[Koodathayi Murder] Merely Because Petitioner Is Woman, She Is Not Entitled To Bail: Kerala HC Dismisses Jolly's Bail Plea [Read Order]

Simply because the petitioner is a woman, she is not entitled bail, observed the Kerala High Court while dismissing the bail petition filed by Jolly Joseph of Koodathayi village of northern Kerala accused of murder of six of her family members over a span of 17 years by administering them cyanide.

The counsel for the petitioner in the bail petition contended that the accused for the reason of being a woman is entitled the benefit of first proviso to Section 437 (1) Cr.P.C  which provides says that, 'the Court may direct that a person referred to in Clause(i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm'. According to him, this is a mandatory provision and the petitioner is entitled bail under the first proviso to Section 437 (1) Cr.P.C. 

Disagreeing with the said contention, Justice PV Kunhikrishnan observed:

"In the first proviso to Section 437 (1) Cr.P.C. the word 'may' is used, that itself shows that, it is the discretion of the court concerned to grant or not to grant bail to a person who is under the age of 16 years or a woman or a sick person or an infirm person. In Section 437 Cr.P.C. itself the verb 'may' and 'shall' are used at different places. Moreover, in the Code of Criminal Procedure itself, the Legislature used the words 'may' or 'shall' at different places and the same will show the intention of the Legislature. In Section 436 Cr.P.C. it is clearly stated that, if a person accused in a bailable offence is prepared at any time while in custody to give bail such person shall be released on bail. But in Section 437(1) Cr.P.C. the word 'may' is used. But again, in Section 437(2) Cr.P.C. the word 'shall' is used. Sub section (6) of Section 437 also says that, in the circumstances mentioned in that subsection, such person 'shall be released' on bail. Therefore, at certain places, the word 'may' is used in Section 437 Cr.P.C. and in certain places, the word 'shall' is used in Section 437 Cr.P.C. That will clearly shows that, the first proviso to Section 437(1) is not mandatory." 

In this regard, the judge referred to Pramod Kumar Manglik & Ors. v. Sadhna Rani and Ors. [1989 Crl.LJ. 1772]. The court also rejected other contentions raised by the counsel. While dismissing her bail application, the judge observed:

"It is the discretion of the court to decide whether a woman is to be released on bail in the facts and circumstances of each case. Simply because the petitioner is a woman, she is not entitled bail. In this case, the allegations against the petitioner are very serious. The prosecution alleges that, the petitioner committed six murders including the present one. The modus operandi in all cases are almost similar. Therefore, the petitioner is not entitled bail on the ground that she is a woman."

Case no.: Bail Appl..No.4628 OF 2020
Case name: JOLLYAMMA JOSEPH vs. STATE OF KERALA
Counsel: Adv B.A.ALOOR,  Sr. GP SUMAN CHAKRAVARTHY 
Coram: Justice PV Kunhikrishnan

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