on 06.03.2024, this Court has passed an order granting bail in relation to releasing a female on bail while considering the provision 437 Cr.P.C. The relevant part of the said order is reproduced as under.

6. A Coordinate Bench of this Court 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:

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[2024:RJ-JD:11447] (4 of 7) [CRLMB-1916/2024] "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--

(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.

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[2024:RJ-JD:11447] (5 of 7) [CRLMB-1916/2024] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that 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 (Downloaded on 07/03/2024 at 08:39:10 PM) [2024:RJ-JD:11447] (6 of 7) [CRLMB-1916/2024] do, direct that such person be arrested and 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 those that would not entitle consideration of the case under Section 437 of the Cr.P.C. The petitioner has no criminal antecedents except the present sword hanging on the head, and her release would not be a threat to society, coupled with the fact that there is no allegation against the petitioner to cause injury to anyone, police have completed the investigation and have filed charge sheet before the learned court below and she was behind the bars since 05.02.2023."

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8. In view of the above, this Court is of the opinion that the instant application for bail filed on behalf of the petitioner deserves to be accepted in view of the Proviso to Section 437 Cr.P.C.

9. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided she furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for her appearance before the court concerned on all the dates of hearing as and when called upon to do so.

(FARJAND ALI),J 590-Mamta/-

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Rajasthan High Court - Jodhpur