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2012 DIGILAW 2114 (RAJ)

Naresh Kumar Banshiwal v. State of Rajasthan

2012-10-08

RAGHUVENDRA S.RATHORE

body2012
Hon'ble RATHORE, J.—This criminal miscellaneous petition has been filed by the petitioner for quashing of the order dated 5.4.2012 passed by the learned Additional Civil Judge (J.D.) and Metropolitan Magistrate No.15, Jaipur Metropolitan. 2. The instant case was initiated on a First Information Report (49/2011) lodged at Police Station Mahila Thana, Jaipur City (East) on 18.03.2011 for the offences under Section 498-A and 406 IPC. Basically, the report is a result of matrimonial dispute between the parties which had solemnised the marriage on 03.07.2009. After lodging of the report and during investigation, the petitioner apprehended his arrest and therefore, he moved an application for anticipatory bail. The petitioner first filed an application before the learned Sessions Judge but without any success as the same was dismissed on 08.04.2011. But thereafter, on a challenge having been made to the said order in an application (4181/2011) before the High Court, he was granted anticipatory bail on 09.05.2011. 3. Subsequently, the respondent herein moved an application for cancellation of bail (4635/2011) and the same came to be decided on 02.04.2012, whereby it was allowed and the anticipatory bail granted earlier to the accused petitioner was cancelled. In the meanwhile, on conclusion of investigation, the police had filed challan against the accused petitioner on 22.12.2011 and he was granted a regular bail under Section 437 Cr.P.C. by the learned Magistrate on the same day i.e. 22.12.2011 (Annexure-4). 4. After cancellation of bail by the High Court on 02.04.2012, an application for recalling the said order was filed on behalf of the accused petitioner (152/2012) for the reason that the application for cancellation of bail had been heard and decided in absence of his counsel. The said application came to be dismissed on 31.07.2012. As mentioned above, after filing of the challan, proceedings before the learned trial court continued. On 19.03.2012, the case before the trial court was ordered to be posted for 11.04.2012. But the matter was taken up by the learned court below on 05.04.2012 as the counsel for the respondent complainant had appeared before it alongwith the certified copy of the order dated 02.04.2012 passed by the High Court. The learned trial court had then cancelled the regular bail granted by it earlier and ordered that the accused be summoned by warrant of arrest. The learned trial court had then cancelled the regular bail granted by it earlier and ordered that the accused be summoned by warrant of arrest. It was also ordered that thereafter the case be listed on 11.04.2012 as had already been fixed earlier on 19.3.2012. It is on account of the issuance of warrant of arrest by the learned court below which has made the accused petitioner to now approach this Court by filing the present criminal miscellaneous petition and seeking to invoke the inherent powers of this Court against the order passed by the learned trial court on 05.04.2012. 5. The learned counsel for the parties have made submissions at length and have reiterated their respective stands. The learned counsel for the accused petitioner has sought to challenge the order primarily on the ground that the learned trial court has erred in passing the impugned order on 05.04.2012 by cancelling the regular bail granted by it earlier on filing of the challan. He has submitted that even if the order dated 2.04.2012 was passed by the High Court, much water had flown between the intervening period i.e. from filing of application for cancellation of bail on 16.5.2011 and passing of the said order, so much so, that investigation had been concluded and after filing of challan, a regular bail was granted by the court below under Sec. 437 Cr.P.C. He has also submitted that the order of cancellation dated 2.4.2012 was passed by the High Court when counsel for the accused petitioner could not appear and this gained significance because the other side had not brought to the notice of the High Court the intervening developments which were material for deciding the application for cancellation of bail. He has also submitted that the learned trial court had preponed the date in the case before it and without considering the matter in a proper, perspective and judicial manner had, all of a sudden issued the warrant of arrest against the petitioner after cancelling the regular bail granted by it. It has also been submitted that once a regular bail was granted to accused under Section 437 Cr.P.C. then the same cannot be deemed to have been cancelled on an order of cancellation in anticipatory bail, without passing of an appropriate order to that effect after giving an opportunity to the accused. It has also been submitted that once a regular bail was granted to accused under Section 437 Cr.P.C. then the same cannot be deemed to have been cancelled on an order of cancellation in anticipatory bail, without passing of an appropriate order to that effect after giving an opportunity to the accused. So far as granting of anticipatory bail to the accused earlier by the High Court is concerned, the same came into effect after the bonds were executed during the pendency of the investigation and thereafter the accused appeared before the trial court at the time of filing of challan and regular bail was filed which was accepted by it on 22.12.2011. He has also submitted that at the time of consideration of the bail cancellation application and on passing of the order dated 02.04.2012, the complainant non-petitioner had concealed the material facts which had taken place during the intervening period. Learned counsel for the petitioner has also submitted that the petitioner is a government servant. 6. On the other hand, the learned counsel for the respondent complainant has seriously opposed this miscellaneous petition filed by the accused petitioner. He has also submitted that the accused petitioner had got the anticipatory bail on 09.05.2011 after concealing the facts with regard to return of the dowry articles. It was for the reason that the High Court had subsequently cancelled the bail on 02.04.2012. Further, he has submitted that the learned court below has not committed any error in passing the impugned order dated 05.04.2012 as he had received the order of cancellation passed by the High Court and accordingly he had summoned the accused by way of warrants of arrest. Therefore, he has submitted that the petition filed by the accused petitioner deserves to be rejected. 7. This Court has considered the overall facts and circumstances of the case as well as the submissions made by the counsels for the rival parties and have given thoughtful and anxious consideration to the matter. There is no dispute about the fact that after filing of the first information report on 18.3.2011 and on apprehension of the arrest, the accused petitioner had moved application for anticipatory bail and the same was granted by the High Court on 09.05.2011. Thereafter, the investigation continued and on its conclusion, challan came to be filed on 22.12.2011. There is no dispute about the fact that after filing of the first information report on 18.3.2011 and on apprehension of the arrest, the accused petitioner had moved application for anticipatory bail and the same was granted by the High Court on 09.05.2011. Thereafter, the investigation continued and on its conclusion, challan came to be filed on 22.12.2011. As usual, the accused petitioner had appeared on the day of filing of challan and he was granted regular bail under Section 437 Cr.P.C. by the concerning court on the same day i.e. 22.12.2011. In so far as filing of the application for cancellation of bail by the complainant respondent is concerned the same appears to be on the sole ground of not returning the dowry articles but not on the ground of any breach of condition of the anticipatory bail or misuse of the liberty so granted to the accused petitioner. It is relevant to note that when the application for cancellation of anticipatory bail was decided by the High Court on 02.04.2012, no one had appeared on behalf of the accused non-petitioner therein. 8. No objection, whatsoever, seems to have comeforth from the side of the prosecution when the accused was granted bail by the court concerned on the date of filing challan. Accordingly, bail bonds were executed before that Court. Even subsequently no application had been filed raising grievance against granting regular bail on 22.12.2011, by filing any application for cancel-lation, etc. before the said court or the higher court. The learned trial court had, on filing of the challan, proceeded with the matter in the usual manner and the matter had been listed on 19.3.2012. Thereafter, it was ordered to be listed on 11.4.2012. But on appearance of the counsel for the respondent informant, abruptly the learned trial court took up the matter, prior to the date already fixed, on 5.4.2012 and without considering the proceedings which had taken place earlier particularly in respect of granting bail to the petitioner, had ordered with one stroke that the earlier bail granted by it stands cancelled. No information/notice was given to the accused. It had also ordered that the warrants of arrest be issued against the petitioner. Further, it was mentioned that now the matter be placed on the date which was already fixed i.e. 11.4.2012. 9. No information/notice was given to the accused. It had also ordered that the warrants of arrest be issued against the petitioner. Further, it was mentioned that now the matter be placed on the date which was already fixed i.e. 11.4.2012. 9. A similar situation had arose in the case of State of Rajasthan vs. Ajay Kumar Garg, 2006 WLC (Raj.) UC 180, wherein the prosecution had filed an application for cancellation of anticipatory bail granted by Sessions Court in case related to offences under Section 498-A, 406 and 120B IPC. While dismissing the application for cancellation, the High Court had held as under: “8. So far as the allegation of mis-representation with regard to deposit of dowry articles for seeking bail is concerned the same also does not hold water in view of the law propounded by this court in Satya Rani vs. The State of Rajasthan 1997 Cr.L.R. (Raj.) 544 that anticipatory bail cannot be refused simply because dowry articles have not been recovered. This apart, non-petitioners are said to have been enlarged on regular bail by the concerned court after filing of the charge-sheet.” 10. In the considered opinion of this Court, the learned trial court had not proceeded in accordance to law while passing the order of 05.04.2012 by preponing the earlier date so fixed by it for 11.04.2012. Whatever proceeding had taken place on 05.04.2012 could also be considered on the date already fixed i.e. 11.04.2012 and there was no just reason for the trial court to hush up in the matter and preponed a date which was already fixed and that too without any notice to the accused in this regard. Information or notice to the accused in present case was necessary for the simple reason that the learned trial court had itself granted him regular bail and according to it the accused was to appear on the date already fixed by it i.e. 11.04.2012. The fact remains that the learned trial court had passed the impugned order on 05.04.2012 without any intimation to the accused, much less to say in his presence or his counsel. We have been following the principle of law as enunciated by the Hon'ble Supreme Court, time and again, that liberty of the accused is a cherish right and warrant of arrest should be issued against him only after due care and consideration. We have been following the principle of law as enunciated by the Hon'ble Supreme Court, time and again, that liberty of the accused is a cherish right and warrant of arrest should be issued against him only after due care and consideration. The Hon'ble Supreme Court has also held that when different processes of summoning an accused are provided under the Statute, the court concerned is bound to follow the procedure of summoning the accused one by one and the mode of warrant of arrest is to come in the last and that too, when the other modes could not secure his presence. 11. In view of the above and taking into consideration the facts and circumstances of the case, particularly the facts with regard to the developments in the intervening period had also not been brought to the notice of the High Court when the application for cancellation of bail was decided on 02.04.2012. The trial court also did not take appropriate steps in accordance to law when the said order was presented before it, on behalf of the complainant respondents and had hastily passed the impugned order for summoning the accused by way of warrants of arrest at the first instance, loosing sight of the fact that it had already granted liberty of bail to the accused under Section 437 Cr.P.C. and no breach/ violation of that order had undisputedly committed by the accused. 12. Consequently, this criminal miscellaneous petition is allowed. The impugned order dated 05.04.2012 passed by the Additional Civil Judge (J.D.) and Metropolitan Magistrate No.15, Jaipur Metropolitan is quashed and set aside. The petitioner is directed to appear before the trial court on the next date fixed by it hereafter.