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2011 DIGILAW 34 (RAJ)

Alam v. State of Rajasthan

2011-01-05

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.— Heard learned counsel for the petitioner, and the learned Public Prosecutor. 2. This second bail application has been filed under Section 438 Cr.P.C. Earlier the bail application filed under Section 438 Cr.P.C. was dismissed as withdrawn on 1.12.2010. On 1.12.2010 while dismissing the bail application, this court passed the following order: "Learned counsel for the petitioner without arguing on the merits of the case stated that he may be permitted to withdraw this bail application with the liberty that if he surrenders before the Magistrate concerned, his bail application should be decided as early as possible. The petitioner is permitted to withdraw the bail application. Accordingly, the criminal misc. bail application is dismissed as being withdrawn. However, if the accused petitioner surrenders and move bail application before the Magistrate concerned, his bail application should be considered in accordance with law." 3. It may be mentioned that the order passed by this court on the earlier bail application has not been complied with and again the petitioner has approached this Court for granting him the relief of anticipatory bail under Section 438 Cr.P.C. 4. It may also be mentioned that in this case one Shivji co-accused filed bail application under section 439 Cr.P.C. and the same was rejected by the co-ordinate Bench of this Court on 29.9.2009. After release of co-accused Rajesh on bail by the Addl. Sessions Judge, Tijara Distt. Alwar, the co-ordinate Bench of this Court released the co-accused Shivji under Section 439 Cr.P.C. by the order dated 12.11.2010. 5. The brief facts of the case are that an FIR was lodged by Manoj Kumar, Surveyor, Mines Engineer, Alwar on 10.8.2010 at Police Station Tapukra under Section 419, and 420 IPC alleging therein that two vehicles were found carrying Stones on forged Ravana. On asking the driver Shivji son of Ramratan of the vehicle No. HR 55 J 4496, he stated that the stones were loaded in his vehicle after receiving Rs. 400/- by one Alam, having Mobile No. 09672003660. Another vehicle recovered was found to be of one Deepak. On giving notice to him he stated that one Rajesh son of Ram Prakash was driving his vehicle. The police filed challan against the co-accused persons Rajesh and Shivji under Section 173 Cr.P.C. and under Section 299 Cr.P.C. against the accused petitioner for the offences under Sections 419, 420, 468, 471 and 120 B IPC. 6. On giving notice to him he stated that one Rajesh son of Ram Prakash was driving his vehicle. The police filed challan against the co-accused persons Rajesh and Shivji under Section 173 Cr.P.C. and under Section 299 Cr.P.C. against the accused petitioner for the offences under Sections 419, 420, 468, 471 and 120 B IPC. 6. The learned counsel for the accused petitioner contended that the petitioner has not committed any offence punishable with death or imprisonment for life. The accused petitioner is an innocent person and has not committed any offence as alleged in the FIR on the statement of the co-accused during the investigation. The police has already investigated the co-accused and nothing is required to be investigated from him. The accused petitioner has been falsely implicated in the case on the basis of statement of co-accused. 7. On the other hand, the learned Public Prosecutor opposed the bail application and stated that the accused petitioner was given liberty to surrender before the trial Court, but instead of surrendering he again filed application under Section 438 Cr.P.C. The second application for anticipatory bail under section 438 Cr.P.C. is not maintainable. The accused petitioner was already given opportunity of arguing the bail on merits and on the same facts this second bail application under Section 438 Cr.P.C. is liable to be rejected. The learned Public Prosecutor argued that in the FIR itself name of the present accused petitioner is mentioned and he is the main king-pin of the case. In these circumstances it was argued that the accused petitioner is not entitled for any relief under section 438 Cr.P.C. when his earlier application was rejected by this court and liberty was given to him for surrender before the trial court and that order of this Court has not been complied with and again this application for second anticipatory bail has been filed. The co-accused who were drivers of the vehicle were released only after arrest and hence the present bail application under Section 438 Cr.P.C. is liable to be rejected. 8. The co-accused who were drivers of the vehicle were released only after arrest and hence the present bail application under Section 438 Cr.P.C. is liable to be rejected. 8. After hearing the learned counsel for the accused petitioner and the learned Public Prosecutor, without commenting on the merits of the case in my view, the accused petitioner is not entitled for any relief under Section 438 Cr.P.C. In the FIR itself the name of the accused petitioner Alam is mentioned as the main accused for the commission of offence under Sections 419, 420, 468, 471, and 120 B IPC. The main allegation against the accused petitioner is that he prepared forged Ravana and handed over the same to the drivers of the vehicles and loaded stones in the vehicle. It was only on account of checking the vehicles it was found that the stones were carrying in the vehicles on the basis of forged Ravana. The forged Ravanas were given by the accused petitioner Alam and he has given his mobile number as 09672003660 to the driver of the vehicle. The accused petitioner was given liberty to surrender before the trial Court, but instead of surrendering he again filed application under Section 438 Cr.P.C. The second application for anticipatory bail under Section 438 Cr.P.C. is not maintainable. The accused petitioner was already given opportunity of arguing the bail on merits and on the same facts this second bail application under Section 438 Cr.P.C. is liable to be rejected. In the FIR itself name of the present accused petitioner is mentioned and he is the main king-pin of the case. In my opinion the accused petitioner is not entitled for any relief under Section 438 Cr.P.C. when his earlier application was rejected by this court and liberty was given to him for surrender before the trial Court and that order of this court has not been complied with and again this application for second anticipatory bail has been filed. The co-accused who were drivers of the vehicle were released only after arrest and hence the present bail application under Section 439 Cr.P.C. deserves to be rejected. Thus this second application for anticipatory bail is not maintainable. 9. For these reasons this second application for anticipatory bail filed by the petitioner under Section 438 Cr.P.C. is rejected.