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Showing contexts for: section 437 crpc in State Of Rajasthan vs Ravishankar Srivastava on 24 June, 2005Matching Fragments
1. The State of Rajasthan has filed these two applications under Section 439 Cr.P.C. for cancellation of order granting bail to the accused non-applicants by Mr. R.S. Rathore, RHJS, Special Judge, Sessions Court (prevention of Corruption Act) Jaipur, (for short "Special Judge"), in FIR No. 109/2004 of Anti Corruption Bureau, Jaipur. The Special Judge has granted bail to accused-non-applicant R.S. Srivastava (hereinafter referred as "an accused") vide order dated 10th August 2004 on an application under Section 167(2) Cr.P.C. whereas the another accused-non-applicant Ajay Data (hereinafter referred as "Co-accused") has been allowed bail under Section 437 Cr.P.C. vide order dated 11.8.2004. Both the applications under Section 439(2) Cr.P.C. arise from FIR No. 109/2004 of Anti Corruption Bureau, Jaipur and both the orders have been passed in the same FIR by the same Judge, therefore, both these applications are disposed of a common order.
(a) Pooran v. Ram Bilas and Anr. ,
(b) Pokar Ram v. State of Rajasthan ,
(c) Ghanchi Rubinassalim Bhaj v. Metubha Diwan Singh Solanki ,
(d) State of Maharashtra v. Rinesh ,
(e) Dukhishyam Benepani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria ; and
(f) Ram Pratap Yadav v. Mitrasen Yadav and Anr. .
7. With regard to co-accused Ajay Data, learned AAG contended that while rejecting the anticipatory bail application filed by co-accused, vide order dated 30.7.2004, the special Judge committed an error in granting interim bail to the accused by the same order dated 30.7.2004, therefore, impugned order dated 30.7.2004 is contradictory and illegal. He further contends that when the co-accused did not comply with the terms and conditions of interim bail dated 30.7.2004, then an application was moved on 3.8.2004 by the I.O. regarding non-cooperative attitude on the part of the co-accused. The Special Judge, instead of vacating the order granting interim bail, passed more favourable order by putting more favourable conditions in favour of the co-accused as mentioned in the order dated 3.8.2004. He next contended that the Special Judge has committed an illegality in allowing the application under Section 437 Cr.P.C. as co-accused was neither taken into police custody nor in judicial custody he further submits that even if he was presumed to have been taken into judicial custody, then without any recovery and interrogation from him, it was not proper to allow the co-accused on bail under Section 437 Cr.P.C. An order for remand of police custody ought to have been passed. In support of his contention, learned AAG has placed reliance on the following judgments:
(i) Gurbaksh Singh and Anr. v. The State of Punjab ;
(j) Ramu v. State of Karnataka (1991(1) Kar. L.J. 494).
10. Mr. A.K. Gupta, counsel for the accused non-applicant Ajay Data has contended that this is an application for cancellation of bail order already passed by the Special Judge and factors for granting bail and for cancellation of bail already granted are altogether different. This application under Section 439(2) Cr.P.C. should not be heard as an appeal or revision. He further contended that co-accused similarly situated, namely, Lalit Goyal, Girish Goyal, Suresh Bansal and Ram Niwas Lawania have already been granted bail. So far as Suresh Bansal and Ram Niwas Lawania are concerned, they preferred writ petition before this Court to quash the FIR. But while, rejecting their writ petition, this Court converted the warrant of arrest into bailable warrant. Therefore, he submits that the bail of co-accused granted under Section 437 Cr.P.C. should not be cancelled. He also contended that from the bare reading of FIR, it is clear that Ajay Data has been made as an accused with the aid of Section 120B IPC whereas from the contents FIR, no prima facie case is made out against him for the offence under Section 120B IPC whereas from the contents of FIR, no prima facie case is made out against him for the offence under Section 120B IPC. The ACB has brought in there telephone transcripts pertaining to the alleged conversation between Ajay, Data and suspected officer. However, he submits that tapping of telephone is illegal in view of Section 5(2) of the Indian Telegraph Act. In support of his contention, he has referred the judgment reported in People's Union for Civil Liberties (PUCL) v. Union of India and Anr. . It is further contended that non-one can be compelled to give information under Section 27 of the Evidence Act. Therefore, there is no need of any interrogation from Ajay Data. Hence, bail order should not be cancelled. He has referred the case of The State of Rajasthan v. Akhlesh Chandra Sharma (1984(6) R.Cr.C. 156), He submitted that the co-accused surrendered before the Court and moved an application under Section 437 Cr.P.C., therefore, it was a judicial custody and application under Section 437 Cr.P.C. has rightly been allowed. Mr. Ajay Data was out of India during the period from May 11, 2004 to May 27, 2004, therefore, it is clear that he was not a member of conspiracy. He has referred the following judgments:
43. So far as another application for cancellation of bail No. 3844/2004 relating to co-accused Ajay Data is concerned, it is borne out that although vide order dated 30.7.2004, the Special Judge rejected his bail application under Section 438 Cr.P.C. but by the same order, he directed the co-accused to appear before the I.O. as per terms and conditions imposed in the order dated 30.7.2004 itself. Although the prosecution moved an application dated 3.8.2004 alleging that he is not cooperating with the investigating agency but the said allegation is denied by him before the Special Judge. The Special Judge dismissed the application of the prosecution. Subsequently, co-accused Ajay Data surrendered himself before the Special Judge and moved an application under Section 437 Cr.P.C. on the same day. The Special Judge, after hearing both the parties, vide its order dated 11.8.2004, allowed the application of co-accused Ajay Data and released him on bail as per terms and conditions imposed in the order dated 11.8.2004. The Special Judge has passed a detailed, speaking and reasoned order. The co-accused was taken in judicial custody by Special Judge and he considered that the Co-accused had already appeared for interrogation as per order dated 30.7.2004 and 3.8.2004 and his presence is now not required. Therefore, he allowed the application and released him on bail under Section 437 Cr.P.C. The facts mentioned in the FIR disclose that allegation against the main accused R.S. Srivastava is serious in nature whereas the allegation against the co- accused relates to Section 120B IPC only. The prosecution has not controverted the submission of Mr. A.K. Gupta, learned Counsel for co-accused Ajay Data, that other similarly situated co-accused persons filed writ petition before this Court to quash the FIR and this Court although rejected their writ petition but converted the warrant of arrest of the similarly situated co- accused persons into bailable warrant. I have cancelled the bail order of main accused R.S. Srivastava on legal ground that his custody in FIR No. 110/04 could not have been treated as deemed custody in the present FIR No. 109/04 in view of the Division Bench judgment of this Court in State of Raj. v. Sukh Singh (supra), the judgment of Full Bench of this Court in State of Rajasthan. v. Santosh Yadav (supra) and the judgment of the Hon'ble Supreme Court in CBI v. Anupam J. Kulkarni (supra), as referred above. Therefore, the case of co-accused Ajay Data is altogether different and in these circumstances, 1 am not inclined to interfere in the order granting bail to co-accused Ajay Data by the Special Judge. Therefore, application for cancellation of bail No. 3844/2004 filed by the State of Rajasthan against co-accused Ajay Data is rejected.