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2011 Supreme(J&K) 318
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Shiv Kumar -Appellant
Versus
State & Ors. -Resopndent
B.A No. 92/2010
Decided On : 10-06-2011
For the petitioner(s):Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate, For the respondent(s): Mr. B.R.Chandan, Dy. A.G.
The presumption of innocence until guilt is proven and the interim nature of bail as an assurance of presence during trial.
Headnote:
Bail - Domestic Violence - Ranbir Penal Code - Section 306, 498-A - [SUMMARY OF ACT SECTIONS REFERENCED AND DISCUSSED]
Fact of the Case:
The petitioner, accused of domestic violence leading to the suicide of his wife, sought bail after the trial court's rejection. The deceased was subjected to cruelty by the petitioner and his mother, leading to her suicide. The trial was ongoing, and the petitioner had been in custody for over a year.
Finding of the Court:
Considering the evidence, stage of trial, and the co-accused's bail, the court found extenuating circumstances to grant bail to the petitioner.
Issues: The main issue was whether the petitioner should be granted bail despite the serious charges against him.
Ratio Decidendi: The court emphasized that bail is an interim measure and incarceration should not appear as serving a sentence before conviction. It also highlighted the presumption of innocence until guilt is proven.
Final Decision: The court granted bail to the petitioner with specific conditions and reserved the right to recall the bail if circumstances warranted.
2. On 18th of September' 2009, one Jyoti Devi (deceased) has committed suicide. Five years prior to the occurrence, she was married to the petitioner. It is alleged that Mst. Vidya Devi, accused no. 2- mother-in-law and accused no.1, husband of the deceased, for want of dowry were taunting the deceased. A female baby was born from the wedlock of the deceased and accused no.1, ten months after the marriage but the child died within fourteen/fifteen days after birth. Thereafter for four long years the deceased was being provided medical treatment but she could not give birth to a child. Both accused i.e., husband and mother-in-law of the deceased lost hopes, so started subjecting the deceased to cruelty and it is cruelty meted out to her which made her to end her life by committing suicide.
3. For commission of the offences punishable under Section(s) 306 & 498-A of Ranbir Penal Code (for short R.P.C), case was registered as F.I.R No. 198 of 2009 with Police Station, Kishtwar. Investigation of the case culminated in filing the charge-sheet (Challan) and finally committed to the Court of Sessions Judge, Kishtwar for trial. The accused have been put to trial as they had pleaded not guilty to the charges framed against them. Both the accused are stated to have been arrested on 24th of September' 2009 subsequently accused no.2 i.e., mother-in-law of the deceased has been admitted to bail, whereas bail petition of the petitioner has been rejected by the trial Court vide detailed order dated 8th of November' 2010. While rejecting the petition for grant of bail, learned trial court has observed that only five witnesses have been examined; whereas PWs 4 & 5 namely Pushpa Devi and Pancham Singh, mother and brother respectively of the deceased were not examined. The said witness are star witnesses on whose testimony the whole prosecution case hinges and has also observed that in case, at this stage, bail is granted the accused may threaten/intimidate the prosecution witnesses. Finally, has concluded that the stage is not ripe for grant of bail to the accused no.1 Shiv Kumar.
4. Learned counsel appearing for the petitioner states that by now statements of eleven witnesses have been recorded, which include the statement of Pushpa Devi and Pancham Singh. The said two witnesses i.e., Pusha Devi (mother) and Pancham Singh (brother) of the deceased in their deposition have mainly stressed that it is the mother-in-law of the deceased who used to tease the deceased.
5. Almost all the witnesses shown to be witnesses to the occurrence have been examined, so there is no question of extending any intimidation or threat to the witnesses.
6. The grant or otherwise of the concession of bail is a matter of discretion and the said discretion is not unfettered. Exercise thereof is governed by the judicial principles. Every case in the backdrop of its own facts and features has to be considered. By grant or otherwise of the bail neither prosecution case can be said to have been proved nor dis-proved. Grant or otherwise of the bail is an interim measure which prevails during the trial. The curtailment of liberty is permissible when circumstances so warrant. Curtailment of liberty during enquiry/investigation/trial has an object of ensuring proper enquiry/investigation/trial. In the process to keep the accused away so as to deter him from causing any type of disturbance in the enquiry/investigation/trial. Furthermore, same is the requirement when involvement of an offender is in connection with heinous offence and in case of commission of heinous offence bent of mind can always be dangerous in order to ward of such situation, curtailment of liberty is the only option.
7. In the instant case, mitigating factors are available only relatable to the grant of bail i.e., i) admittedly, five years prior to the date of occurrence, petitioner and deceased were married
