1 19 S.B.CRIMINAL MISC. SECOND BAIL APPLICATION NO.5759/2009 Nanu Devi Vs. The State of Rajasthan DATE OF ORDER : 19th November 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Sandeep Mehta,for the petitioner. Mr.O.P.Singaria,Public Prosecutor for State. Mr.D.S.Dev, for the complainant. .... The petitioner Nanu Devi is one of the accused in FIR No.67/2009, Police Station Khajuwala, Bikaner wherein, after investigation, charge sheet has been filed on 30.06.2009; and the petitioner, alongwith the co-accused, is charged of the offences under Sections 304B, 498A IPC for demise of her daughter-in-law Kalawati, who is said to have died in unnatural circumstances within 4 years of marriage and who was allegedly subjected to dowry demands by her in-laws. The background aspects are noticed that the deceased Kalwati was married to Madan Lal, one of the sons of the petitioner; and Kanta, the sister of the deceased, was married to Bhajan Lal, another son of the petitioner. The said sister of the deceased was also named as an accused in this case and was also charge-sheeted for the same offences but, by the order dated 21.07.2009, the learned Trial Court has proceeded to discharge her. However, the other co-accused persons in this case, Madan Lal and Bhajan Lal, the sons of the petitioner and Raghuveer Singh, the husband of the 2 petitioner, are said to be in custody. The petitioner moved an application for bail under Section 439 Cr.P.C. that was rejected by the learned Sessions Judge on 24.07.2009. The petitioner, thereafter, approached this Court in Bail Application No. 4080/2009 and the said bail application was sought to be argued essentially on the medical ground with reference to the fact that the petitioner has been suffering from epilepsy. This Court found that in relation to the question of ailment of the petitioner, though a report was made by the Medical Board on 23.07.2009 but then, the same was forwarded only on 25.07.2009 and was not before the Trial Court while deciding the bail application on 24.07.2009; and it appeared that the submissions with reference to the report of the Medical Board were not precisely placed for consideration before the Trial Court. In the given circumstances, though this Court rejected the said first bail application bearing number 4080/2009 but with the observations that if the petitioner would move a fresh bail application with reference to the said report of the Medical Board, the same would be given due consideration by the learned Trial Court. The petitioner, thereafter, applied for bail afresh before the learned Trial Court. The learned Trial Court in its order dated 28.10.2009 referred to the said report of the Medical Board indicating that the petitioner is having an history of 3 Generalised Tonic Clonic Seizures (G.T.C.S.), has been taking anti convulsant drugs regularly, would not have fits when taking the medicine regularly, and was admitted in the medical ward between 29.06.2009 to 01.07.2009. The learned Trial Court also referred to the prescription slips showing the basic diagnosis of “Complex Partial Seizures”. However the learned Trial Court observed that there was no such opinion that the accused could not be treated in the jail and there was no such argument that her treatment was not possible while being in jail; and with reference to the nature of accusations in the matter and looking to the gravity thereof, did not feel persuaded to grant bail. The petitioner has moved this second application for bail now to this Court. It has been pointed out during the course of arguments that even recently, the petitioner was required to be hospitalised on 07.11.2009 and was discharged on 10.11.2009 after again undergoing treatment with the diagnosis of “Complex Partial Seizures”. Though the bail application has been opposed by the learned Public Prosecutor and by the learned counsel appearing for the complainant but after perusing the relevant documents including the Medical Board’s report and the hospitalization records, this Court finds the present one a fit case for grant of bail to the petitioner only for the reason of sickness. 4 The Medical Board has stated its report in relation to the petitioner in the following terms:- “This is to certify that Smt.Nanu Devi w/o Raghuveer Cast-Jat of 40 yrs. of age has been examined by the medical Board on date 23/7/09 in psychiatric OPD at 12AM in compliance of Superintendent Office Order No.674-dated 23/7/09. She is having H/o GTCS since last 12-13 yrs and taking anti convulsant drugs regularly. According to the history she doesn't have Fits when she takes medicine regularly. She remained admitted in medical ward between 29/6/09 to 1/7/09 and has been thoroughly investigated. Her NCCT Head is within normal range. The Board is of the opinion that she is suppose to take medicines regularly and should avoid to go near Fire and water and should sleep within time and should take food at scheduled time regularly.” The nature of the referred disorder definitely makes out a case that the possibility of recurrence of fits always looms large and the petitioner is required to be on regular medication. The fact of the matter is that the petitioner's husband and two sons are also confined in custody for the accusations in this case. While examining her position, this Court also enquired about the persons in the family to look after her. It has been pointed out that it is essentially the sister of the deceased, Kanta Devi, another daughter-in-law of the petitioner, who is presently looking after the household and else, the petitioner’s brothers and their families would attend on her. In the given set of facts and looking to the nature of disorder, this Court is unable to agree with the observations as 5 made by the learned Trial Court about want of opinion in the Medical Board's report that the petitioner could not be treated while being in custody. It cannot be ignored that the kind of disorder the petitioner is carrying has all the potentiality of recurrence of seizures any moment and time. This Court feels that the present one is a fit case where the aspects envisaged by the proviso to Sub-section (1) of Section 437 of the Code of Criminal Procedure apply and the petitioner, a woman and a sick person, with a chronic subsisting disorder of epilepsy, deserves to be enlarged on bail on this count itself. Accordingly, this second bail application under Sec. 439 Cr.P.C. is allowed and it is directed that the petitioner Nanu Devi w/o Raghuveer Singh be released on bail in relation to FIR No.67/2009 P.S.Khajuwala, District Bikaner provided she executes a personal bond in the sum of Rs.10,000/- with two sound and solvent sureties in the sum of Rs.5,000/- each to the satisfaction of learned Trial Court for her appearance before that court on each and every date of hearing and whenever and wherever called upon to do so till the completion of trial. (DINESH MAHESHWARI),J. s.soni