While granting bail the Court cannot go in-depth to ascertain the probability of the conviction of an accused: J&K High Court

You are currently viewing While granting bail the Court cannot go in-depth to ascertain the probability of the conviction of an accused: J&K High Court
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  • Post published:March 26, 2021
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Bench: Hon’ble Mr. Justice Javed Iqbal Wani.
Counsels appearing for the parties:
Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate and Ms. Deepika Rajawat, Advocate for the petitioner.
Mr. Arshad Majid Malik, Deputy Advocate General, for respondent.

The Single Bench of the High Court of Jammu and Kashmir presided over by Justice Javed Iqbal Wani observed while dismissing an anticipatory bail application that the nature of accusation and gravity of the offence cannot be overlooked in the matter as the offence in which the petitioner is allegedly involved is punishable with imprisonment for not less than seven years which may extend to imprisonment for life.

There has been a loss of life of a young budding woman in early years of her marriage otherwise than under normal circumstances by hanging.  Enlargement of the petitioner on bail in anticipation of her arrest at this stage may hamper the investigation.

The Hon’ble High Court on 23rd March, 2021 was hearing an anticipatory bail application filed by the petitioner wherein the Court has observed that the role of the petitioner in the commission of alleged offence is required to be left open to be investigated into by the investigating agency which is required to be given a free hand to investigate the case from all its angles.

Brief facts of the Case:

The petitioner sought bail in anticipation of her arrest in FIR No. 0005/2021 dated 02.01.2021 for commission of offences punishable under Section 304-B IPC registered at Police Station, Samba.

Prior to the filing of the instant application, the petitioner had filed an anticipatory bail before this court being Bail App No. 22/2021 which, however, came to be dismissed on 03.02.2021 with liberty to the petitioner to approach the court of first instant and whereupon the petitioner filed application for anticipatory bail before Principal Sessions Judge, Samba, which too came to be dismissed on 26.02.2021.

Petitioner while claiming to be a respectable person having deep roots in the society with no chance to jump over the bail and the conditions put by this court seeks bail in anticipation thereof.

Grounds urged by the petitioner:

It is being stated that petitioner shared pleasant relationship with the deceased (her babi) having nothing ill about her in her heart or anything to seek or settle with her.

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It is being stated that despite being innocent, petitioner was falsely implicated in the FIR by the father of the deceased who had been against his daughter’s marriage with the petitioner’s brother and is using the daughter’s death as a revenge against the petitioner and her family.

It is being further stated that except the petitioner all other family members including father, mother, two brothers and a sister-in-law have been arrested in the FIR on the basis of false and fabricated complaint and statement given by the father of the deceased.

It is being next stated that on account of the aforesaid false and fabricated complaint and FIR, respondents are harassing the applicant/petitioner and all set to arrest her.

It is being further stated that she is only support around her ailing son namely Shiva who in the event of her arrest will suffer an irreparable loss, besides the petitioner would also suffer an irreparable loss as she enjoys very good reputation in the society/in-laws.

Objections by the Respondent/ Prosecution:

Mr. Arshad M Malik, Deputy Advocate General appearing for the respondents resisted the anticipatory bail application and vehemently argued that as far as the role of Shilpa is concerned the accused is involved in this case as her name figured in FIR as well as her role has been described by the deceased in her diary page No. 77 collected during investigation.

Moreover, Jatin Gupta and Monal Gupta brothers of the deceased have specifically mentioned the name of accused Shilpa (petitioner) in their statements recorded U/s 164 CrPC stating that she had subjected the deceased to cruelty and harassment on account of demand of dowry.

Ramesh Chander Gupta father of the deceased has also stated in his statement U/s 164 CrPC that the sister in law of the deceased was subjecting her with cruelty and harassment on account of demand of Dowry.

Mr. Malik further stated that the petitioner is absconding and evading her arrest along with her husband after having taken part in the commission of offence. The investigation in the case is stated to be going on and the petitioner is stated to be involved in the commission of said heinous offence, as such, admitting her to bail in anticipation is resisted and opposed by the respondents.  

Also Read:  Accused person cannot be compelled to produce or submit incriminating material to the investigating agency | J&K High Court

Observations of the Court:

The Hon’ble Court after relying on the judgment of the Supreme Court in case titled Naresh Kumar Mangla Vs. Anita Agarwal” reported in 2020 SCC online SC 1031 and Anil Kumar Yadav Vs. State (NCT of Delhi) and Anr., reported in 2018 (12) SCC 129 observed as under:

That prima-facie there is material in connection with the commission of offence against the petitioner which cannot be either overlooked or else ignored by this court while dealing with the instant application by this Court.

A general contention of the petitioner that she did not commit any crime and that she is innocent living separately with her husband after her marriage in the year 2015 cannot per-se discredit or discard the investigation in this regard conducted so far by the respondents.

The Court also observed that the Court at this stage can neither 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, in that, detailed examination of the evidence and elaborate documentation the merits of the case cannot be undertaken at this stage by this court.

The Court importantly said that the judgement referred to by learned counsel for the petitioner passed in “Sushila Aggarwal” supra case in essence fundamentally reiterate the principles and propositions of law on the subject of anticipatory bails which have been laid down in the “Naresh Kumar Mangla” supra case and do not lend any support to the petitioner in the facts and circumstances of the case.

The Court further observed that the role of the petitioner in the commission of alleged offence is required to be left open to be investigated into by the investigating agency which is required to be given a free hand to investigate the case from all its angles.

The Hon’ble Court while dismissing the bail application of the petitioner held that “There has been a loss of life of a young budding woman in early years of her marriage otherwise than under normal circumstances by hanging. Enlargement of the petitioner on bail in anticipation of her arrest at this stage may hamper the investigation.”