Allahabad High Court
Chandrawati (In Jail) vs State Of U.P. on 1 April, 1992
Equivalent citations: 1992CRILJ3634
ORDER J.P. Semwal, J.
1. Heard the learned counsel for the applicant and the learned A.G.A. at great length.
2. This is a bail application by the accused applicant in case crime No. 196 of 1991 under Sections 302/201, IPC pertaining to police station Parasrampur, District Basti.
3. According to the prosecution version, Smt. Kiran was beaten by the applicant and other members of the house on 4-11-1991 at 9 a.m. She was dragged inside the house where she was again beaten and was locked in a room. Smt. Kiran was crying for help which was heard by the neighbourers. The said Smt. Kiran subsequently died and the dead body was taken out and was surreptitiously burnt by the accused at the chakroad towards the west of their plots. The village chaukidar Sri Mihilal lodged the report on 15-11-1991 at 3.20 p.m.
4. The learned counsel for the applicant has argued that no specific role has been attributed to the accused applicant and that she is an old lady of seventy years of age. It was further argued that the accused-applicant being a woman is entitled to get the benefit of the proviso to Section 437(1), Cr.P.C. It was also argued that there was delay in lodging the report and that the report was lodged by a person who is not an eye-witness.
5. I have perused photostat copy of the case diary which has been made available by the learned counsel for the accused-applicant.
6. It is really an unfortunate case in which Smt. Kiran wife of Anil was beaten and done to death and her dead body was burnt with the intention to disappear the evidence of crime. It is really a gruesome murder committed by the family members of Smt. Kiran. It was argued by the learned counsel for the applicant that it was not a case of dowry death and, therefore, while considering the present bail application the same considerations should not be taken into account. No doubt it is not a case of dowry death but a daugher-in-law was done to death by the members of the family including the accused-applicant. Such type of offences are committed in an utmost secrecy and clandestinely leaving no scope for any direct evidence. In this case, however, there is positive evidence of witnesses against the accused applicant and the members of her family and sufficient circumstantial evidence making out a prima facie case. The accused applicant as well as the other members who have been named in the first information report were found absconding by the Investigating Officer.
7. Section 439, Cr.P.C. vests no blanket powers to the court to grant bail. Though discretion under this section is unfettered but it has to be exercised judicially. The overriding considerations in granting bail which are common both in Sections 437(1) and 439(1), Cr.P.C. are the nature and gravity of the circumstances in which the offence has been committed, position and status of the accused with reference to the victim and the witnesses, likelihood of the accused fleeing from justice and tampering with witnesses etc. No list of exhaustive grounds can be set out. Facts differ from case to case. Bail is at the most a matter of procedural privilege and not an accrued right until it is granted. The law is the sentinel of rights of the Society and of the individual. The cause of public justice has to be zealously guarded as the rights of a criminal defendant. Interest of society and also cause of public justice has also to be kept in mind while granting or refusing bail. When the offence is of such nature which affects the vital interest of the society and has adverse effect on the social and family life, in such matters the issue is to be considered with reference to them. One of the considerations which has to be weighed for granting or refusing bail is a nature of the offence and its heinousness. Hence the circumstances which are peculiar to the accused and larger interest of the public and cause of public justice have to be considered. The purpose of refusing bail to accused allegedly committing a heinous offence is that their remaining at large and their remaining outside may have a deleterious effect on the minds of the general public and thwart the cause of justice.
8. There is nothing unusual in the first information report having been lodged by the Chaukidar of the village. It is not necessary that the first information report should be lodged by an eye-witness only. In a case like the present one, there is nothing abnormal in the first information report having been filed by a chaukidar and that does not militate against the prosecution case.
9. A perusal of the case diary shows that eye-witnesses remained silent being pattidars of the accused and the offence being the outcome of the family bitterness with the victim, it is not unnatural that when such a crime is committed, then the negihbourers or villagers are reluctant to come forward. No report was lodged by the accused applicant or members of her family nor any information of the death of the victim was sent to her parents or anyone else.
10. The learned counsel for the applicant has placed strong reliance on Gurcharan Singh v. Delhi Administration reported in AIR 1978 SC 179 : (1978 Cri LJ 129) and Bhagirathsingh Judeja v. State of Gujarat reported in AIR 1984 SC 372 : (1984 Cri LJ 160). I have gone through these rulings but none of them helps the applicant on the facts of the present case. The former case relates to cancellation matter of bail in two appeals filed by special leave against the judgments and orders of the Delhi High Court cancelling the order of bail of four appellants passed by the Sessions Judge, Delhi in Sunder murder case. The latter ruling relates to criminal appeal by special leave filed against the order of the Gujarat High Court setting aside the order of granting bail by the Sessions Judge in a case under Section 307, IPC. The aforesaid two cases are not the cases where the bail was granted or refused but the order granting bail was set aside. Hence, these two rulings do not apply to the facts of the present case. As already mentioned above, no exhaustive list of grounds can be set out on the basis of which bail may be granted or refused. However, the Supreme Court has in different rulings laid down the guidelines for considering the criteria and principles depending on facts and circumstances of each case; considering the nature and the seriousness of the offence, character of evidence, circumstances in which it was committed by the accused, a reasonable apprehension of witnesses being tampered with, reasonable possibility of the presence of the accused not being secured at the trial, the background of the accused, impact that the release may make on the prosecution witnesses, its impact on society and the possibility of retribution and similar other considerations which arise when a Court is asked to admit the accused to bail in a non-bailable offence. (See AIR 1962 SC 253 : 1962 (1) Cri LJ 215); State v. Captain Jagjit Singh, 1989 (4). JT SC 1 : (AIR 1989 SC 2292) State of Maharashtra v. Capt. Budhikota Suba Rao).
11. In Nirahjan Singh v. Prabhakar, AIR 1980 SC 785 : (1980 Cri LJ 426), it has been held by the Supreme Court that the Court of Session or the High Court should only be satisfied as to whether there is a prima facie case but the exhaustive exploration of merits of the case has been deprecated by the Supreme Court. In the recent case of State of Maharashtra v. Anand Chintamani Digha reported in AIR 1991 SC 1603 : (1991 Cri LJ 1945) the bail was granted by the trial Court on the basis of the statements of the witnesses recorded by the Investigating Officer treating them to be the evidence before the Court. The Hon'ble Supreme Court held that the learned Judge acted illegally in appreciating the statements of the witnesses and the material collected by the Investigating Officer at the investigating stage. The police investigation prima facie showed that mafia type of terror and fear psychosis was created which led to the cold-blooded murder. The Supreme Court cancelled the bail. It is thus quite clear from the trend of the rulings of the Hon'ble Supreme Court that the Court has to be satisfied on the facts and circumstances of each case without scrutinizing the evidence at this stage, whether the bail should be granted or refused on the basis of the material and evidence collected at the investigating stage and keeping in mind the aforesaid principles enunciated in the rulings.
12. The Supreme Court has held that the legal principles are not magic incantation and their importance lies more in the application to a given set of facts than in their recital in judgment. (See Shankar Lal Gyarsi Lal v. State of Maharashtra, AIR 1981 SC 765 : (1981 Cri LJ 325). It has also been held by the Supreme Court in Gurcharan v. State of Punjab, AIR 1956 SC 460 : 1956 Cri LJ 827) that a reference to a reported case is only by way of illustration and not by way of an appeal to precedent because on the facts no two cases can be similar. Each case has its own peculiar facts and it is, therefore, always risky to appeal the precedents on questions of facts. Thus, we have to consider the facts and circumstances of this case in which this gruesome murder took place by the family members inside the house. Oversolitous homage to the criminal's liberty can sometimes defeat the cause of justice. Thus, the personal liberty can be curbed under Cr.P.C. which is one of the procedural laws. (See State of Maharashtra v. Buddhi Kota Subha Rao, AIR 1989 SC 2292). Thus on the facts and the circumstances of the present case, the nature of the gravity of the offence and the relationship of the victim with the accused and its adverse impact on the prosecution witnesses and on the Society the accused applicant does not deserve to be bailed out.
13. As regards the benefit of proviso to Section 437(1), Cr.P.C., it was argued that she is an old lady of 70 years of age but this has been disputed by the learned A.G.A. who asserted that she is only 60 years of age and that she is not entitled to the benefit of proviso to Section 437(1), Cr.P.C. The provision of bail to woman, sick and old aged person is not mandatory and it is discretionary. (See Pramod Kumar v. Sudha Rani, 1989 All Cr J 1772). Considering the facts and circumstances of the case in which the daugher-in-law was murdered by the family members including the applicant who is the mother-in-law of the victim, I am of the opinion that the applicant is not entitled to bail merely on account of proviso to Section 437(1), Cr.P.C. being a woman. It has been held that reasonable limitations in Section 437(1), Cr.P.C. which are founded on rule of prudence ought not to be ordinarily departed from by the High Court or the Court of Session except in special cases. (See AIR 1947 All 733 (sic), Kripashanker). In the present case, there are no special circumstances to give the benefit of the proviso to Section 437(1), Cr.P.C. to the accused applicant.
14. After considering the entire facts and the circumstances of the case, the gravity of the offence and the manner in which this heinous crime was committed by the accused applicant who is the mother-in-law and other family members, it is not a fit case in which the accused applicant deserves to be bailed out.
15. For what has been stated above, the bail application fails and is liable to be rejected. The bail application is hereby rejected.