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2007 DIGILAW 510 (RAJ)

Bhagwati v. State of Rajasthan

2007-03-08

DALIP SINGH

body2007
JUDGMENT 1. - This is petition under Section 438 Cr.PC. filed by the petitioners against whom FIR No. 61/2007 has been registered at Police Station, Chandni Bagh, Panipat in Haryana. 2. Learned counsel for the petitioners has prayed that the petitioners are residents of Sikar in Rajasthan and with a view to facilitate and afford an opportunity to the petitioners to seek anticipatory bail from the courts having jurisdiction over the police station in question this court be pleased to grant transitory bail to the petitioners. 3. The learned counsel for the petitioners in this connection has relied upon the two judgments of this court in case of Rajendra Moondra v. State of Rajasthan, reported in 2000 Vol. 2 RCC 1478 and Banwari Lal v. State of Rajasthan, reported in 2003 WLC (Raj.) UC 258 where this court exercising the powers under Section 438 Cr.P.C. has granted the transitory bail for a specified led period to the petitioners to enable them to approach the court having jurisdiction for being released on anticipatory bail. 4. The learned Public Prosecutor has drawn the attention of the court to the averments made in para 2 of the bail application wherein the petitioners have frankly mentioned that the petitioners Nos. 1, 2 and 3 had in fact, moved an application under Section 438 Cr.RC. before the Additional Sessions Judge, Panipat (Haryana) which was dismissed vide order dated 20.02.2007. On the basis of the above, it is contended that the judgments which have been relied upon have no application to the facts of this case as the petitioners (Nos. 1, 2 and 3) have already approached the concerned court having jurisdiction by moving the application under Section 438 Cr.PC. in this behalf. 5. I have considered the rival submissions and I find that the objection raised by the learned Public Prosecutor is well founded. The under-lying principle for the court, as in the present case, for granting transitory bail is to afford an opportunity to the accused petitioners to approach the concerned court having jurisdiction in the matter to seek anticipatory bail if they are apprehending their arrest at a place which Is beyond the territorial jurisdiction of the concerned court which would be entitled to hear the petition under Section 438 Cr.PC. on' the basis of territorial jurisdiction based upon the complaint/FIR being lodged at the concerned Police Station. on' the basis of territorial jurisdiction based upon the complaint/FIR being lodged at the concerned Police Station. In the present case as is admitted by the learned counsel for the petitioners Nos. 1, 2 and 3, the petitioners Nos. 1, 2, 3 have already approached the courts having jurisdiction i.e. Additional Sessions Judge, Panipat by moving an application under Section 438 Cr.PC., and the same has been dismissed by order dated 20.02.2007. Thus the instant case does not strictly fall within the scope and ambit for exercise of the jurisdiction under Section 438 Cr.PC. for grant of transitory bail as the petitioners Nos. 1, 2 and 3 have already approached the court having jurisdiction. 6. In view of the above, tree principles laid down by this court in the case of Rajendra Moondra and in the case of Banwari Lal referred to above, do not apply, consequently, the bail application under Section 438 Cr.PC. of Smt. Bhagwati Devi. petitioner No. 1, Rameshwar Prasad petitioner No. 2 and Miss Kalpana @ Bhoomika, petitioner No. 3 is dismissed. 7. It is submitted by the learned counsel for the petitioners that this court grant interim bail even to the petitioners Nos. 1, 2 and 3 as, soon after the dismissal of the bail application by the learned Additional Sessions Judge, Panipat on 20.02.2007. Hardeva Ram the father of the petitioner No. 2 and who being the only son of Hardeva Ram who died due to illness in the Hospital at Jaipur on 25.02.2007 and the family member including the petitioners Nos. 1, 2, and 3 are required to be at their native place for performance of the last rights and the ceremonies in that behalf due to death of Hardeva Ram father of petitioner No. 2. 8. While the aforesaid. reasons may be in a given case a ground for consideration for the grant of interim bail to the petitioner however, in the facts and circumstances of the present case as the jurisdiction for grant of interim bail can only be exercised by the court having jurisdiction and not by this court while exercising the jurisdiction to hear the application for grant of transitory bail which, as has been said above does not apply since the petitioners Nos. 1, 2 and 3 have already approached the concerned court having jurisdiction in the matter prior to filing of this petition under Section 438 Cr.PC. 1, 2 and 3 have already approached the concerned court having jurisdiction in the matter prior to filing of this petition under Section 438 Cr.PC. for transitory bail and has been dismissed by the court having jurisdiction vide order dated 20.02.2007. 9. The case of the petitioner No. 4 Dr. Praveen Chaudhary on the other hand is distinguishable to that of the petitioners No. 1, 2 and 3 whose application has been dismissed above. So far as the petitioner No. 4 Dr. Praveen Chaudhary is concerned, an affidavit has been filed today wherein it has been specifically mentioned that the petitioner No. 4 did not file any D anticipatory bail application prior to the filing of this petition before the court having jurisdiction or before any other court. 10. Since the case of the petitioner No. 4 Dr. Praveen Chaudhary is distinguishable from that of the petitioners Nos. 1, 2 and 3 the same thus covered by the decisions of this court referred to above for the grant of 5 transitory bail. In the facts and circumstances, I am inclined to accept the application of the petitioner No. 4 Dr. Praveen Chaudhary which is accordingly allowed and it is directed that in the event of his arrest by the police in connection with FIR No. 61/2007 registered at Police Station, Chandni Bagh Panipat (Haryana) the Arresting Officer shall release him on o bail for a period of four weeks on his furnishing a personal bond of Rs. 20,000/- with two sureties of Rs. 10,000/- each to the satisfaction of the Arresting Officer. The petitioner No. 4 Dr. Praveen Chaudhary would be at liberty to approach the concerned court having jurisdiction within the aforesaid four weeks from today for seeking the desired relief. The petitioner 5 No. 4 shall not In any way interfere with the Investigation and shall not leave the country without prior permission of this court so long as this order remain in force. This order shall remain in force upto 5th April, 2007. This petition under Section 438 Cr.PC., stands disposed of as indicated above.Transitory Bail Refused To Applicants No. 1 To 3 But Granted To Applicant No. 4. *******