Courts should be more empathetic when liberty of women is in question: Punjab and Haryana High Court

Courts should be more empathetic and considerate when the liberty of a woman is in question, observed the Punjab and Haryana High Court recently [Baby v State]..Justice Harpreet Singh Brar observed that unnecessary incarceration would negatively impact an individual's reputation, especially that of a woman.The Court also noted that that women accused of criminal offences often come from poor or illiterate backgrounds and may 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 said. .The Court made the observation while granting anticipatory bail to an illiterate woman who had been declared as a proclaimed offender after the initiation of a check dishonour case under Section 138 of the Negotiable Instruments Act (NI Act)..The case was rooted in an agreement to sell certain property registered in the name of the woman's (petitioner) husband.After failing to execute the agreement, the husband had earlier been asked to refund the earnest money given by the intending buyer. To this end, he issued a cheque. However, it bounced, leading to the registration of a cheque dishonour case against the petitioner and her husband. After the petitioner failed to appear for trial court proceedings in this case, she was eventually declared a proclaimed offender. She then filed a plea for pre-arrest bail before the trial court, which was rejected. Thereafter, she approached the High Court for relief. .The counsel for woman argued that the cheque was provided by her husband and that she was an illiterate lady who was never served with any summons to attend the trial proceedings. It was further submitted that the judicial magistrate declared her as a proclaimed offender without executing any warrant of arrest..The High Court found force in the submission that the due process was not properly followed before the petitioner was declared a proclaimed offender. The Court acknowledged that normally, anticipatory bail would not be granted to proclaimed offenders. However, since due process had not been followed in the present case, the judge opined that there was no bar on granting anticipatory bail to the petitioner. .Pertinently, the Court also relied on the Supreme Court's judgment in Satender Kumar Antil v Central Bureau of Investigation (2022), wherein the top court had observed that courts should show sensitivity in cases involving women, given the challenging situation faced by women in jails..The Court proceeded to allow the woman's plea for pre-arrest bail, particularly since there were factors to indicate that the woman never received the summons before she was declared a proclaimed offender. "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 added. .Hence, the Court granted her anticipatory bail. .Advocate Rajesh Kapila represented the petitioner. Additional Advocate General Navreet K Barnala appeared for the State of Punjab. .[Read Order]