Criminal Application No. 4592 of 2007

23rd April, 2008

Petitioner Counsel: Mr. VIJAY SHARMA
Respondent Counsel: Mr. B. J. SONAWANE,Mr. J. R. SHAIKH

Cases Cited:
Puran Vs. Rambilas WITH Shekhar Vs. State of Maharashtra, (2001)6 SCC 338 [Para 9]
State of U.P. through CBI Vs. Amarmani Tripathi WITH State of U.P. through CBI Vs. Madhumani Tripathi, (2005)8 SCC 21 [Para 10]
Gobarbhai Naranbhai Singala Vs. State of Gujarat WITH Jayeshbhai @ Panchabhai Muljibhai Satadiya Vs. Jayrajsingh Temubha Jadeja, 2008 AIR SCW 1014 [Para 11]

JUDGMENT

JUDGMENT :- Original complainant impugns bail order dated 12th December, 2007 rendered by learned Additional Sessions Judge, Jalgaon, on bail application (Criminal BA No.1112 of 2007).

2. By the impugned order, learned Additional Sessions Judge granted bail application of respondents No.2 and 3 and directed them to be released on furnishing bail bonds in sum of Rs.25,000/- each with one surety and on the certain conditions.

3. Undisputedly, deceased Jarinabi was married to respondent No.2 - Shaikh Nasiroddin on 23rd April, 2006 as per the tenets of the Mohammedan law. After the marriage, Jarinabi started living with the respondents No.2 and 3 at their residence. Respondent No.2 Nasiroddin is a Police Constable attached to Constabulary at Jalgaon. Jalgaon is about 28 kilometres from Bhusawal. It is about 30 minutes journey from Bhusawal to Jalgaon.

4. Briefly stated, the prosecution case is that after one month of the marriage, deceased Jarinabi was ill-treated and harassed by the respondents No.2 and 3. They used to tease her by saying that she was not knowing domestic work, her father gave less dowry and used to beat her. She used to complain about the ill-treatment and harassment. Her father and other relatives used to plead with the respondents No.2 and 3 to treat her well. About 3-4 months prior to the incident, the respondent No.2 - Nasiruddin constructed a house in Khwajanagar locality. He had demanded an amount of Rs. one (1) lac from father of deceased Jarinabi, but the latter had given only Rs.50,000/-.

5. In the evening of 9th October, 2007, there took place quarrel between deceased Jarinabi and the respondents No.2 and 3. They asked her to get out of the house. She refused to leave the house. Her mother-in-law (respondent No.3) then poured kerosene on her person from a canister and her husband (respondent No.2) set her ablaze by lighting a matchstick. She was caught by flames of fire. She was rushed to Civil Hospital at Jalgaon in the same night. She succumbed to the burn injuries. She had received 100 per cent burns. The police registered crime on basis of written dying declaration of Jarinabi which was recorded immediately after her admission in the Civil Hospital, Jalgaon. Both the respondents No.2 and 3 were arrested during investigation. The respondents No.2 and 3 filed bail application alleging that their names have been falsely implicated in the F.I.R. They contended that deceased Jarinabi received burn injuries during an accident while cooking food. They asserted that it was due to bursting of stove that she received the burns. They further asserted that respondent No.2 Nasiruddin was on duty at Police Headquarters, Jalgaon at the time of said accident which occurred at his residence in Bhusawal. He was on patrolling duty at the relevant time. He came to Bhusawal after receiving information regarding the accidental burns received by his wife. It was further asserted that respondent No.3 is old aged woman and has no concern with the commission of the alleged crime. On these premises, both the respondents sought bail. The bail application was strongly opposed by the State on ground that there is sufficient material to implicate both the respondents in serious crime and that they are likely to misuse the liberty. The learned Additional Sessions Judge was pleased to grant bail to the respondents No.2 and 3.

6. Clinching question is whether the impugned order is rendered without considering basic requirements necessary for grant of bail. The conditions laid down under section 437(1)(i) of the Criminal Procedure Code ought to be satisfied even while granting bail under section 439 of the Criminal procedure Code. Both these provisions fall under Chapter XXXIII of the Criminal Procedure Code and ought to be read together. Sub-clause (i) of Section 437(1) of the Criminal Procedure Code reads as follows:

"Sec. 437 (1) *****

(i) Such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life."

A plain reading of above provision would make it manifest that bail is not a matter of right as such. The Court is required to reach conclusion that there are no reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. In other words, the Court is required to exercise the discretion in favour of an accused when, prima facie, he may not be guilty of an offence punishable with death or imprisonment for life.

7. The impugned order shows that the learned Additional Sessions Judge considered the entries in the Station Diary dated 9th October, 2007 and reached a conclusion that the respondent No.2 might not be present at the spot of the incident when his wife sustained burn injuries. The learned Additional Sessions Judge further observed that the allegations about harassment and ill-treatment caused to deceased Jarinabi at hands of respondent No.3 were not serious. Hence, both of them were directed to be released on bail. It may be mentioned here that the learned Additional Sessions Judge did not examine whether there was prima facie material on record to say that the respondents No.2 and 3 may not be guilty of offence punishable with life imprisonment or death.

8. Coming to the material gathered during course of investigation, it is manifest that dying declaration of deceased Jarinabi was recorded in the same night by the Police Officer while she was under medical treatment in Civil Hospital, Jalgaon. Another dying declaration was thereafter recorded by Special Executive Magistrate just after midnight. Both the dying declarations consistently show that the respondents No.2 and 3 were frequently beating the deceased. She narrated that in the relevant evening, the respondents No.2 and 3 picked up a quarrel with her and asked her to get out of the house. She did not comply their direction and, hence, they sprinkled kerosene on her person and the husband (respondent No.2) flung a burning matchstick which caused fire. The injured Jarinabi was alive for a couple of days. She also narrated the same story to other witnesses including Dr. Bhole, the Medical Officer attached to Civil Hospital, Jalgaon. There is also prima facie evidence to show that on 9th October, 2007, at about 20.00 hours, Police Constable Ratilal Pawar was directed by Incharge Police Constable Ganesh Chavan to attend patrolling duty because Police Constables Mahemood Shaikh and Nasiroddin Shaikh (respondent No.2) were to leave for attending "namaz". Thus, though he was assigned the duty, yet, the respondent No.2 did not attend the patrolling duty in the evening between 20.00 hours to 23.00 hours. This fact is corroborated by statements of other Police Constables, including Leeladhar Bhoi, Ganesh Save and Prashant Sapkale. It also appears that witness Prabhakar Patil drove ambulance of Municipal Hospital, Bhusawal in the relevant evening, which was used for transportation of injured Jarinabi so as to reach her at Civil Hospital, Jalgaon. His statement shows that the respondent No.2 was accompanying injured Jarinabi in the ambulance. He requested to stop the ambulance near Icchadevi Temple at Jalgaon and alighted. Obviously, there is prima facie evidence collected by the prosecution to show that the respondent No.2 was present at his residence when the incident occurred and that he had left the Police Headquarters at Jalgaon under the pretext that he was going to attend namaz. It is important to note that the respondents No.2 and 3 did not make any attempt to extinguish the fire. The neighbours gathered after she received the burn injuries and rushed in the lane. The police statement of Raisabi Shaikh Karim reveals that by about 9.30 p.m., she noticed that Jarinabi was present in the house and had received burn injuries. She narrated the same oral dying declaration to Raisabi, who is maternal aunt of deceased Jarinabi. It appears that the charge-sheet is filed by the Investigating Officer on receiving the directions of the Superintendent of Police on 3rd December, 2007. The statements of Police Constables were recorded on 23rd December, 2007. The impugned order is rendered on 12th December, 2007. The learned Additional Sessions Judge could have gone through the statements of Police Constables and, particularly, the driver of the ambulance. The learned Additional Sessions Judge appears to have considered only the entries in the Station Diary which indicated that the respondent No.2 was assigned patrolling duty. As stated above, though he was assigned the patrolling duty, orally he was permitted to go away for attending namaz and there is possibility that he had gone to Bhusawal during the intervening period. These aspects are not considered, prima facie, by the learned Additional Sessions Judge.

9. The material on record, prima facie, shows that the respondents No.2 and 3 are involved in a serious offence punishable under section 498-A and 302 of the I.P. Code. The respondent No.2 is a Police Constable. His remaining away on bail is likely to influence the prosecution witnesses. It is probable that the trial may not be fairly proceeded with if the respondent No.2 is allowed to continue the liberty. In "Puran Vs. Rambilas and another WITH Shekhar and another Vs. State of Maharashtra and another, (2001)6 S.C.C. 338", the Apex Court observed:

"10...... One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected."

10. The Apex Court in "State of U.P. through CBI Vs. Amarmani Tripathi WITH State of U.P. through CBI Vs. Madhumani Tripathi, (2005)8 SCC 21", succinctly set out the parameters required to be followed for grant or refusal of bail. The relevant observations may be quoted as follows:

"20. In Panchanan Mishra Vs. Digambar Mishra, this Court observed : (SCC pp. 147-48, para 13) :

"The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

11. Learned advocate for respondents No.2 and 3, would submit that they have not misused the liberty. He would point out that the respondent No.3 is old aged woman and is not to likely to influence the witnesses. In "Gobarbhai Naranbhai Singala Vs. State of Gujarat and others WITH Jayeshbhai @ Panchabhai Muljibhai Satadiya Vs. Jayrajsingh Temubha Jadeja and another, 2008 AIR SCW 1014", it is held that the fact that accused did not misuse his liberty while on temporary bail twice, by itself is no ground to grant bail in a murder case, especially when he was allegedly involved in a subsequent case of murder. It is further held that bail order which is rendered in ignorance of basic requirements may be cancelled. It is well settled that while considering bail application, only prima facie assessment of evidence needs to be made. The probable defence of alibi could not have been weighed by the learned Additional Sessions Judge only on basis of entries in the Station Diary as if they are gospel truth. The core of both dying declarations of deceased Jarinabi appears to be consistent. Her maternal aunt immediately noticed presence of the respondent No.2 at the residential house within a shortwhile. In view of these circumstances, the impugned bail order is unsustainable to the extent of the respondent No.2. As regards the respondent No.3, it may be said that she is entitled to benefit of Proviso under Section 437 of the Criminal Procedure Code being a woman. It is unlikely that she would misuse the liberty. She is not influential so as to tamper with the prosecution evidence. Considering these aspects, I am not inclined to cancel the bail granted to her.

12. In the result, the application is partly allowed. The impugned order is quashed to the extent it relates to grant of bail to the respondent No.2. The respondent No.2 shall be arrested immediately and be committed to the custody as required under sub-clause (2) of section 439 of the Criminal Procedure Code. The learned Additional Sessions Judge to issue the arrest warrant to the respondent No.2 and remand him to the custody if he will not surrender immediately and to report compliance of the above direction to this Court. The application for cancellation of bail to the extent of respondent No.3 is dismissed.

Application partly allowed.