Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 357

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Mohd. Ashraf & Anr. - Appellant
Vs.
UT of J&K - Respondent
Bail App No. 415 of 2021
Decided On : 08-02-2022

Advocates:
Advocate Appeared:
For the Appellant : P.N. Raina; Diksha Handoo
For the Respondents: Sunil Malhotra

The main legal point established in the judgment is the discretionary nature of granting bail, the requirement of balancing various factors while considering a bail application, and the need to consider the right of liberty of an individual and the interest of the society.

Headnote:
BAIL - Offences under Section 306 of IPC - Section 437, Section 439 of Cr.P.C. - The court discussed the legal provisions related to bail under Section 437 and Section 439 of Cr.P.C. and emphasized the importance of considering the nature and gravity of the offence, the prima facie view of the involvement of the accused, and the public interest. The court also referred to the Supreme Court's observation in the case of 'Mahipal vs. Rajesh Kumar' and highlighted the need to balance various factors while considering a bail application. The court further discussed the legal principles related to abetment of suicide and the requirement of proof of direct or indirect act/s of incitement to the commission of suicide. The court also emphasized that the seriousness of the charge is a relevant consideration, but other factors should also be taken into account to balance the right of liberty of an individual and the interest of the society.
Fact of the Case:

The deceased, wife of petitioner Mohd. Ashraf, committed suicide by jumping into river Chenab after facing mental torture and cruelty inflicted by the petitioners and their sisters. The police registered a case under Section 306 of IPC and laid the charge sheet against the accused.
Finding of the Court:

The court found that the allegations of mental torture and cruelty against the petitioners were vague and omnibus in nature. It also observed that there was no direct or indirect proof of acts of incitement to the commission of suicide by the petitioners. The court criticized the trial court's reasoning for denying bail to the petitioners and emphasized the discretionary nature of granting bail, highlighting the principle of 'bail, not jail'.
Issues: The issues revolved around the seriousness of the offence, the prima facie view of the involvement of the accused, and the balancing of various factors while considering a bail application. The court also addressed the requirement of proof of direct or indirect act/s of incitement to the commission of suicide in cases of alleged abetment of suicide.
Ratio Decidendi: The court's decision was based on the lack of specific details about the alleged acts of cruelty and torture, the absence of proximate actions of the petitioners to the time of the occurrence, and the discretionary nature of granting bail. The court also emphasized the need to balance the right of liberty of an individual and the interest of the society while considering a bail application.
Final Decision: The bail application was allowed, and the petitioners were admitted to bail with certain conditions, including furnishing a personal bond, appearing before the trial court, and not leaving the territorial limits without prior permission.

JUDGEMENT/ORDER :

1. The instant application for grant of bail has been moved by the petitioners whereby they have sought bail in a case arising out of FIR No. 03 of 2021 for offences under Section 306 of IPC registered with Police Station, Warwan, Kishtwar.

2. The facts leading to registration of the aforesaid FIR are that on 23.07.2021, the Police received an information that one lady, namely, Zahoora Begum, the wife of petitioner Mohd. Ashraf has jumped into river Chenab and her dead body has been recovered from the banks of the said river. The police started inquest proceedings under Section 174 Cr.P.C. and seized the dead body of the deceased. The statements of the witnesses who were acquainted with the circumstances of the case were recorded under Section 175 Cr.P.C.

3. It was found that the deceased was married to petitioner Mohd. Ashraf about 17/18 years back and out of this wedlock, three children were born. It was also found that after some time of their marriage, the petitioner Mohd. Ashraf, his brother Fayaz Ahmad and his sisters Shariefa Begum, Saira Begum and Rafiqa Begum used to taunt the deceased and inflict mental torture and cruelty upon her. They would even compel the deceased to go without food. It was also found that petitioner Mohd. Ashraf, who is a police official, usually remains out of his house in connection with his duty and whenever he would come to his home, his brother, petitioner Fayaz Ahmed would instigate him against the deceased. Thus, it was found that the deceased, after being fed up of the acts of cruelty inflicted upon her by the accused, decided to end her life by committing suicide and consequently, she jumped into river Chenab.

4. Based on the above circumstances that were unraveled during the inquest proceedings, the police registered the aforesaid FIR and started investigation of the case. The statements of witnesses under Sections 161 and 164 of Cr.P.C. were recorded during the investigation, whereafter it was found that offence under Section 306 of IPC is established not only against the petitioners, but also against their three sisters named hereinbefore. Accordingly the charge sheet was laid before the trial court. The charge for offence under Section 366 IPC stands framed by the trial court against all the five accused persons.

5. It appears that the petitioners as well as the co-accused had approached the learned trial court for grant of bail, but the application to the extent of petitioners has been dismissed vide order dated 22.09.2021 passed by the learned Sessions Judge, Kishtwar whereas the application of three female accused has been allowed.

6. In the instant application, it is contended by the petitioners that the allegations made in the impugned FIR and the charge sheet filed against them are absolutely baseless and devoid of any substance. It is further contended that the petitioners are innocent persons and bail cannot be denied to them as a measure of punishment. It has also been contended that the learned trial court has, while dismissing the bail application of the petitioners, fallen into grave error inasmuch as it has adopted a reasoning which amounts to violation of normal rule of bail not jail. Lastly, it has been contended by the petitioners that they are ready to abide by all the conditions that may be imposed upon them in case bail is granted to them.

7. The application has been resisted by the respondents. It is contended by the respondents that the allegations made against the petitioners in the FIR and the charge-sheet are very serious in nature as they have committed a heinous offence which is punishable with imprisonment for a term which may extent to ten years and fine. According to the respondents, there is sufficient material on record to disclose direct complicity of the petitioners in the alleged crime. It is also contended that the bail application has been rightly rejected by the trial court and that there is reasonable apprehension that the petitioners