Courts must be more considerate towards women: High Court

Saurabh Malik

Chandigarh, December 6

Reaffirming its commitment to protect the rights of women in the criminal justice system, the Punjab and Haryana High Court has ruled that the courts are required to be more empathetic and considerate towards them when it comes to the curtailment of liberty.

The ruling came as Justice Harpreet Singh Brar allowed anticipatory bail plea of a woman declared a proclaimed person in a cheque bounce case. The state’s contention in the matter was that the grant of anticipatory bail was not maintainable in view of the law laid down by the Supreme Court in the case of “Lavesh versus State (NCT of Delhi)” and “Vipan Kumar Dhir versus State of Punjab and another”.

Justice Brar said the Supreme Court had put a caveat that “normally”, anticipatory bail should not be granted when the accused was declared a proclaimed offender. The Black’s Law dictionary defined ‘normally’ as “rule, regularly, according to rule, general custom”.

A deviation from normal was not only permissible, but also warranted when an extraordinary case was made out. Justice Brar added that the Supreme Court had categorically and consistently held that a person could not be deprived of his life and liberty except in accordance with procedure established by law, which had further been interpreted as a process that was just, fair and reasonable.

The Constitution of India not only bestowed the right to equality upon women, but also encouraged and empowered the state to take measures of positive discrimination in favour of women by virtue of Article 15.

Justice Brar said: “In light of the Constitutional scheme, special provisions have been made under Section 154, 160, 309, 357-B, 357-C and 437 of the CrPC to protect the rights of women. In keeping with the principles enshrined in the Constitution, the 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.”

The judge added: “Many women who commit cognisable offenses are poor and illiterate. In many cases, they have children to take care of and there are many instances when the children have no other option but are to live in prisons with their mothers.”

Justice Brar added that the offence under Section 138 of the NI Act was punishable with imprisonment which might be extend to two years and was bailable in nature.

The petitioner was an illiterate woman. Subjecting her to pre-trial detention would be too harsh and not proportional to the punishment prescribed. Besides this, service of bailable warrants was never carried out before declaring her a proclaimed person.