Rajasthan High Court - Jaipur
Deepak S/O Ranveer Singh vs State Of Rajasthan (2023:Rj-Jp:23924) on 20 September, 2023
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2023:RJ-JP:23924]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 3512/2023
Deepak S/o Ranveer Singh, Aged About 21 Years, R/o Mahrawar,
Police Kumher, District Bharatpur (Raj.)
----Petitioner
Versus
State of Rajasthan, through P.P
----Respondent
For Petitioner(s) : Mr. Rajeev Kumar Sogarwal Mr. Sanjeev Sogarwal For Respondent(s) : Mr. B.L. Nasuan, PP Mr. Anshul Sharma HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 20/09/2023
1. The petitioner has filed this miscellaneous bail application under Section 438 Cr.P.C who is having apprehension of his arrest in connection with FIR No.86/2023 PS Kumher, District Bharatpur for offences under Sections 363, 366 & 376 IPC.
2. It is contended by counsel for the petitioner that the petitioner has falsely been implicated in this case. He submits that the there was consensual relationship between the petitioner and the prosecurix. She left her parental home on her own free will and entered into wedlock with the petitioner. Their marriage has also been registered before the Marriage Registration Officer-V, Gaziabad, which gives strength to the fact that there was consensual relations between the petitioner and the prosecutrix and that the prosecutrix is the legally wedded wife of the (Downloaded on 11/11/2023 at 08:11:32 PM) [2023:RJ-JP:23924] (2 of 7) [CRLMB-3512/2023] petitioner and both were living happily. However, when wife of the petitioner went to her parental home, she did not return to which, he filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. He submits that after recieving notice of the application, the father of the prosecutrix lodged this false FIR on 02.02.2023 while levelling false and frivolous allegations. He contends that in terms of the order dated 04.04.2023, the petitioner has joined investigation. Further, after completion of investigation, charge-sheet has been filed in the matter before the learned court below and such, custodial interrogation of the petitioner is not warranted in this case. It is argued by counsel representing the petitioner that charge-sheet under Section 299 Cr.P.C. has been filed in this matter before the learned court below for offence under Section 363, 366 and 376 (2)(n) IPC after obtaining warrant under Section 37 of Police Act. However, since the proceedings under Sections 82 & 83 Cr.P.C. have not attained finality, there would be no bar for grating anticipatory bail to the petitioner. He placed reliance upon the following judgments:-
(i) Bharat Choudhary & Anr. Vs. State of Bihar & Anr., 2003(8) SCC 77
(ii) Ravindra Saxena Vs. State of Rajasthan, 2010 (1) SCC
684.
(iii) Bimla Tiwari Vs. State of Bihar & Ors., 2023 SCC Online SC 51.
(iv) Amar Nath Neogi Vs. State of Jharkhand, 2018 (11) SCC,
797.
(v) Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (Downloaded on 11/11/2023 at 08:11:32 PM) [2023:RJ-JP:23924] (3 of 7) [CRLMB-3512/2023] 2011 (1) SCC 694.
3. He thus, prays that the instant application under Section 438 Cr.P.C. may be allowed and the petitioner may be granted benefit of anticipatory bail in the event of his arrest in connection with the FIR No.86/2023 PS Kumher.
4. Learned Public Prosecutor as well as learned counsel for the complainant have opposed the bail application and submits that the prosecutrix has levelled specific allegation of rape against the petitioner. They also submit that charge-sheet under Section 299 Cr.P.C. has been filed against the petitioner and, therefore, in view of law laid down by Hon'ble Apex Court in the case of Lavesh Vs. State (NCT of Delhi), 2012 (8) SCC 730, this bail application is not maintainable.
5. I have heard and considered the contentions advanced by both the parties. Apparently, in this case, accused petitioner has joined investigation in terms of the order dated 04.04.2023 and now the police has filed the charge-sheet and, therefore, custodial interrogation is not required in this matter. It is also evident from record that only warrant under Section 37 of the Police Act has been obtained by the police to file charge-sheet under Section 299 Cr.P.C., while proceedings under Section 82 & 83 Cr.P.C have not attained finality.
6. In my considered opinion, it cannot be held that anticipatory bail application is not maintainable as the petitioner was not declared absconder and no proclamation was issued against the (Downloaded on 11/11/2023 at 08:11:32 PM) [2023:RJ-JP:23924] (4 of 7) [CRLMB-3512/2023] petitioner till filing of the anticipatory bail application. Merely issuance of warrant under Section 37 of the Police Act does not mean that the petitioner is absconding. In case of Bharat Choudhary (supra), it was held by Hon'ble Apex Court that application under Section 438 Cr.P.C. for grant of anticipatory bail will be maintainable after charge-sheet is filed or cognizance is taken. In case of Ravindra Saxena (supra), Hon'ble Apex Court considering the same situation held that after filing of the charge- sheet, anticipatory bail application can be entertained. In case of Amar Nath Neogi (supra), Hon'ble Apex Court has considered the identical situation and considering the fact that charge-sheet has been filed, directed the accused to appear before the trial court and submit his bail bonds. In case of Lavesh (supra), it was held by Hon'ble Apex Court that the person who is "absconding" and declared as "proclaimed offender" is not entitled to seek anticipatory bail application normally. It was made clear in the aforesaid case of Lavesh (supra) that when the accused is absconding and has also been declared "proclaimed offender", case of granting anticipatory bail does not arise. In this case, while laying down the law, Hon'ble Apex Court has used word "normally" in reference to the anticipatory bail application, preferred by a "proclaimed offender". Neither the provisions under Section 82 Cr.P.C. nor under Section 438 Cr.P.C. impose any restriction on the filing of anticipatory bail by an absconder. As a rule of thumb, it cannot be said that absconder, against whom a proclamation under Section 82 Cr.P.C. is not issued, is not entitled to get anticipatory bail.
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7. In the present case, admittedly, proceedings under Sections 82 & 83 Cr.P.C. have not attained finality. Arrest should be the last option and should be restricted to those exceptional cases where arrest of the accused is imperative in the facts and circumstances of the case. The court must carefully examine entire material available on record and particularly, the allegations which have been directly attributed to the accused and the allegations should be corroborated by other material and circumstances on record.
8. In case of Siddharam Satlingappa Mhetre (Supra), Hon'ble Apext Court laid down certain factors and parameters, which are required to be taken into consideration while dealing with the anticipatory bail. Some of the relevant factors are reproduced for ready reference:-
"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the (Downloaded on 11/11/2023 at 08:11:32 PM) [2023:RJ-JP:23924] (6 of 7) [CRLMB-3512/2023] Court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
9. Having regard to the totality of the facts and circumstances; considering the arguments advanced by learned counsel for both the parties especially the fact that there was consensual relationship between the petitioner and the prosecutrix, she left her parental home on her own will and entered into wedlock with the petitioner and the present FIR has been lodged after filing of application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights so also the fact that the petitioner has not yet been declared "proclaimed offender" and charge-sheet has been filed under Section 299 Cr.P.C. but without making any comments on the merits/demerits of the case, it is hereby directed that the petitioner shall appear before the trial court on or before 06.10.2023 and submits personal bond in the sum of Rs.1,00,000/- and two sound and solvent sureties of Rs.50,000/- each. Upon furnishing the bail bonds, learned trial court is directed (Downloaded on 11/11/2023 at 08:11:32 PM) [2023:RJ-JP:23924] (7 of 7) [CRLMB-3512/2023] to accept the same. Till 06.10.2023, the petitioner shall not be arrested in connection with FIR No.86/2023 registered at Police Station Kumher, Bharatpur.
10. With the aforesaid directions and observations, this anticipatory bail application is disposed of.
(ANIL KUMAR UPMAN),J /Sudhir Asopa (Downloaded on 11/11/2023 at 08:11:32 PM) Powered by TCPDF (www.tcpdf.org)