Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1533 (RAJ)

Mahesh Kumar v. State of Rajasthan

2009-07-03

MAHESH BHAGWATI

body2009
Hon'ble BHAGWATI, J.—This order governs the disposal of second bail application filed under Section 438 of Cr.P.C. by Mr. Rohitashwa Kajla, Advocate on behalf of the appellants in FIR No. 249/2008 of police station Sadar Gangapur City, District Sawai Madhopur in the offences under Sections 148, 149, 323, 324, 341, 302 and 120-B of IPC. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the material available on record. 3. Learned counsel for the petitioners has canvassed that they have been falsely implicated in this case whereas both of them were not present on the site of occurrence when the incident of murder of Sardar Singh took place. In the beginning when the First Information Report was lodged, the name of the petitioners did not figure therein. It was later on during the investigation that the witnesses implicated them for their involvement in the commission of offence of murder and they are apprehending their arrest by the police as such they may be granted indulgence of anticipatory bail. 4. Learned Public Prosecutor has opposed the bail petition on the ground that the name of the petitioners figures in the FIR. The petitioners are found to have involved in the heinous crime of murder. After completion of investigation the police has filed police report against both of the petitioners under Section 299 of Cr.P.C., as they have been absconding since beginning. Thus, the petitioners do not deserve bail. 5. Having considered the submissions made at the bar and carefully perused the relevant material available on record, it is noticed that there being sufficient evidence against the petitioners, the police has arrived at a conclusion that the petitioners were involved in the commission of the offence under Section 302 of IPC and that was the reason that the report under Section 173(2) of Cr.P.C. has been filed against them in their absence, as they have been absconding since beginning. It is highly shocking that even the accused persons involved in the heinous offence of murder are craving indulgence of anticipatory bail. It is highly shocking that even the accused persons involved in the heinous offence of murder are craving indulgence of anticipatory bail. Exasperated by the large number of pre-arrest bail applications flooding in the High Courts and even in the Supreme Court, the Hon'ble Apex Court has observed in a case that the pre-arrest bail provisions in the Cr.P.C., have been inserted to save the innocent from the harassment at the hands of the police. The Hon'ble Apex Court has also observed that this newly inserted provision is in fact a relief giving provision to the innocent persons whereas now the rapists, triple murder accused and most corrupt have started seeking anticipatory bail, making the provision one of the abused sections of the Cr.P.C. This Court has repeatedly observed in numerous cases that the provisions of Section 438 of Cr.P.C. is to be sparingly used in rarest of the rare cases. The false implication and malafide must be proved by the accused from the perusal of the papers. The accusation made against the petitioners does not seem to be false and groundless. The petitioners do not deserve anticipatory bail in this case and the bail petition is liable to be dismissed. 6. In the result, the second bail petition filed under Section 438 of Cr.P.C. on behalf of the accused-petitioners Mahesh Kumhar S/o Shri Om Prakash and Kailash Kumhar S/o Shir Duli Chand stands dismissed.