SHAREEN GANAI Vs. STATE OF J&K AND ANOTHER

JUDGEMENT

(1.) 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, 302 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.

(2.) 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.

(3.) 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.