JAWAHER BARUA Vs. STATE

JUDGEMENT

(1.) THIS is an application by one, Jawaher Barua, praying that he be enlarged on bail pending his trial before the Sessions Court, Srinagar on charges under sections 376, 366 and 363 R. P. C. The prosecution case, briefly stated, is that the prosecutrix, Neta Gaind is a resident student of the Government Womens College, Srinagar and that on October 4, 1972 at about 4 -15 P. M. the accused met her en -route from her uncles house to the College Hostel and induced her to accompany him on the false pretext that her brother had arrived in Srinagar and was waiting for her at the Tourist Centre. He thence carried her in a Taxi Car to a house -boat and when questioned by her how that was so, he told her that the house -boat was being occupied by her brother who was due to come there shortly. Eventually the accused, however, detained her up to October 6, 1972 when she was rescued by the police and meanwhile committed sexual intercourse with her against her will.

(2.) BY his order dated October 26. 1972 the Chief Judicial Magistrate, Srinagar. has committed the applicant on the aforesaid charges to stand his trial before the Court of Sessions, Srinagar. The learned Magistrate has based his order on the evidence of the prosecutrix, her brother and lady doctor who examined the girl. On this evidence, according to him a prima facie case under sections 363, 366 and 376 R. P. C. has been made out against, the applicant. In the view that the offences were serious he has turned down the request for bail made by the applicant. A similar request made to the Sessions Judge has met the same fate though on slightly different grounds. The grounds taken by him are twofold one that the applicant might abscond if released on bail as he does not belong to the State nor also owns any property in the State and, the second that he is the son of an influential person like the Deputy High Commissioner for India in Australia and might tamper with the prosecution witnesses.

(3.) SECTION 498 Cr. P. C. gives a wide discretion to the High Court and the Court of Sessions in the matter of granting of bail. The discretion is not in terms fettered by the restrictions contained in section 497(1). On principle, however, the restrictions should equally apply under section 498. Any other view would result in the matter of bail being governed by different law at different levels of the Judicial hierarchy which could never be the intention of the Legislature. Consistently with section 497(1) the High Court and the Court of Sessions should be loath, save in exceptional circumstances to grant bail while exercising the powers under section 498 Cr. P. C. if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. Cases are conceivable in which a person is accused of an offence punishable with imprisonment for life or in the alternative with imprisonment for a lesser term. To quote some instances take for example the offences under sections 371, 372 and 376 R. P. C all of which are punishable with imprisonment for life or imprisonment of either description for ten years and fine. The question arises, as in fact it was raised by Mr. Beg, appearing for the petitioner, whether the restriction imposed in section 497(1) Cr. P. C. providing that no bail should be granted where there are reasonable grounds for believing that the accused is guilty of an offence punishable with imprisonment for life, applies equally to such cases. The object of the law in providing an alternate punishment seems to be to leave room for the Court to impose a lesser punishment than imprisonment for life where, in its opinion, there are some extenuating circumstances which lessen the gravity of the offence. As a corollary it must follow that; the restriction imposed by section 497(1) is not intended to cover a case involving an offence punish -able with imprisonment for life and in the alternative imprisonment for a lesser term if there are extenuating circumstances which lessen the gravity of the offence. Even so the Court may decline to enlarge the accused on bail in such case as in other cases involving non -bailable offences where larger interests of the State or of the public so demand or because there is reasonable possibility of the accused absconding or tampering with the witnesses or for similar other considerations. I make observations because it was suggested by Mr. Beg that once it was found that the restriction imposed by section 497(1) is inapplicable, the accused is entitled to be enlarged on bail as a matter of course. What has been stated above in so many words appears to have been conveyed briefly by the Supreme Court in case State v. Captain Jagiit Singh (AIR 1962 S. C. 253) in these words: - "It (High Court) should then have taken into account the various considerations. Such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other consideration which arises when a Court is asked for bail in a non -bailable offence. It is true that under S. 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non -bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non -bailable offence."