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2010 DIGILAW 317 (RAJ)

Narsi v. State of Rajasthan

2010-02-08

M.N.BHANDARI

body2010
JUDGMENT 1. - Heard learned counsel for the petitioner as well as the learned Public Prosecutor and perused the record of the case. 2. It is stated that this case was initially registered under Sections 143, 148, 149, 341, 323 and 447 of IPC and later on, it was taken up under Section 302 of IPC also. The bail application of one of the accused having similar, allegations was rejected by this Court under Section 439 of Cr.PC. vide its order dated 21.07.2009 in the bail application No. 5370/2009, Hanuman Sahay & Ors. v. State of Rajasthan . In this case, the trial Court granted anticipatory bail under Section 438 of Cr.PC. after knowing it that accused having similar case were denied benefit of bail by the High Court and accused herein were absconder. Ignoring the aforesaid fact and also the fact that specific allegations exists against the accused-non-petitioner for commissioning of offence, bail under Section 438 of Cr.P.C. was granted. The Hon'ble Supreme Court set out guidelines for grant of anticipatory bail and the present case does not fall within that category. The approach of the Court below was quite casual in granting the bail to an absconder in a.case under Section 302 of IPC. The benefit of anticipatory bail should not have been given to an absconder and a person against whom the specific allegation exists. In a recent case decided by the Hon'ble Apex Court in the case of Dinesh M.N. (S.P.) v. State of Gujarat, reported in 2008 (2) WLC (SC) Cri. 764 , the criteria for consideration of cancellation of bail has been laid down by the Hon'ble Apex Court and the present matter is covered by the law laid down by the Hon'ble Apex Court. Looking to the aforesaid, it is prayed by petitioner that the bail order may be cancelled. 3. Learned Public Prosecutor has no objection, if the bail so granted to the accused is cancelled. 4. None appears for respondent No.2 despite service. 5. I have considered the submissions made by the learned counsel for the parties and persued the record carefully. 6. It is a case registered under Sections 143, 148, 149, 341, 323 and 447 of IPC and later on, it was taken up under Section 302 of IPC. 4. None appears for respondent No.2 despite service. 5. I have considered the submissions made by the learned counsel for the parties and persued the record carefully. 6. It is a case registered under Sections 143, 148, 149, 341, 323 and 447 of IPC and later on, it was taken up under Section 302 of IPC. The specific allegation exists against the non-petitioners and rather non-petitioners case is similar to that of co-accused Hanuman Sahay and others, who were denied benefit of bail by this Court under Section 439 of Cr.PC. Ignoring the aforesaid fact as well as the fact that allegation exists against the accused, the Court below granted anticipatory bail to the accused. This is more so when, the accused was absconding and thereby the absconder has been given the benefit of anticipatory bail. In a case registered under Section 302 of IPC, the benefit of anticipatory bail can be granted in rare of rarest case more specifically in a case where no allegation exists, other than that, such benefit cannot be given to the accused. This Court while rejecting the bail application of Hanuman Sahay taken into consideration the following facts narrated by the learned Public Prosecutor, which are quoted hereunder : "Learned Public Prosecutor and the learned counsel for the complainant vehemently opposed the bail petition scathing the act of the petitioners who were armed with Kharwar, clubs and iron rods. The deceased sustained multiple fractures on frontal and parietal -region. Apart from deceased, six other injured persons also sustained injuries caused by the blunt objects. The petitioner Jagdish and Bhagwan Sahay are also constructively liable for the act of other accused persons and thus, they should not be granted bail at this stage." 7. Looking to aforesaid, I am of the view that a case is made out for cancellation of bail order dated 10.11.2009 so passed by the District and Sessions Judge, Jaipur City, Jaipur. Accordingly, the bail granted vide order dated 10.11.2009 in the bail application No. 1818/2009 in the FIR No. 157/2009, Police Station Jamvaramgarh is cancelled. 8. The prosecution is directed to take appropriate action for arrest of the accused, who is since absconding. 9. Accordingly, the application for cancellation of bail is allowed.Application for Cancellation of Bail Allowed. *******