Cheque Dishonour | P&H High Court Grants Anticipatory Bail To Illiterate Lady, Says More Empathy Needed For Women When Question Of Liberty Arises

Observing that "unnecessary incarceration would negatively impact an individual's reputation, especially that of a woman", the Punjab & Haryana High Court has granted anticipatory bail to an "illiterate woman" who was declared as the proclaimed offender in a cheque dishonour case.

Justice Harpreet Singh Brar observed that  "in light of the constitutional scheme, special provisions have been made under Sections 154, 160, 309, 357B, 357C, 437 of the Cr.P.C. to protect the rights of women. In keeping with the principles enshrined in the Constitution, the Courts are required to be more empathetic and considerate towards women when the question of curtailment of liberty arises since it is not just the woman who suffers but so does her family."

It was further held that many women who commit cognizable offences were poor and illiterate and in many cases, they would have to take care of, leaving such children with no other option than to live in prisons with their mothers.

The Bench placed reliance on Satender Kumar Antil v. Central Bureau Of Investigation (2022) in which the Apex Court took cognizance of the plight of women in jails and held that in cases pertaining to women, the Court is expected to show some sensitivity.

The Court was hearing a plea for pre-arrest bail by a woman under Section 438 CrPC in a case involving cheque dishonour, wherein the lady was accused under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and declared as a proclaimed offender.

It was alleged that the cheque issued by the petitioner for the sum of over Rs 3 lakhs was dishonoured due to insufficiency of funds in her account.

The counsel for the petitioner argued that the cheque was given by her husband and she was an illiterate lady who was never served with any summons of the complaint. It was submitted that without execution of warrants of arrest, the Judicial Magistrate declared her as a proclaimed offender during the proceedings.

Considering the submissions, the Court noted that Apex Court in Vipan Kumar Dhir v. State of Punjab and another, [2021]  had put a caveat that when the accused is declared as a proclaimed offender, 'normally,' anticipatory bail should not be granted.

"The Black's Law Dictionary defines 'normally' as "rule; regularly; according to rule, general custom." When an extraordinary case is made out, a deviation from normal is not only permissible but also warranted," observed the bench.

In noting the offence committed by the petitioner, the Court observed that the offence under Section 138 of the NI Act was punishable with imprisonment which may be extended to two years and was bailable in nature.

It further observed that the petitioner in the present case was an "illiterate woman" and subjecting her to pre-trial detention would be too harsh and not proportional to the punishment prescribed for the said offence.

While noting that the bailable warrant was served upon her through her sister-in-law with whom she was admittedly not on talking terms, the Court said that effective service was never completed on the petitioner before declaring her as a proclaimed person in the case.

The provisions of Section 82 of CrPC do not create an embargo on the power of the Court to grant anticipatory bail to a proclaimed person, therefore this Court is of the opinion that the petitioner deserved the concession of anticipatory bail, in view of observations made by the  Supreme Court in Satender Kumar Antil (supra)," the bench concluded.

In light of the above, the Court granted the relief and directed the petitioner to appear before the trial Court within two weeks.

Appearance: Advocate Rajesh Kapila for the petitioner

Navreet K. Barnala, AAG Punjab 

Citation: 2023 LiveLaw (PH) 254

Title: Baby v. State of Punjab & Anr.

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