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2012 DIGILAW 225 (RAJ)

Sorab v. State of Rajasthan

2012-01-25

RAGHUVENDRA S.RATHORE

body2012
Hon'ble RATHORE, J.—Being aggrieved of the order dated 22.1.2011 passed by the learned Additional Sessions Judge No. 2, Deeg District Bharatpur, granting anticipatory bail to the accused-respondent No. 2, the complainant petitioner has moved this application for quashing the same and cancellation of bail. 2. A case was registered (FIR No. 6/2009) at Police Station Jurhara District Bharatpur for the offences under Sections 143, 323, 341 and 307 IPC. The case of the complainant was that the accused-respondent had used fire arm, as a result of which the complainant sustained injuries and several pallets were found on his body. Thereafter the accused respondent, apprehending his arrest, filed an application for anticipatory bail before the learned Court below but without any success. However, on filing of second application for anticipatory bail by the accused-respondent, the learned Additional Sessions Judge No. 2, Deeg District Bharatpur allowed the same on 22.1.2011. Hence, the present application for cancellation of bail has been filed by the complainant. 3. The primary submission made by the counsel for the complainant-petitioner is that apart from the fact that the accused respondent was not entitled for anticipatory bail in the facts and circumstances of the present case, the learned Court below has committed gross illegality in allowing the second application for anticipatory bail filed by him. It has been submitted by the counsel for the complainant petitioner that the impugned order passed by the learned Additional Sessions Judge No. 2, Deeg District Bharatpur is wholly contrary to the principles of law laid down by the Larger Bench of this High Court in the case of Ganesh Raj vs. State of Rajasthan & Ors., 2005(2) WLC 327 = RLW 2005(2) Raj. 1048, wherein it has been held that under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/Additional Sessions Judge. 4. Contrary to it, the counsel for the accused respondent has submitted that the learned Court below has rightly granted anticipatory bail to the accused respondent after taking into consideration the facts and circumstances of the case as well as the nature of offence alleged against him. He has further submitted that there is no ground whatsoever to cancel the anticipatory bail granted to the accused respondent by the learned Court below on 22.1.2011 as the principles of law for cancelling of bail are not attracted. He has further submitted that there is no ground whatsoever to cancel the anticipatory bail granted to the accused respondent by the learned Court below on 22.1.2011 as the principles of law for cancelling of bail are not attracted. In support of his submission, the learned counsel for the accused-respondent has placed reliance on the case of (i) Subhendu Mishra vs. Subrat Kumar Mishra and another, 2000 SCC (Cri.) 1508, (ii) Ramesh Chand vs. State of Rajasthan and others, S.B. Criminal Misc. Cancellation of Bail Application No. 3163/2004 decided on 27.10.2005, (iii) Pandit Dnyanu Khot vs. State of Maharashtra and others, (2008) 17 SCC 745, (iv) Manish Pahadia vs. Smt. Sanju Bai and another, 2009(2) Cr.L.R. (Raj.) 1741, (v) Ravindra Saxena vs. State of Rajasthan, (2010) 1 SCC 684 . 5. It is an undisputed fact in the present case that an application for anticipatory bail filed by accused-respondent had already been dismissed earlier. The application for anticipatory bail which was decided by the learned Court below, by his impugned order dated 22.1.2011, was a second application for anticipatory bail (30/2011). In such view of the matter, the first and foremost question which arises for consideration of this Court is, whether second anticipatory bail application was maintainable before the learned Additional Sessions Judge No. 2, Deeg, District Bharatpur and could the accused respondent be granted anticipatory bail on 22.1.2011 in such an application for anticipatory bail. 6. The issue is squarely covered by the ratio had down by a Larger Bench of the High Court in the case of Ganesh Raj (supra) that so far as filing of second anticipatory bail application before the High Court is concerned, it can be done in a limited area i.e. to say new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. But under no circumstances, a second or successive bail application can be entertained by the Sessions Judge/Additional Sessions Judge. Therefore, the inevitable conclusion emerging from the principles laid down by the Larger Bench is that the second application for anticipatory bail before the learned sessions Judge/Additional Sessions Judge is not maintainable, much less to say that he can allow the same. 7. Therefore, the inevitable conclusion emerging from the principles laid down by the Larger Bench is that the second application for anticipatory bail before the learned sessions Judge/Additional Sessions Judge is not maintainable, much less to say that he can allow the same. 7. So far as the submissions made by the learned counsel for the accused-respondent in respect of the merits of the case, it would suffice to say that in the instant case the injured had sustained injuries by a fire arm which can prima facie attract, in a given case, the offence of attempt to murder under Section 307 IPC, irrespective of the fact whether such injury is dangerous to life or not. In the instant case, the accused respondent had used the fire arm resulting in injury on the person of the injured by pallets. 8. As regards the case law relied upon by the counsel for the accused respondent is concerned, the same is of no assistance to him for the simple reason that they had been decided in totally different fact situation. As for instance, in the case of Subhendu Mishra (supra), the Hon'ble Supreme Court was considering a case of cancellation of bail and it had held that the principles for cancellation of bail had been totally lost sight of by the High Court and it had over looked the distinction of the factors while canceling the bail of the accused in a mechanical manner. Accordingly, the order passed by the High Court was set aside and that of the Additional Sessions Judge was restored. In the case of Ramesh Chand (supra), a Single Bench of this Court had dismissed the application for cancellation of bail filed by the informant on the ground that nothing has been shown from the orders of the learned Court below that the judicial discretion exercised by it, while granting anticipatory bail to the accused, was erroneous or on any irrelevant consideration. However, it may be noted that the said judgment came prior to the decision of the Larger Bench in the case of Ganesh Raj (supra). Similarly, the case of Pandit Dnyanu Khot (supra) was decided in different facts and circumstances, as existed therein. However, it may be noted that the said judgment came prior to the decision of the Larger Bench in the case of Ganesh Raj (supra). Similarly, the case of Pandit Dnyanu Khot (supra) was decided in different facts and circumstances, as existed therein. It was a case where bail was granted to the accused under Section 167(2) Cr.P.C. and the same was cancelled by the Sessions Judge under Section 439(2) Cr.P.C. which was allowed and the order of the Magistrate was set aside. But the High Court had quashed the order passed by the Sessions Judge holding that the order passed by the Magistrate as an interlocutory order and as such it was not revisable. The Hon'ble Supreme Court said down that the High Court had erred in not referring to the provisions of Section 439(2) Cr.P.C. which specifically empowers the High Court or the Sessions Court to cancel bail in such circumstances. Further, in the case of Manish Pahadia (supra), the Sessions Judge granted anticipatory bail in favour of the accused whereas the High Court had dismissed the same and an SLP filed against the said order had also been dismissed by the Supreme Court. The question considered by the learned Judge was, as to whether the Sessions Judge should have granted anticipatory bail under Section 438 Cr.P.C. when the prayer to seek such bail was denied by the High Court. After considering the circumstances including that the respondents had been on bail for long and she was a lady who had herself sustained 35% to 70% burn injuries, it was held that the impugned order suffered from judicial indiscipline and impropriety but cancellation of bail at that juncture was not justified. The Hon'ble Supreme Court in the case of Ravindra Saxena (supra) was considering a case where it had granted liberty to the petitioner to apply for third bail application before the High Court and on filing of the same, the Court was to decide it on the same day. But the High Court had again dismissed the application for bail merely on the ground that the challan had been filed against the accused. It was in such a situation that the Hon'ble Court held that the High Court cannot dismiss the anticipatory bail on technicality that the challan has been filed and it can grant the same so long as the applicant has not been arrested. It was in such a situation that the Hon'ble Court held that the High Court cannot dismiss the anticipatory bail on technicality that the challan has been filed and it can grant the same so long as the applicant has not been arrested. In the instant case, the fact situation is totally different and the question is with regard to the justification of the order passed by the learned Sessions Judge in the second anticipatory bail application, in face of the specific law laid down by the Larger Bench. 9. For the aforesaid reasons, the submissions made by the learned counsel for the complainant petitioner that the learned Court below could not have allowed second anticipatory bail to the accused respondent in view of the principle laid down by the Larger Bench in the case of Ganesh Raj (supra) has force and deserves to be accepted by this Court. The stand taken on behalf of the accused respondent that the principles of cancellation of bail should be first looked into before accepting the application and the case law relied upon by him are not applicable to the facts and circumstances of the present case. The specific issue emerging herein is that the learned Court below could not have accepted the second application for anticipatory bail as the Larger Bench of this Court has so held and, therefore, the submissions made by the respondent cannot be accepted. The inevitable conclusion is that the impugned order passed by the learned Court below, allowing the second application for anticipatory bail, is illegal and cannot be sustainable in law. 10. Consequently, this application for cancellation of bail is allowed and the impugned order dated 22.1.2011, allowing second anticipatory bail application, is hereby quashed and set aside.