When a woman’s freedom is at stake, courts need to show more compassion: Punjab and Haryana High Court

The Court observed that many of the women who conduct cognizable crimes are impoverished and illiterate, and  children who would  suffer if their mother had been imprisoned may have to be cared for.

 The Punjab and Haryana High Court has said that when a woman’s liberty is at stake, courts have to be more understanding and sensitive.

Unnecessary detention, according to Justice Harpreet Singh Brar, would harm an individual’s image, particularly that of a woman. With tis court also observed that most of the accused women are come from marginalized and illiterate background and many have children to take care of.

“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. Many women who commit cognizable offences are poor and illiterate. In many cases, they have children to take care of, and there are many instances when the children have no option but are to live in prisons with their mothers,” the Court opined.

The Court made the remark while granting anticipatory bail to a lady who had been identified as a proclaimed criminal after the filing of a check dishonour case under Section 138 of the Negotiable Instruments Act (NI Act).

The dispute stemmed from an agreement to sell property registered in the name of the woman’s (petitioner’s) husband. The spouse had previously been required to repay the potential buyer’s earnest money after failing to fulfill the agreement. To this end, he issued a chaque. However, it bounced, resulting in the petitioner and her husband being charged with chaque dishonour. After failing to appear for trial court hearings in this case, the petitioner was labeled a proclaimed criminal. She subsequently applied to the trial court for pre-arrest bail, which was denied. She then applied to the High Court for redress.

The woman’s counsel stated that the chaque was supplied by her husband and that she was an illiterate lady who was never summoned to the trial hearings.

It further argued that the court magistrate declared her to be a proclaimed criminal without issuing an arrest warrant.

The High Court agreed with the petitioner’s contention that due process was not followed before he was labeled a proclaimed offender.

Normally, anticipatory bail would not be granted to proclaimed criminals, according to the Court. However, since due process was not followed in the current instance, the court ordered that anticipatory bail might be granted to the petitioner.

The Court further cited the Supreme Court’s decision in Satender Kumar Antil v Central Bureau of Investigation (2022), in which the top court said that courts should be sensitive in instances involving women, considering the difficult condition that women confront in prisons.

The Court granted the woman’s request for pre-arrest bail, noting that there was evidence that she had never received the summons before being designated a proclaimed criminal.

“The offence under Section 138 of the NI Act is punishable with imprisonment which may extend to two years and is bailable in nature. The petitioner in the present case is an illiterate woman and subjecting her to pre-trial detention would be too harsh and no proportional to the punishment prescribed for the said offence,” the Court further said.

As a result, petitioner granted anticipatory bail by the Court.

Advocate Rajesh Kapila for the petitioner. Additional Advocate General Navreet K Barnala  for the State of Punjab.

 

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