Women Accused In Non-Bailable Offences Form Distinct Class; Courts Must Not Be Limited By Rigour Of S.437 CrPC: J&K&L High Court
LIVELAW NEWS NETWORK
1 Jan 2026 2:55 PM IST
Reaffirming that women accused of non-bailable offences constitute a distinct class deserving special judicial consideration, the Jammu and Kashmir and Ladakh High Court has granted bail to three women undertrials in a murder case, holding that courts must not allow themselves to be held hostage by the rigour of Section 437 CrPC while dealing with bail pleas of women.
A bench of Justice Rahul Bharti underscored that the proviso to Section 437(1) CrPC is not ornamental but embodies a humane legislative intent that must meaningfully guide judicial discretion.
This important observation arose out of Bail Application filed by three women Saleema Bano, Reshma, and Rubina, who were among fourteen accused persons named in FIR initially for offences including rioting, house trespass and attempt to murder, and later converted into a case under Section 302 IPC following the death of the injured victim.
Upon completion of investigation, the police filed a charge-sheet against fourteen accused persons for offences including Sections 147, 148, 149, 307 and 302 IPC. While several accused were arrested at the time of filing of the challan, five accused including the present petitioners were shown as absconding. Subsequently, the three women petitioners were arrested on different dates in 2024 and remained in judicial custody as undertrials.
Their applications for bail were rejected by the Principal Sessions Judge, Anantnag, who held that the stage of trial did not permit grant of bail and placed considerable reliance on the conduct of the petitioners during investigation. The trial court also made an observation that the evidence recorded so far did not absolve them of culpability.
Examining this approach, Justice Bharti found fault with the manner in which the trial court had dealt with the bail pleas, particularly noting that the statutory proviso to Section 437(1) CrPC which specifically enables grant of bail to women even in non-bailable offences had been effectively sidelined.
“The framers of the Code of Criminal Procedure, 1973 in providing the Proviso in sub-section (1) of Section 437 reckoned 'Woman' as a class… entitled to a consideration in the matter of grant of bail without being held hostage by the rigour of sub-section (1) of Section 437,” the Court observed.
The High Court clarified that while the proviso does not mandate automatic bail to women on mere asking, it activates a special judicial responsibility the moment a bail plea by a woman accused comes before the court.
“When applied for bail involving case of a woman… it instantly activates the spirit of the Proviso for a criminal court to keep in due consideration that while for a similar set of facts and circumstances a male person may suffer denial of bail, in the case of a woman accused there is a scope left for the criminal court not to be weighed down by that consideration,” the Court held.
Justice Bharti also took note of the factual matrix emerging from the prosecution record, observing that the written complaint and FIR made only sweeping and generalized allegations against all accused, without attributing specific roles, particularly to the women accused, in relation to the fatal injuries.
The Court further noted that the alleged weapon of offence was sticks and that the extent of actual involvement of the women accused did not emerge distinctly from the prosecution narrative.
The bench also acknowledged the personal and humanitarian circumstances highlighted by the petitioners, including the fact that one petitioner was a breastfeeding mother, that all three had young minor children, and that one of them had lost her eight-year-old son in a drowning accident during her incarceration, without being able to attend even his burial.
Assessing the stage of the trial, the High Court noted that by the time it heard the bail plea, several eye-witnesses had already been examined, and the situation had materially progressed beyond the stage at which bail had earlier been denied by the trial court.
Taking a cumulative view of the statutory framework, the nature of allegations, the absence of specific role attribution, and the special consideration owed to women under the proviso to Section 437(1) CrPC, the Court concluded that continued incarceration of the petitioners was not warranted during the pendency of the trial.
Accordingly, the High Court allowed the bail application and directed that the three women be released on bail on furnishing personal and surety bonds of ₹50,000 each, subject to conditions that they shall not leave the Union Territory of Jammu and Kashmir without prior permission of the trial court
Case Title: Saleema & Ors Vs UT Of J&K
Citation: 2025 LiveLaw (JKL)