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2016 DIGILAW 763 (RAJ)

Bhala Ram v. State of Rajasthan

2016-05-26

VIJAY BISHNOI

body2016
JUDGMENT : Vijay Bishnoi, J. 1. This bail application under Section 438 Cr.P.C. has been filed on behalf of the petitioners with a prayer for releasing them on anticipatory bail in connection with FIR No. 104/2012 of Police Station Lalgarh, Distt. Sri Ganganagar. 2. Brief facts of the case are that the petitioners were named as accused by the complainant in the above mentioned FIR for the offences punishable under Sections 307, 427, 323, 147, 148 and 149 IPC. During the course of investigation, the police has released the petitioners on bail since all the offences mentioned in the FIR are bailable. Later on, the police summoned the petitioners to appear before the trial court as they have proposed to file charge-sheet against the petitioners for the offences punishable under Sections 307, 427, 323, 147, 148 and 149 IPC. 3. It is noticed that the State has filed an application before the Sessions Judge, Sri Ganganagar with a prayer for cancellation of bail granted to the petitioners by the police while exercising powers under Section 436 Cr.PC However, later on, the said application has been rejected by the Sessions Judge, Sri Ganganagar on 21.4.2016. 4. The petitioners apprehend that on being their appearance before the trial court pursuant to the summons issued by the police, they may be sent to judicial custody by the trial court i.e. Judicial Magistrate, Sadulshahar because the police is going to file charge-sheet against them for the non bailable offences triable by court of Sessions and, therefore, the Magistrate may no: extend the bail of the petitioners. On the said apprehension, the petitioners have moved an bail application under Section 438 Cr.P.C. before the Sessions Judge, Sri Ganganagar with a prayer for releasing them on anticipatory bail however, the Sessions Judge, Sri Ganganagar has rejected the said bail application while observing that the police has simply asked the petitioners to appear before the Judicial Magistrate since it is going to file charge-sheet against the petitioners in the FIR No.104/2012 of Police Station Lalgarh, Sri Ganganagar and there is no indication that the petitioners will be arrested b; the police, therefore, the bail application under Section 438 Cr.P.C. preferred on behalf of the petitioners is not maintainable. 5. 5. Learned counsel for the petitioners has argued that the Sessions Judge, Sri Ganganagar has wrongly observed that in the above facts and circumstances of the case, the anticipatory bail application of the petitioners is not maintainable. Learned counsel for the petitioners has placed reliance on the order passed by this Court (Jaipur Bench) in Moti Lal & Ors. v. State of Raj., reported in 1987 RCC Sept. 347, Gheesya & Ors. v. the State of Rajasthan, reported in 1989 Cr.LR. (Raj.) 84, Chandra Pal Singh Choudhary v. Vijit Singh & Anr., reported in 2009(1) Cr.L.R. (Raj.) 560 and Banwari Lal & Ors. v. State of Rajasthan, reported in 2009(2) Cr.L.R. (Raj.) 1071 and argued that the anticipatory bail application under Section 438 Cr.P.C. is very much maintainable in the facts of the present case in view of law laid down by a Co-ordinate bench of this Court in Moti Lal and Gheesya's case (supra). 6. It is argued that the petitioners have been released on bail by the police and the application preferred by the State for cancellation of bail has been dismissed, therefore, the petitioners are entitled to be released on anticipatory bail in the event when the police is going to file charge-sheet against them for non bailable offences. 7. Per contra, learned Public Prosecutor as well as learned counsel for the complainant have opposed the bail application and argued that the anticipatory bail application filed by the petitioners is not maintainable and the same has rightly been rejected by the Sessions Judge, Sri Ganganagar. 8. Heard learned counsel for the parties, perused the impugned order as well as material available on record 9. It is not in dispute that initially an FIR No.104/2012 has been lodged against the petitioners at the Police Station Lalgarh, Distt. Sri Ganganagar for the non bailable offences and the police has released the petitioners on bail while exercising powers under Section 436 Cr.P.C. Now, the police after concluding the investigation has proposed to file charge-sheet against the petitioners for the non bailable offence under Section 307 IPC along with other offences. It is not in dispute that the bail cancellation application filed by the State before the Sessions Judge, Sri Gangangar with prayer to cancel the bail of the petitioner has been rejected vide order dated 21.4.2016. 10. It is not in dispute that the bail cancellation application filed by the State before the Sessions Judge, Sri Gangangar with prayer to cancel the bail of the petitioner has been rejected vide order dated 21.4.2016. 10. This Court is of the opinion that when the application for cancellation of bail of the petitioners has been rejected by the Sessions Judge, the bail granted to the petitioners will be deemed to be extended even if the police is going to file charge-sheet against them for non bailable offences. 11. This Court in Sukhpal v. State of Rajasthan, reported in 1988(1) RLW 283 has held that when a person is on anticipatory and some new offences have been added during investigation, then police cannot arrest an accused by adding a non-bailable offence. The police must seek an order from the Court for cancellation of bail already granted to a person. In Gheesya' case (supra), it has been field that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to well settled and if the court considers it proper then the bail grantee can be cancelled under Section 437(5) and Section 439(2) Cr.P.C. 12. In view of the law laid down by this Court in the above mentioned cases, I am of the opinion that the apprehension of the petitioners that or being their appearance before the trial court, when the police is going to file charge-sheet against them for the non bailable offences, they can be taker into custody by the trial court is unfounded and as observed earlier since the application of the State for cancellation of bail has already been rejected bi the trial court, it will be deemed that the benefit of bail extended by the police to the petitioners will continue. 13. It is made clear that whatever observations have been made by this Court are only to decide the bail already granted by the police to the petitioners and shall not be treated expression of any opinion on the merits of the case. 14. With these observations, this bail application under Section 438 Cr.P.C. is disposed of.