Women Accused In Non-Bailable Offences Are A Distinct Class; Courts Need Not Be Constrained By Section 437 CrPC Bar: J&K And Ladakh High Court Grants Bail To Three Women Undertrials In Murder Case
Safiya Malik
The High Court of Jammu and Kashmir and Ladakh Single Bench of Justice Rahul Bharti has granted bail to three women undertrials accused in a murder case, directing their release on bonds of ₹50,000 each and restraining them from leaving the Union Territory without permission or influencing prosecution witnesses. The prosecution alleges that, after a dispute over adjoining pasture land, the accused group entered the victim’s home with sticks, assaulted him, and he died days later. The Court held that women accused of non-bailable offences constitute a distinct class warranting special consideration, and that courts should not let Section 437 CrPC’s strict bar control bail decisions for women; the proviso to Section 437(1) CrPC is intended to meaningfully guide discretion.
The case arose from a criminal incident reported at Police Station Larnoo, District Anantnag, on 19 July 2023. A written complaint alleged that multiple persons unlawfully entered a residential house following a dispute concerning the construction of a cattle shelter on adjoining pasture land. The accused were alleged to have assaulted the complainant’s father with sticks, causing serious injuries. Subsequently, other family members who intervened were also assaulted. An FIR was initially registered under various provisions of the Indian Penal Code, including Sections 451, 341, 506, 323, 427, 147, 148, 307, and 34 IPC.
Following the death of the injured victim on 31 July 2023, Section 302 IPC was added. Upon completion of investigation, a charge sheet was filed against fourteen accused persons. The three petitioners, all women, were arrested at different stages and remained in judicial custody as undertrials. Their applications for bail were rejected by the Principal Sessions Judge, Anantnag. Aggrieved by the refusal, the petitioners approached the High Court seeking bail under Sections 437 and 439 of the Code of Criminal Procedure.
The Court noted that “the refusal of bail in favour of said three petitioners was justified by the court of learned Principal Sessions Judge, Anantnag by reference that the stage at which the bail was being solicited is not enabling one for the court to consider letting said three petitioners on bail.”
It recorded that “the court of learned Principal Sessions Judge, Anantnag kept aside the consideration otherwise encoded in the Proviso to section 437(1) of the Code of Criminal Procedure, 1973.”
While examining the case, the Court observed that “when this Court examines the Prosecution case in larger perspective by duly bearing in mind the constraint of avoiding any observation on merit and demerits of the Prosecution case, this Court is left convinced that it is a case where the court of learned Principal Sessions Judge, Anantnag ought to have exercised discretion.”
The Bench stated that “the framers of the Code of Criminal Procedure, 1973 in providing the Proviso in sub-section 1 of section 437 reckoned ‘Woman’ as a class in terms of being accused of commission of non-bailable offence being entitled to a consideration in the matter of grant of bail.”
The Court further recorded that “there is no doubt that said Proviso does not mandate upon a criminal court approached for the sake of bail in a non-bailable offence in favour of a woman for bail to be granted on mere asking.”
Considering the factual matrix, it noted that “the accusation of commission of offence under section 302 Indian Penal Code in particular is being related to weapon of offence being sticks wielded by the assaulters whose role in the written complaint and FIR did not come out to be stated individually particularly in the context of extent of the women accused’s actual involvement.”
On this basis, the Court concluded that “a case is made out for grant of bail in favour of the petitioners lasting the pendency of the criminal trial.”
The Court directed that “the present petition is allowed by grant of bail in favour of the petitioners subject to furnishing of bond, personal as well as surety, for an amount of Rs.50,000/- each.”
“The petitioners shall not leave the UT of Jammu & Kashmir without prior permission of the trial court of learned Principal Sessions Judge, Anantnag. The petitioners shall not indulge in any act of omission or commission which may prejudice the ongoing examination of prosecution witnesses in the case except at the cost of suffering cancellation of bail hereby granted.”
Advocates Representing the Parties
For the Petitioners: Mr. S. A. Hashmi, Advocate
For the Respondents: Mr. Illyas Laway, Government Advocate
Case Title: Saleema & Ors. v. Union Territory of Jammu & Kashmir
Case Number: Bail App No. 145/2024
Bench: Justice Rahul Bharti
