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2013 DIGILAW 1791 (RAJ)

Poonam Chand v. State of Rajasthan

2013-10-04

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - When a Court is going to dismiss an application filed under Section 438 Cr.P.C. or 439 Cr.P.C. on merits, then so many times, the petitioner prays for dismissal of his petition "as not pressed". When a petition is dismissed as "not pressed", virtually that is a dismissal of application or merits. Following ruling of the Hon'ble Supreme Court may be referred in support of my view: Kashmira Singh v. Duman Singh, (1996) 4 SCC 693 2. When an application under Section 439 Cr.P.C. is dismissed by the Court then after change of circumstances, a second application under Section 439 Cr.P.C. can be moved before the same Court or before the higher Court. State of M.P. v. Kajad, 2001 Cr.L.R. (SC) 566, may be referred here. But in case, application under Section 438 Cr.P.C., is dismissed once, even as "not pressed", then second application under Section 438 Cr.P.C. cannot be entertained by the Sessions Court as was held in the following rulings: (1) Suresh Chandra v. The State of Rajasthan, 2000-01 Cr.L.R. (Raj.) 249 (2) Mithhu v. The State of Rajasthan, 2000 Cr.L.R. (Raj.) 483 (3) Ganesh Raj v. State of Rajasthan, 2005(2) WLC (Raj.) (Full Bench) 327. 3. In Ganesh Raj's case (supra) it was specifically mandated by the Full Bench of the Rajasthan High Court that in no case, second application for anticipatory bail will be entertained by Sessions Judge or Addl. Sessions Judge. 4. In the case in hand, bail application filed under Section 438 Cr.P.C. by accused Smt. Ram Pyari and Smt. Seema was dismissed on 18.10.2012 by Sessions Judge, Bikaner, as "not pressed". Thenafter, second application under Section 438, Cr.P.C. was moved by same accused persons before the Sessions Judge, Bikaner and that application was accepted on 4.3.2013 by Sessions Judge, Bikaner. Then after, complainant Poonam Chand had challenged the veracity of order dated 4.3.2013 on the basis of the ruling of Ganesh Raj (supra), but prayer of complainant Poonam Chand was dismissed by Sessions Judge, Bikaner on 22.4.2013. The learned Sessions Judge, Bikaner was of the view that first application filed under Section 438 Cr.P.C. was dismissed as "not pressed", so the accused-petitioners were entitled to move second bail application before him. 5. I have heard both the parties in the matter. Complainant Poonam Chand has challenged the order dated 22.4.2013 as well as order dated 4.3.2013 passed by Sessions Judge, Bikaner. 5. I have heard both the parties in the matter. Complainant Poonam Chand has challenged the order dated 22.4.2013 as well as order dated 4.3.2013 passed by Sessions Judge, Bikaner. Apparently, the order dated 4.3.2013 passed by Sessions Judge, Bikaner was not in consonance with the ruling of Ganesh Raj (supra) of the Full Bench of the Rajasthan High Court. Hence, the order dated 4.3.2013 and the order dated 22.4.2013 passed by Sessions Judge, Bikaner relation to F.I.R. No. 200/2012 of Police Station, Sadar Bikaner under Section 420, 467, 468, 470 and 471 I.P.C. read with Section 120-B I.P.C. are not in consonance with the settled law. It is pertinent to mention here that accused-persons earlier had challenged the legality of the said F.I.R. also under Section 482 Cr.P.C. and their S.B. Cr. Misc. Petition No. 1870/2012 had already been dismissed by a Co-ordinate Bench of this Court on 18.2.2012. 6. In the circumstances of the case, order dated 2.2.4.2013 and order dated 4.3.2013 passed by Sessions Judge, Bikaner are hereby quashed and set aside. Though, accused-petitioners Smt. Ram Pyari and Smt. Seema have submitted bail bonds in the trial Court in compliance of the order dated 4.3.2013 passed by Sessions Judge, Bikaner but now since the order dated 4.3.2013 has been quashed, so both the accused-petitioners should either surrender before the trial Court or they may move an application under Section 438 Cr.P.C. before this Court as may be legally advised to them. If within fifteen days from today, the accused-petitioners do not surrender before the trial Court, then the trial Court will be free to procure their attendance by issuing warrants of arrest against them. A copy of this order be sent to the trial Court as well as to the Sessions Judge, Bikaner immediately by speed post.This "revision petition is accordingly accepted as indicated above. The stay petition also stands disposed of accordingly.Revision allowed. *******