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2009 DIGILAW 438 (RAJ)

Jasveer Singh v. State of Rajasthan

2009-02-10

MAHESH BHAGWATI

body2009
Judgment Hon'ble BHAGWATI, J.—This order governs the disposal of bail application filed under Section 438 of Cr.P.C by Shri AK Shahdadpuri, Advocate on behalf of the applicant Jasveer Singh pertaining to Criminal Case No. 42/2007 registered in the offence under Section 138 of Negotiable Instrument Act which is pending in the Court of Judicial Magistrate Ist Class Kota (South). 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the material on record. 3. The learned counsel for the petitioner has contended that the petitioner, on 16th May, 2008, could not appear in the Court on account of his illness and he has been summoned through a warrant of arrest. Hence, he may be released on anticipatory bail. 4. The learned Public Prosecutor has opposed the bail petition. 5. Having reflected over the submissions made at the bar and carefully scanned the bail order dated 7th January, 2008 rendered by Additional Sessions Judge No.1, Kota, it is noticed that a criminal case has been pending against the petitioner for the offence under Section 138 of Negotiable Instrument Act in the Court of Judicial Magistrate (First Class), Kota (South). It is also found that final arguments of both the parties were heard on 3rd May, 2008 and the case was stood over to 14th May, 2008 for the pronouncement of judgment. There being a holiday on 14th May, 2008 and suspension of work by the Advocates on 15th May, 2008, the case was taken for hearing on 16th May, 2008. The accused did not appear on that date and because of his absence, his bail bonds were forfeited and the petitioner was ordered to be summoned through a warrant of arrest. The petitioner is not found to have substantiated the ground of his illness by any medical certificate. He has been evading his arrest and desires to seek anticipatory bail in a case which is pending trial before the Court. 6. 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. He has been evading his arrest and desires to seek anticipatory bail in a case which is pending trial before the Court. 6. 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. It is frequently observed that this discretionary power of the High Courts and Sessions Courts is being repeatedly invoked by persons accused of heinous offences and even in those cases pending trial before the Court which was not the intent of the relief giving provision. 7. “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.” The petitioner absented from the Court on a day when after hearing of final arguments of the parties, the judgment was to be pronounced by the Court. The arguments concluded on 3rd May, 2008 and judgment was to be pronounced on 16th May, 2008 but since then he has been absconding. I am afraid that the provisions of Section 438 of Cr.P.C. can be invoked by an accused already facing a trial of the case in the Court. In the instant case, the charge of non-bailable offence has been framed against the accused and the trial of the case is on the verge of its conclusion. Even in the case of bailable offences, Sub-section 2 of Section 436 of Cr.P.C. contemplates that where a person fails to comply with the conditions of bail bonds forfeited in pursuance of bail granted under Sub-Section 1, the Court may refuse to release that accused person on bail when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court. In the instant case also, the accused has failed to comply with the conditions of the bail bonds and he absented himself on 16th May, 2008, the date so fixed for pronouncement of judgment. I am of the firm view that the provisions of Section 438 of Cr.P.C. are not attracted in a case which is pending trial before the Court. I am of the firm view that the provisions of Section 438 of Cr.P.C. are not attracted in a case which is pending trial before the Court. That too, when he has failed to comply with the conditions of the bail bonds for his appearance furnished before the Court. 8. In view of the above legal position, the bail petition filed on behalf of the accused petitioner Jasveer Singh S/o Shri Sardar Singh under Section 438 of Cr.P.C. being bereft of merit deserves to be outrightly dismissed and it is dismissed accordingly.