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2006 DIGILAW 1781 (RAJ)

Govind Johari v. State of Rajasthan

2006-05-21

G.S.SARRAF

body2006
Judgment G.S. Sarraf, J.-The complainant Govind Johari has filed this application under Section 439(2) CrPC seeking cancellation of bail granted to the accused respondent Gopal Johari under Section 439 CrPC by Additional Sessions Judge, No. 2, Jaipur City vide order dated 110.2005. 2. The facts in brief are that the complainant lodged a report at the Ashok Nagar Police Station, Jaipur on 27.01.2005 on the basis of which a formal FIR No. 24/2005 was registered for offences under Sections 451, 323 and 427 IPC. After investigation the investigating agency submitted a negative report stating that an offence under Section 504 IPC only was made out. The complainant filed a protest petition whereupon the statements under Sections 200 and 202 of CrPC were recorded. The concerned Magistrate vide order dated 12.09.2005 took cognizance of the offences under Sections 307, 324, 427 and 504 IPC and issued warrant of arrest for the accused. In pursuance thereof the accused was arrested on 15.09.2005 and was produced before the concerned Magistrate. An application moved under Section 437 CrPC by the accused was rejected and the accused was remanded to judicial custody. On the same day i.e., 15.09.2005 an application came to be filed in the Court of Sessions Judge, Jaipur City under Section 439 Criminal Procedure Code and on that very day the accused was granted an interim bail. Thereafter the accused filed regular bail application. The Additional Sessions Judge No. 2, Jaipur City vide order dated 110.2005 dismissed the said application mainly on the ground that the accused did not happen to be in custody and, therefore, the application under Section 439 was not maintainable. The learned Court also gave certain directions regarding committal of the case and filing of the bail application. The accused filed second application for bail under Section 439 CrPC after he was taken in custody which again came up before the learned Additional Sessions Judge No. 2, Jaipur City. The learned Additional Sessions Judge vide order dated 110.2005 released the accused on bail after imposing certain conditions. Aggrieved by this order, the complainant has filed this application for cancellation of bail. 3. Shri S.R. Bajwa, learned Sr. The learned Additional Sessions Judge vide order dated 110.2005 released the accused on bail after imposing certain conditions. Aggrieved by this order, the complainant has filed this application for cancellation of bail. 3. Shri S.R. Bajwa, learned Sr. Advocate for the complainant has contended that the learned Additional Sessions Judge rejected the bail application of the accused by order dated 110.2005 and then released the accused on bail after three days without any substantial or material change in the circumstances of the case and, therefore, the order of the Additional Sessions Judge is not sustainable. He has cited in his support, 2002 (3) SCC 598 ; 2001 (7) SCC 673 and AIR 1989 SC 2292 . Shri Bajwa has argued that the learned Additional Sessions Judge released the accused on bail vide order dated 110.2005 in spite of fact that the directions given by him in the earlier order dated 110.2005 were not complied with and this amounted to review of his own order, which is not permissible under law. 4. Before I proceed to consider the arguments put forth by Shri Bajwa I think it appropriate to make a brief mention of some important aspects of the case. 5. The complainant and the accused are brothers. The complainant is the sole injured and the injury that he sustained is a minor abrasion. The investigative agency submitted a report that only an offence under Section 504 IPC was made out. Though the learned Magistrate took cognizance of offences punishable under Sections 307, 324, 427 and 504 IPC but the Special Court vide order dated 17.02.2006 discharged the accused of the offence under Section 307 Indian Panel Code and transferred the case for trial to the Chief Judicial Magistrate, Jaipur City. Of course a revision is said to be pending against the aforementioned order. 6. After a careful perusal of the order dated 110.2005 of the Additional Sessions Judge it becomes clear that the bail application was not held maintainable because the accused did not happen to be in custody. Once the accused is taken in custody then it is definitely a substantial change in the fact situation so as to entitle the accused to move second bail application. The argument of Shri Bajwa in this regard is thus devoid of any force and the Judgment s cited by him are not applicable to the facts of this case. Once the accused is taken in custody then it is definitely a substantial change in the fact situation so as to entitle the accused to move second bail application. The argument of Shri Bajwa in this regard is thus devoid of any force and the Judgment s cited by him are not applicable to the facts of this case. There is no doubt that the directions given in the order dated 110.2005 have not been complied with but looking to the nature of the directions only on that ground a person cannot be deprived of his personal liberty which is a valuable right. Non-compliance of the directions is a separate issue for which an appropriate action can be taken if need be. The order dated 110.2005 is not a review of the previous order dated 110.2005 because by the order dated 110.2005 the bail application of the accused was rejected on the ground that he was not in custody and the order dated 110.2005 releasing him on bail was passed after he was taken in custody. As such the second argument of Shri Bajwa also has no force. 7. While hearing application for cancellation of bail under Section 439(2) CrPC, the Courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to temper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. The Court has to see as to whether the accused has misused the privilege of bail granted to him. Only in exceptional cases where the order granting bail is vitiated by any serious infirmity and in the interest of justice it becomes necessary to interfere with the discretion exercised in granting bail that the order would be interfered with. In this case there does not exist any such ground and, therefore, no interference is called for. 8. On the basis of the above discussion I have come to the conclusion that this application under Section 439(2), CrPC has no merit whatsoever. 9. The application stands dismissed accordingly.