SHAREEN GANAI vs STATE OF Jammu & Kashmir AND ANOTHER

This is an application for bail. Petitioner, Shareen Ganai and her husband, Imtiaz Ahmed, are facing trial before the court of learned Sessions Judge,

Rajouri for offences under sections 363, 364, 302Â and 120-B RPC arising in FIR No. 525/2013 of Police Station, Rajouri. They are alleged to have

kidnapped, kept in illegal confinement and murdered a male child aged 8/9 years on 07.10.2013. Learned trial court has refused bail to the petitioner

vide order dated 22.02.2017. The bail was sought on the grounds that the petitioner is a woman and her two and a half years’ suckling baby is also

compelled to live in the jail along with mother. Bail from this court is sought on the same grounds.

While dealing with the ground of womanhood of the petitioner, learned trial court took the view that she is involved in commission of heinous

offence, some of the material prosecution witnesses were yet to be examined and possibility of tampering with the prosecution evidence, if the

petitioner is released on bail, cannot be ruled out and that release of the petitioner on bail would definitely shake public confidence. Learned court

observed also that as per the record of the case delay in recording prosecution evidence is attributable to the petitioner/accused. In dealing with the

compulsion of the baby to live with his/her mother in the jail, learned trial court noticed that jail manual provides for allowing a child in the jail until

he/she is six years of age and for his entitlement to food, shelter, medical care, clothing, education and recreational facilities in the jail.Â

Learned Senior Advocate, Mr. Sunil Sethi, appearing on behalf of the petitioner, besides pointing out that the petitioner being a female can be

released on bail, notwithstanding her involvement in commission of offence of murder, sought to draw a distinction between the role allegedly played

by the petitioner in the alleged incident of kidnapping and murder of the victim and argued that the petitioner cannot be said to have been involved in a

conspiracy with her husband or to have played active role in the incident. Learned counsel argued that keeping the petitioner in jail as its natural

corollary amounts to keeping the child in jail too at the cost of future personality development of the child.

Per contra, learned Senior counsel, Mr. P. N. Raina, appearing on behalf of the informant, argued that the petitioner, who herself is a mother, was

involved in a heart-rending incident of kidnapping of a minor child and his murder so she cannot claim and given benefit of her womanhood.Â

Learned counsel argued also that law has laid down a procedure for taking care of the children who are born in the jail or are compelled to live with

their mother in the jail, so bail cannot be claimed on that ground, if bail is not otherwise permissible.Â

As a general principle, under section 497 Cr.P.C. a person accused of commission of an offence punishable with death or imprisonment for life, like

one under section 302 RPC, cannot be released on bail at any stage of the proceedings, investigation or trial. Exception to this general principle,

however, has been carved out under proviso to section 497(1) Cr.P.C. in case of a woman or any sick or infirm person/accused.

Factors governing the consideration to a prayer for bail in non bailable offence are well known. These inter alia are; the nature of accusation

against the accused, nature and heinousness of the offence, possibility of the accused jumping over the bail or tampering with the prosecution evidence

and general public interest involved in allowing or refusing the bail. Arrest and detention of a person and his release on bail at investigation or trial

stage involve important issues of great public importance relating to personal liberty on one hand and public interest on the other. I may aptly quote the

introductory remarks of the Supreme Court in Siddharam Satlingappa Mhetre v State of Maharashtra, (2011) 1 SCC 694:

“The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or

refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The

law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing

crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal

jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.â€​

Facts of the case have been noticed. To state precisely, husband of the petitioner is alleged to have kidnapped a minor male child, aged 8/9 years,

when the child was on his way back to his home from his school on 07.10.2013. When her husband entered his rented room along with the child

holding his finger, PW Yasmeen Akhter, was standing outside the house. On enquiry by PW, Yasmeen Akhter, the petitioner, told her that the child

was her younger brother. Prosecution case further is that the child was kidnapped by the husband of the petitioner for ransom but, since the police

came into action, both of them became panicky and in a huff strangulated the child to death and stuffed his dead body along with school bag in a

plastic bag and kept that bag in another under construction house.

Suffice to say for the purpose of this application and not to dilate lest that may cause prejudice to the petitioner at the trial, prosecution has collected

sufficient material to show active involvement of the petitioner in assisting her husband in the alleged incident at all vital stages, that is, kidnapping and

killing of the child and concealing the dead body. The incident is not heinous alone but horrendous indeed. Womanhood of a person involved in

commission of an offence punishable with death or imprisonment for life carves out an exception to the general principle of not admitting such a

person to bail but does not confer any right to bail in her favour. Womanhood as a ground for bail cannot be considered in isolation of the facts of the

case and nature of accusation. Petitioner, given the nature of alleged incident she is involved in, is not entitled to be released on bail during the trial of

the case. Â

Insofar as the retention of the child in the jail is concerned, I find no sufficient ground for differing with the view taken by the trial court and taking

any other view, much less ordering release of the petitioner on that score.

Viewed thus, this petition has no merit and is dismissed.