Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1652 (RAJ)

Abdul Rauf v. State of Rajasthan

2014-10-10

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioners assailing the proceedings of the charge-sheet No.45/2011 filed after investigation of the FIR No.62/2011 registered at the Police Station Mahamandir, District Jodhpur and the order dated 3.12.2012 passed by the learned Addl. Chief Judicial Magistrate No.3, Jodhpur taking cognizance for the offences under Sections 147, 149, 436, 283, 427 of the IPC and Sections 3 and 4 of the PDPP Act and directing to summon the petitioners through warrants of arrest. 2. Learned counsel for the petitioners submits that in the notice to the first charge-sheet filed by the Police after initial investigation, the petitioners were not arrayed as accused. Thereafter, the Police has filed a subsequent chargesheet on 3.12.2012 i.e. after nearly 1½ years of the incident arraying the petitioners as accused for the offences under Sections 147, 149, 435, 283, 427 IPC and Sections 3 & 4 of the PDPP Act. The petitioners were not intimated about the proposed charge-sheet and the trial Court without any justification directed that the petitioners be summoned by issuance of warrants of arrest vide the order dated 3.12.2012. Learned counsel submits that ex-facie, the offence under Section 436 IPC is not made out in this case because the highest prosecution allegation is that a mob of persons set fire to a bus. He submits that a bus would not be covered under the definition of the building or dwelling house referred to in Section 436 IPC and the cognizance for the said offences is ex-facie, illegal. He submits that the petitioners were not informed of the charge-sheet proposed to be filed against them. They are totally innocent and have been falsely implicated in this case. He, therefore, prays that the direction issued by the trial court on 3.12.2012 to summon the petitioners by warrant of arrest be modified and the petitioners be directed to be summoned through bailable warrants so that the petitioners can appear before the court and establish their innocence. 3. Learned Public Prosecutor on the other hand opposes the submissions advanced by the learned counsel for the petitioners. 4. The petitioners were not charge-sheeted in the initial report submitted by the Investigating Officer under Section 173 Cr.P.C. 5. 3. Learned Public Prosecutor on the other hand opposes the submissions advanced by the learned counsel for the petitioners. 4. The petitioners were not charge-sheeted in the initial report submitted by the Investigating Officer under Section 173 Cr.P.C. 5. On going through the subsequent charge-sheet filed against the petitioners and some other persons after more than 1½ years of the incident, it is evident that the Investigating Officer has not mentioned that efforts were made to apprehend the subsequently charge-sheeted accused including the petitioners and they were not available for arrest. Thus, filing of the charge-sheet against the accused in absentia appears to be an attempt made by the Investigating Agency to cover up its own lack of efforts to apprehend the accused and the delay occasioned in filing of the result of investigation. Be that as it may, the question regarding the involvement of the accused in the incident would be examined by the competent court at the appropriate stage. The Police did not find the offence under Section 436 IPC made out against the accused but the court took cognizance of this offence as well because it had already taken this action and committed the case of the previously charge-sheeted accused to the Sessions Court. All the previously charge-sheeted accused are on bail. Thus, this Court feels that the direction to summon the petitioners through warrant of arrest is not justified. 6. Accordingly, the misc. petition is partly allowed. Whilst upholding the order taking cognizance, the direction to summon the petitioners through warrant of arrest is modified. Now, the trial court shall issue bailable warrants in the sum of Rs. 40,000/- to summon the petitioners. The petitioners are given liberty to surrender before the trial court within a period of four weeks from today and furnish bail bonds to the satisfaction of the trial court whereupon they shall be released on bail. The petitioners are at liberty to raise all their objections before the trial court at the stage of framing of charges.Petition partly allowed. *******