S.437 CrPC | Woman Can Be Granted Bail For Non-Bailable Offence Even If It Is Punishable With Life Sentence/ Death: Karnataka High Court

A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Netra and granted her bail relying on section 437 of the Criminal Procedure Code (CrPC).

In terms of Section 437 of the CrPC, bail can be granted in a non-bailable offence on three circumstances as depicted in the proviso, (i) a person below 16 years of age, (ii) a woman and (iii) a person who is sick or infirm.

The Petitioner herein is accused of murdering her husband. As per a complaint lodged by the father of the deceased, when he reached his son's house at midnight, he found his son lying dead whereas the Petitioner, who was holding some weapon in her hand ran away seeing him.

The petitioner was taken into judicial custody and is in custody since November 8, 2021. On getting arrested, the petitioner moved an application for bail under Section 439 of the Cr.P.C. during the pendency of investigation itself. Bail application was not considered. The Police after investigation filed their final report/charge sheet on 25-01-2022. The application for bail was taken up later on 17.02.2022 and dismissed notwithstanding the fact that a charge sheet had been filed in the matter on the ground that the offence committed was punishable with death or life imprisonment.

Senior Advocate Hashmath Pasha for the Petitioner argued that notwithstanding the accusation being one punishable under Section 302 of the IPC, the accused being a woman is statutorily entitled to be considered for release on bail, that too in a case where the charge sheet is already filed in the matter.

He pointed out that the co-accused in the matter has already been released on bail.

The Prosecution on the other hand contended that the offence alleged is punishable with death or life imprisonment. That being so, the petitioner notwithstanding being a woman and entitled for consideration under Section 437 of the CrPC should not be released in the matter as she would be a threat to the society.

Findings:

The court referring to section 437 of CrPC said, "The petitioner is a woman. She is entitled for consideration under Section 437 of the Cr.P.C."

It then relied on three judgments of the High Court which dealt with the same issue—Kavitha v. State of Karnataka, Crl.P.No.2509 of 2019 decided on 5-08-2019, Ratnawwa v. State of Karnataka, Crl.P.No.100503 of 2014 decided on 13-03-2014 and Thippamma v. State of Karnataka,Crl.P.No.8575 of 2017 decided on 01-03-2018.

It observed, "The statute i.e. Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would enure to the benefit of the petitioner to be enlarged on bail notwithstanding the fact that the offence alleged is under Section 302 of the IPC."

It added,

"In exceptional cases, if the statute permits and the facts not being so gory and grave criminal antecedents shrouding the culprit, the consideration in such cases would be different."

Following which it held ,"In my considered view, the facts in the case at hand are not those that would not entitle consideration of the case under Section 437 of the Cr.P.C. particularly, looking at the conduct of the petitioner for having surrendered before the Police on commission of the alleged murder. The petitioner has no criminal antecedents except the present sword hanging on the head, and on release would not be a threat to society, coupled with the fact that the police have completed the investigation and have filed the charge sheet at the case on hand."

Accordingly it granted bail to the accused on execution of a personal bond of Rs 2 lakh with one surety for like sum. It also imposed certain conditions.

Case Title: NETHRA v STATE OF KARNATAKA

Case No: CRIMINAL PETITION No.2306 OF 2022

Citation: 2022 LiveLaw (Kar) 169

Date of Order: May 12, 2022

Appearance: Senior Advocate HASHMATH PASHA, a/w Advocate CHANDRASHEKAR R.P for petitioner

Advocate VINAYAKA V.S for respondent

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