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2008 DIGILAW 2321 (RAJ)

Kunwarpal v. State Of Rajasthan.

2008-10-14

MAHESH BHAGWATI

body2008
JUDGMENT 1. - This order governs the disposal of bail application filed under Section 438 of Cr.P.C. seeking anticipatory Bail in the offences under Section 366, 376 (2) of IPC and Section 3 of SC/ST Act pertaining to F.I.R. No. 87/2008 of Police Station Kathumar, Distt. Alwar. 2. Heard the submissions advanced by the learned counsel for the petitioner, learned counsel for the complainant as also the learned Public Prosecutor appearing for the State and perused the relevant material on record. 3. It has been contended by the learned counsel that the petitioner has been falsely implicated later on in this case as his name initially did not figure in the First Information Report submitted by the prosecutrix herself before S.P. Alwar. At the time of recording police proceedings iqfyl dk;Zokgh the S.H.O. Police Station, Kathumar incorporated the name of Kunwar Pal Jatav, Sarpanch of Panchyat Samiti Masari. There is not even a shred of evidence collected against him by the Investigating Officer which may lead the Court to infer that he too was involved in a gang rape. The petitioner is a respectable man of the society who intends to contest the election of Member of Legislative Assembly and with a view to tarnish his image only, he has been made an , accused in this case. Hence, he deserves anticipatory bail in this case. 4. The learned counsel for the complainant has opposed the petition on the ground that the prosecutrix has categorically named the petitioner in her statement recorded under Section 164 of Cr.P.C. He has further contended that a petition was also filed by the petitioner in the High Court praying to quash the FIR of this case with a prayer that the FIR recorded against him may be quashed which has been dismissed the said petition vide order dated 1st September, 2008. The case is still pending investigation and it is not a case wherein a pre-arrest bail may be granted to the petitioner. 5. The learned Public Prosecutor has also opposed the bail petition on similar grounds. 6. Having reflected over the submissions made at the bar, perused the contents of FIR as also the statements recorded under Section 164 of Cr.P.C., it is noticed that the prosecutrix has categorically named the petitioner Kunwar Pal Jatav who happened to be involved in committing a gang rape upon her. 7. 6. Having reflected over the submissions made at the bar, perused the contents of FIR as also the statements recorded under Section 164 of Cr.P.C., it is noticed that the prosecutrix has categorically named the petitioner Kunwar Pal Jatav who happened to be involved in committing a gang rape upon her. 7. The Hon'ble Apex Court in one case reported by Dhananjay Mahapatra, TNN in times of India indiatimes.com has observed with regard to Pre Arrest bail as under:-The Pre Arrest bail provision in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of Police, is the most abused provision today. The Hon'ble Supreme Court's anguish stemmed from the fact that a discretionary power of the High Courts and Sessions Courts was being repeatedly invoked by persons accused of heinous offences which was not the intent of the relief giving provision. 8. Exasperated by the large number of pre-arrest bail applications flooding in the High Courts and even in the Supreme Court, a Vacation Division Bench comprising of Justice Arijit Pasayat and Justice PP Naolekar said that now rapists, triple murder accused and most corrupt have started seeking anticipatory bail making the provision one of the most abused sections of the Cr.P.C. 9. Recently on 10th October 2008 the Hon'ble Apex Court yet in another case (reported on news.yahoo.com) observed that: "A blanket order of bail may amount or result in an invitation to commit an offence or a passport to carry on criminal activities or to afford a shield against any and all types of illegal operations, which, in our judgment can never be allowed in a society governed by rule of law." 10. In the case of Gurubaksh Singh Sibba v. State of Punjab ( AIR 1980 S.C. 1632 ) the Constitution Bench of Hon'ble Apex Court has observed as under: "Apart from the fact that the very language of the statute complels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious inference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits say, a murder in the presence of the public. 11. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vaccum. 12. In the case of Pankaj v. State of Raj., (RLW 1996(1) Raj., 628) this Court has observed that the provision of Section 438 Cr.P.C., seeking Pre arrest bail sparingly used in rarest of the rare cases. Allegation of false implication and malafides must be made and proved by the accused. This provision can be invoked by the Court only when the accusation levelled against the petitioner is found to be totally false, baseless and groundless. In the present case, the prosecutrix has categorically named the petitioner in her statements who happened to be a member of gang rape criminals and ravished her against her will. The accusation against the petitioner does not seem to be false and groundless. In view of the aforesaid discussion, the petitioner cannot be allowed pre-arrest bail and his bail petition deserves to be dismissed. 13. In the result, the anticipatory bail petition filed on behalf of the petitioner Kunwarpal son of Shri Kishorilal, Jatav resident of village Masari, police station Kathumar (Alwar) under Section 438 of Cr.P.C. stands dismiss(MAHEed accordingly.Anticipatory Bail refused. *******