Bariya Jiguben Dilipkumar vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

The Applicant - Bariya Jiguben Dilipkumar as filed this Application under Section 439 of the Code of Criminal Procedure for enlarging her on Regular Bail in connection with FIR being I-C.R. No 11215038200247/2020 registered with Vasad Police Station, Taluka and District Anand for the offences punishable under Section 302 of the Indian Penal Code.

Heard learned Advocate Mr.A V Nair for the Applicant and learned APP Ms. Moxa Thakker for the Respondent - State through Video Conference.

Rule. Learned APP waives service of Rule on behalf of the Respondent - State of Gujarat.

Facts of the case is as under :

The applicant is a tribal women, who has firstly married to one Jayeshabhai Mohanbhai Bariya in the year 2014, at a young age of 18 years and due to the marital discord the said applicant and her first husband had divorced customarily. Thereafter the applicant had remarried one Dilipkumar Manharbhai Bariya in the year 2015, and started to live with him and his family inclusive of Father-in-law, mother-in-law, brother-in-law and sister -in-law. The applicant gave birth to a son named Yuvraj in the year 2016 but unfortuanetly she was subjected to cruelty by her husband and his family members during her stay with her husband at his home for all these years. The applicant has time and again subjected to domestic violence causing mental and physical harrassnet by her husband and her in-laws, who used to pass un- warranted remarks on her character and also used to throw her out from their house and it was only upon interference of the community members that the husband and the in-laws of the applicant used to take her back in their home.Lastly, she was in the matrimonial house in the month of May- June 2020. It is also submitted that the applicant use to take care of the finanical needs of the family even then the husabnd used to ill-treat her. On 15.06.2020, the applicant and her son were thrown out of the matrimonial house by her husband though their son was sufferring with fever and without any money on her hand the applicant had to stay in a Mahadev Temple near Mahisagar River. On an unfortunate mid-night of 15.06.2020 to 16.06.2020 as she did not wanted to trouble her father and there was nobody else to help her at her matrimonial home, as her mother has also expired some years back. She has jumped in Mahisagar river.

Submission of the Parties:

Learned Advocate for the Applicant / Accused has submitted that the present case is due to the matrimonial discord, that the applicant has jumped into Mahisagar River along with the child and unfortunately the child succumed to injuries and the applicant survived, prima facie, she had no intention to kill the child. On the contrary, indirectly, she has been provoked to take the extreme step and at the most primafacie, it may consider as offences fall under Sections 304(I) or 304(II) of the IPC. He has therfore prayed that discretion may kindly be exercised in favour of the applicant accused.

Per contra, learned APP has vehemently opposed the grant of the present application and submitted that the charge-sheet has already been filed. That the 4 year old child has died due to steps taken by the applicant and that the trial Court shall decide the merits of the case. She has further submitted that if the Hon'ble Court is inclined to grant bail then in such case strict conditions may be imposed.

Merits of the Case:

This court has considered the following aspects:

(a) That even if it is a prima facie case, then also as such there is no antecedent.

(b) That the charge sheet is filed.

(c) Further as per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.

(d) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.

(e) That the applicant has taken extreme steps due to matrimonial discord and harrassment and thereafter she had jumped into the Mahisagar river along with the 4 year old child. Hence, primafacie, the case is not under section 302 of IPC though the trial court can go into the merits of the case.

(f) That the Applicant is a lady Accused and is in custody since 29.06.2020.

(g) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40 wherein it is held that bail is a rule and jail is an exception.

Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, and that the Applicant is a lady accused the present Application deserves to be allowed and accordingly stands allowed. This Court has also gone through the FIR being I-C.R. No 11215038200247/2020 registered with Vasad Police Station, Taluka and District Anand and police papers and also the earlier order passed by the learned Sessions Court where the learned Sessions Judge has disallowed the bail Application at initial stage. The Applicant Accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that she shall:

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

(b) maintain law and order and not to indulge in any criminal activities.

(c) furnish the documentary proof of complete, correct and present address of her residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change her residence without prior permission of the trial Court.

(d) provide her contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.

(e) file an affidavit stating her immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.

(f) not leave India without prior permission of the Trial Court

(g) surrender passport, if any, to the Trial Court within a week. If she does not possess passport, she shall file an Affidavit to that effect.

(h) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing.

Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.

If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if she is not required in connection with any other offence for the time being.

Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court / Authority.