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2009 DIGILAW 1781 (RAJ)

Dhan Singh v. State of Rajasthan

2009-08-07

MAHESH BHAGWATI

body2009
JUDGMENT 1. - This order governs the disposal of bail petition filed under Section 438 of Cr.P.C. by Mr.Vinod Kumar Sharma on behalf of the applicant Dhan Singh seeking anticipatory bail in the offences under Sections 302, 323, 341 read with Sections 149, 148 and 120B of IPC pertaining to FIR No.249/2009 of police station Gangapur City, Sadar, District Sawai Madhopur. 2. Heard the learned counsel for the petitioner, learned counsel for the complainant as also learned Additional Advocate General appearing for the State and perused the relevant material available on record. 3. Learned counsel for the petitioner has canvassed that the occurrence is alleged to have taken place on 24.11.2008. That day, the petitioner Dhan Singh was present on duty in Government Adarsh Secondary School, Bucholal, Panchayat Samiti Gangapur City, District Sawal Madhopur, where he was posted as a teacher. The first Investigating Officer of this case relied upon his plea of alibi and did not find him an accused and thus, no action was taken against him but later on another investigating officer viz. Additional Superintendent of Police found the petitioner Dhan Singh to be involved in the offence of murder of Sardar and challaned against him But, Additional Superintendent of Police never endeavoured to make his arrest, which tangibly evinces that he was not involved in the instant case and Addl. S.P. made the petitioner to be an accused because of some extraneous reasons. The petitioner is innocent, as such, he deserves to be granted indulgence of anticipatory bail. 4. Learned Additional Advocate General has vehemently opposed the bail petition on the ground that albeit, initially the investigation was conducted by Sub Inspector of police but on receipt of a complaint, the Superintendent of Police, Sawai Madhopur, transferred the investigation to one Additional Superintendent of Police for his verification, who found the involvement of the petitioner in the murder of Sardar. The police after completion of investigation, filed the challan under Section 299 of Cr.P.C. in the court declaring him to be absconding. Learned Additional Advocate General has fairly conceded that the then Circle Inspector Brij Mohan Devraj undeniably and undisputedly sheltered him and It was he who did not endeavour to make arrest of the petitioner. Learned Additional Advocate General further contended that certificate issued by the Head Master of Government Adarsh Secondary School, Bucholal was also not found to be true. Learned Additional Advocate General has fairly conceded that the then Circle Inspector Brij Mohan Devraj undeniably and undisputedly sheltered him and It was he who did not endeavour to make arrest of the petitioner. Learned Additional Advocate General further contended that certificate issued by the Head Master of Government Adarsh Secondary School, Bucholal was also not found to be true. An inquiry has been ordered to be initiated against him with regard to issuing a false certificate. The petitioner is very much involved in the instant case and he has been evading his arrest in the offence under Section 302 of IPC, hence, the petitioner does not deserve to be released on anticipatory bail and the petition should be dismissed. 5. Having reflected over the submissions made at the bar and carefully scanned the relevant material available on record, it is noticed that the petitioner initially obtained as per the arguments of learned Additional Advocate General, a false certificate from the Head Master of Secondary School, Bucholal and on the ground of plea of alibi, he wanted to be left out by the police in this case but later on when the Investigation was conducted by Additional Superintendent of Police, his involvement in the commission of offence of murder was found to be there. It is highly shocking that the petitioner kept on attending his duties In a school regularly for many months but the police never made any serious effort to execute his arrest and contra to It, it is the unblushing petitioner, who under the nose of police, was regularly attending the duty in the school while making a mockery of law and ridiculing the power of Police. See his valour that now he has come to seek anticipatory bail in this court. 6. 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 ball 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. 7. 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. 7. 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 P.P.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. 8. 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 judgement can never be allowed in a society governed by rule of law. 9. In the case of Gurubaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632 the Constitution Bench of Hon'ble Apex Court has observed as under apart from the fact that the very language of the statute compels 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. 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. 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. 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. 10. In the case of Pankaj v. State of Rajasthan, 1996 (1) RLW Raj. 628 this Court has observed that the provision of Section 438 of Cr.P.C. seeking pre arrest bail are sparingly used in rarest of the rare cases. Allegation of false implication and mala fides 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 petitioner has been named in the First Information Report and since the day of occurrence i.e., 24.11.2008, he has been playing a game of hide and seek. The police is also found to have sheltered him by not effecting his arrest. It is a slap on the whole police department that one accused involved in a hideous crime of murder is not being nabbed till date after the occurrence of 24.11.2008. In a State where the Rule of Law prevails, the petitioner has been attending the School regularly and teaching the students but the whole police department including Circle Officer, Additional Superintendent of Police and Superintendent of Police of the District have closed their eyes. The act of these officers seems to be contemptuous. If this is the state of affairs, I am sorry to say that these officers do not deserve to continue in police department. Either they should resign from their services or they should be removed from the police department by the Government. However adverting to this case, the accusation as levelled against the petitioner does not seem to be false, baseless and groundless and the petitioner does not deserve to be released on anticipatory bail. 11. In the result, the bail petition filed under Section 438 of Cr.P.C. on behalf of the petitioner Dhan Singh stands dismissed. 12. A copy of this order be sent to the Chief Secretary. 11. In the result, the bail petition filed under Section 438 of Cr.P.C. on behalf of the petitioner Dhan Singh stands dismissed. 12. A copy of this order be sent to the Chief Secretary. Principal Secretary Home and Director General of Police, Rajasthan for taking strict action against ail Station House Officers of Police Station Sadar, Gangapur City, Circle Officers, Additional Superintendent of Police and Superintendent of Police, District Sawai Madhopur who remained posted during a period with effect from 24.11.2008 till date. 13. Learned Additional Advocate General has filed the reply on behalf of the Officers namely Mr.Vikas Kumar, Superintendent of Police, Sawai Madhopur; Mr.O.P.Kataria, Addl.S.P. and Investigating Officer of this case; Mr.Sunil Bishnoi, Addl. S.P. Mr.Nazim Ali, C.O., Gangapur City; and Mr.Bhanwar Singh, ASI, Officer lncharge of police station Gangapur City, Sadar, present in the Court. 14. List this petition for hearing on the notices issued to them on 21.08.2009, as prayed.Bail Application Rejected - Action Against Police Officers Suggested. *******