Point of Law : The proviso in Section 437 of Code of Criminal Procedure, 1973 empowers the Court that even if the offences which are punishable with death or imprisonment for life or imprisonment for seven years or more, the Court may direct that such a person referred to in clause – (i) or (ii) of Section 437 of Cr.P.C. be released on bail, if it is satisfied that if such person is under the age of 16 years or is a woman or is sick or infirm.

ORDER :

The petitioner is before this Court seeking enlargement on bail in C.C.No.252 of 2022 arising out of Crime No.530 of 2021 registered for offences punishable under Section 302, 120B and 34 of the IPC, it having been turned down by the Principal District and Sessions Judge, Bangalore Rural in Criminal Miscellaneous No.2009 of 2021, on 17.02.2022.

2. Heard Sri Hashmath Pasha, learned senior counsel appearing for the petitioner and Sri V.S.Vinayaka, learned High Court Government Pleader appearing for the respondent.

3. The facts in brief are as follows:-

The petitioner is accused No.1. It is the case of the prosecution that on 07-11-2021 at about 1.30 a.m., the complainant, father of the deceased registers a complaint for offences punishable under Section 302 of the IPC, which becomes a FIR in Crime No.530 of 2021. The complaint was that he had two daughters and a son who are all married and his two daughters are no more. His son Palar Swamy was into real estate business. He had two children from the wedlock. About 6 years ago his son Palar Swamy had married one Nethra, the petitioner herein allegedly without the knowledge of his family and had also a child from the said marriage. His son had set up a house in a different locality to reside with the petitioner and was also visiting the house of the complainant. Three years prior to the incident, the son Palar Swamy had purchased two acres of land and developed the same into sites. He had constructed a house in the said developed sites and was residing there with his alleged second wife – the petitioner. The purchase and decision to reside with the second wife became a subject matter of quarrel between the members of the family. It is the case of the complainant that on 06-11-2021, Palar Swamy came to the house of the complainant and had enquired about his health and on the same day, the complainant had tried to call Palar Swamy after 11 p.m. after his dinner but Palar Swamy had not answered the calls. Apprehending some problem for his son, the complainant goes to the house of Palar Swamy at about 12.10 (night) and found the door opened and the petitioner who was holding some weapon in her hand ran away seeing him. Later, the complainant finds his son lying dead on the bed in his room and his head was bleeding. This was narrated in the complaint and a case of murder was registered against the petitioner and one Vijay Kumar, son of petitioner’s sister. On registration of the crime, the petitioner was taken into judicial custody and is in the custody from 08-11-2021. On getting arrested, the petitioner moved an application for bail under Section 439 of the Cr.P.C. during the pendency of investigation itself. Bail application was not considered. The Police after investigation filed their final report/charge sheet on 25-01-2022. The application for bail was taken up later on 17.02.2022 and dismissed notwithstanding the fact that charge sheet had been filed in the matter on the ground that the offence committed was punishable with death or life imprisonment. Rejection of the application is what drives the petitioner to this Court in the subject petition.

4. Learned senior counsel Sri Hashmath Pasha appearing for the petitioner would vehemently argue and contend that the petitioner notwithstanding the accusation being the one punishable under Section 302 of the IPC, she being a woman is statutorily entitled to be considered for release on bail, that too in a case where the charge sheet is already filed in the matter. He would also submit that the learned Sessions Judge by his order dated 13-04-2022 has granted bail to accused No.2, who is also alleged of the same offence and of criminal conspiracy under Section 120B of the IPC. The learned senior counsel taking this Court to charge sheet and statement of witnesses submits that it is a case of circumstantial evidence as there are no eye witnesses to the incident or alleged crime.

5. On the other hand, the learned High Court Government P