READ ORDER | Woman Accused Of Husband’s Murder Eligible For Bail Under Section 437 CrPC: Karnataka High Court

Case:

On November 07, 2021, when the father reached his son Palar Swamy’s house at midnight, he found his son lying dead. He then saw his daughter-in-law holding some weapon in her hand, and she ran away seeing him.

Later, the father of the deceased lodged an FIR under Section 302 (murder) against his son’s wife and her nephew. The petitioner-wife was taken into judicial custody and is in custody since November 8, 2021.

Background:

Palar Swamy was into real estate business. He had two children from the wedlock. About 6-years ago Palar had married one Nethra (accused in this case), without the knowledge of his family and had also a child from the said marriage. Palar had also set up a house in a different locality to reside with the Nethra and was also visiting the house of the father on and off. 

The father of the deceased alleged land dispute in the family and had filed FIR against Nethra and her sister’s son – after he saw them near Palar’s body on November 07, 2021. 

Wife Moves For Bail

After getting arrested, the wife immediately moved an application for bail under Section 437 of the Cr.P.C. during the pendency of investigation itself. However, her bail application was not considered.

Chargesheet was submitted on January 25, 2022 by the police after completing investigation. The application for bail was then taken up again on February 17, 2022, but once again the same was 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.

Submission by Wife

Senior Advocate Hashmath Pasha for the Petitioner-Wife 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 (Nethra’s nephew) has already been released on bail.

Defense by Father of Deceased Husband

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.

A single judge bench of Justice M Nagaprasanna allowed the petition and granted bail to the wife 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
• (iii) a person who is sick or infirm

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.

Relying on various judgements, the Karnataka High Court observed,

The statute i.e. Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would ensure 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.

The High Court 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.

The Judge concluded,

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.

Accused Wife was released on bail on execution of a personal bond of Rs 2 lakh with one surety for like sum.

Other conditions for bail included,

1. The petitioner shall not indulge in tampering the prosecution witnesses
2. The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
3. The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against her is disposed of