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2004 DIGILAW 11 (JK)

Mugli v. State Through SHO Police Station Sopore

2004-02-09

SYED BASHIR-UD-DIN

body2004
Besides other accused, Mst.Mugli and Mst. Shareefa are facing trial in FIR 287 of 2001 under Section 447/302 read with Section 34 R.P.C. before the District and Sessions Judge Baramulla. Mst. Shareefa has been given bail on 1.11.2003, whereas, Mst.Mugli has been refused bail by the same order. This order is under challenge in this petition. The grounds taken are that in all six persons accused, are facing trial in the case before District and Sessions Judge Baramulla. A joint application was moved by Mugli and Shareefa for bail. The trial court admitted Shareefa to bail but refused it to Mugli. Both ladies along with other four male accused are roped in the case in almost identical circumstances and on similar facts. Both are facing same charge of complicity in the crime as vicarious liability for having caused death amounting to murder. Both were referred for medical examination and both have been certified to be suffering from ailment. The applicant Mugli, is more than 60 years of age and has to look after the home and the children. Shareefa who is much younger to her has been given bail for no appreciable reason. The applicant is suffering from phychiatric disorder her continuance incarceration is likely to expose her to risk on health grounds. 2. Heard counsel for the parties. Mr. M. A. Rathore, AAG for the State is conceding that both the women accused are facing trial for same charge for causing death on similar allegations and in almost identical circumstances. He also concedes that both were examined by the Medical Board as to their state of health. The opinion of the State Medical Board of Government, SMHS Hospital Srinagar, respect of the state of health of two ladies is opined as under :- 1., Mst. Mugli,, w/o Mehda Chopan disorder with anxiety features which is R/o Sopore Baramulla,, ...."She is a diagnosed case of adjustment minor psychiatric disorder and case Stand trial." 2., Shareefa D/o Mehda Chopan R/o Sopore Baramulla,, "She is a case of paranoid sehizophrenia in remission and needs continous treatment." This is so born out by Annexure B. 3. Perusal of the impugned order shows that the Ld. Sessions Judge has dealt with the case of Mst. Shareefa and appears to have been influenced by the Board opinion that this is a case of "paranoid sehizophrenia in remission and has passed bail order on that count. Perusal of the impugned order shows that the Ld. Sessions Judge has dealt with the case of Mst. Shareefa and appears to have been influenced by the Board opinion that this is a case of "paranoid sehizophrenia in remission and has passed bail order on that count. However, in respect of Mst. Mugli, the District and Sessions Judge has failed to consider the above referred opinion of the Medical Board. That she too is a case of adjustment disorder of anxiety feature (minor Psychiatric disorder). Besides the trial court has also pointedly omitted to consider her advanced age and the gravamen of charge against her when the other accused including her husband is in custody as under trial. 4. Section 497-(1) Inter-alia provides that in case of non-bailable offence (as in this case) accused are not to be released if there appear reasonable grounds for believing that the accused are guilty of an offence punishable with death or life imprisonment. However, even so, the first proviso reads as:- "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail." 5. A bear reading of the section would show that even in case of non-bailable offences, notwithstanding appearance of reasonable grounds for believing that a person is guilty of the offence punishable by death or life imprisonment, the person can still be released if the person besides being under16 years age sick or infirm is a woman. 6. The discretion given to the court has to be exercised reasonably and to serve purpose for which proviso of law is added to section 497 Cr. P.C. The discretion has to be informed of the reasons and not to be just ipsi dixit of the trial court, when two persons are equally placed and similarly circumstanced, one cannot be given bail and another refused bail when both qualify for consideration of bail under the above proviso to Section 497 Cr.P.C . The impugned order appears bereft of any reasons so far as accused Mugli petitioner before this Court is concerned. The order cannot be sustained under law. 7. The impugned order appears bereft of any reasons so far as accused Mugli petitioner before this Court is concerned. The order cannot be sustained under law. 7. Having regard to the totality of facts and circumstances of the case, petitioner Mugli is also admitted to bail in the sum of Rs.30,000/- and personal recognizance bond in the like amount on following conditions: (i) That she as an accused shall appear before the trial court in this case regularly unless directed otherwise by the trial court. (ii) That she will desist/refrain from dissuading, coercing or pressurizing or bringing on undue influence on any witness who is likely to appear against accused during trial; (iii) That she will not tamper with the prosecution evidence in whatever form it may be when produced before and relied upon by the court; and (iv) That she will not leave the limits of the trial court of D&S Judge Baramulla without seeking proper permission of the Court; Any violation of the condition would entail forfeiture of the bonds on motion. The bail bonds shall be to the satisfaction of the Registrar Judicial who shall send the bonds alongwith copy of this order to the Sessions Court at Baramulla. Disposed of.