1 S.B. CR.MISC.BAIL PETITION NO.2466/2010 DATE OF ORDER : 6.5.2010 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. J.S.Choudhary, for the petitioner. Mr.Anil Joshi, Public Prosecutor. 1. Heard learned counsel for the petitioner and the learned Public Prosecutor. 2. It is submitted by the learned counsel for the petitioner that the present petitioner Smt. Shri Devi, who is the wife of deceased, has been implicated on the basis of the statement of Deva Ram, who is said to be brother in law of the accused petitioner and younger brother of the deceased. In the first statement recorded u/s.161 CrPC on 31.8.08, he stated that the deceased died on account of head injury inflicted due to fall and head having been collided with the T.V.table. In this statement, he has not implicated the present accused petitioner but after six months of the incident, he changed his statement and said that due to injuries inflicted by the present accused petitioner, his brother died. This statement is also recorded u/s.161 CrPC. Now, the chargesheet has been filed. It is argued by the learned counsel for the petitioner that the deceased was drunkard and this fact has been corroborated in the FSL Report also. 2 3. On the contrary, learned Public Prosecutor has opposed the bail application stating that a stick has been recovered from the accused petitioner in pursuance to the information furnished by her u/s.27 of the Evidence Act. Therefore, the bail to the accused petitioner should not be granted. 4. Often, the Court while exercising the powers u/s.439 CrPC is slow in entertaining the bail applications, particularly in offences of heinous nature like murder, gang rape, dowry death, high way crimes etc. but when the evidence is dual in nature, one implicating the accused and another contrary to it, then the Court has to determine as to whether in such cases, bail should be granted or not. Ofcourse, there is an exception u/s.437 CrPC with regard to grant of bail, if the accused is under the age of sixteen years or is a woman or disabled person. In other cases, the language used in Section 437 CrPC is that if there appears a reasonable ground that he has been guilty of an offence punishable with death or imprisonment for life, such person shall not be released on bail, except the proviso as referred-to above, whereas there is no such bar u/s.439 CrPC which gives special power to the High Court and the Court of Sessions regarding bail. Though this power is blanket but while exercising this power, the High Court and the Court of Sessions having concurrent jurisdiction, have to keep in mind the principle 3 governing the grant or rejection of bail during investigation, enquiry or trial. Unless the trial is concluded, the accused is presumed to be innocent unless the guilt is proved but this rule is subject to the exception of custodial trial. During trial, the presence of the accused is required for the purpose of expeditious disposal as well as for the purpose of identification etc. It is also said that granting bail is a rule and refusal is an exception but it is governed in the context of circumstances of the case and conduct of accused as laid down in various authorities quoting reference of Oxford and other books of Criminal Jurisprudence. If we go to the history of bail, particularly after independence, this rule was elaborately discussed in the case of Amir Chand vs. The Crown reported in AIR 1950 East Punjab 53 in which while answering question on the grant of anticipatory bail u/s.498 of the Old CrPC, Khosla J. speaking for Full Bench also discussed the scope of grant of bail with the reference of Stroud's Judicial Dictionary, which explains bail as follows: "Bailee, is when a man is taken or arrested for felony suspicion of felony, indicated of felony or any such case, so that he is restrained of his liberty. And having by law bailable, offereth surety to those which have authority to baile him, which sureties are bound for him to the Kings use in a certain sums of money, or body, for body, that he shall appear before the Justices of Saole-delivery at the next Sessions, & c." 4 5. The synthesis of the above quoted definition speaks that during investigation, enquiry or trial, the custody of the accused is of two nature, one is the custody of the Court which is termed as judicial custody and another is the custody of the bailer. When the accused is to be kept in the custody of the Court, that is judicial custody and when he is to be kept in the custody of the bailer, it has to be distinguished while exercising powers u/s.437 and 439 CrPC. The custody other than bailer during investigation, enquiry or trial is given only when the Court feels that the accused will abscond or will tamper with the evidence or he will not cooperate with the trial or will repeat the crime again & again or his release may endanger the social fabric of the Society or security or integrity of the nation in heinous crimes like murder, gang rape, dowry death, high way crimes or such offences which bars grant of bail under special laws, else it is always preferable that during trial, one should be given preference to the bailer's custody, instead of restraining his movement in court custody by curtailing his liberty as envisaged under Article 21 of the Constitution of India. 6. Keeping in mind the above proposition of law and after having gone through the facts & circumstances of the present case, where there seems little reasonable ground that the 5 present accused petitioner being a lady has committed this act, I feel inclined to grant bail to the accused u/s.439 CrPC and it is directed that the petitioner Smt.Shri Devi shall be released on bail provided she furnishes a personal bond in the sum of Rs.20,000/- and two sureties of Rs.10,000/- each to the satisfaction of the learned trial Court on usual conditions and shall appear before the trial Court on each and every date of hearing and whenever called upon to do so, till the completion of the trial. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS