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2018 DIGILAW 478 (RAJ)

Jagdish S/o Ghisaram Jat v. State of Rajasthan

2018-02-08

DEEPAK MAHESHWARI

body2018
ORDER : 1. Heard learned counsel for the petitioner as also learned Public Prosecutor. 2. Counsel Mr. Kamal Kant Sharma puts up appears for the complainant Harphool. 3. This miscellaneous petition has been preferred under Section 482 CrPC to quash and set aside the order dated 15.12.2007 whereby learned trial Court rejected the application filed under Section 70(2) CrPC for converting the non-bailable warrant non bailable warrant qua the accused-petitioner. 4. Learned counsel for the petitioner submits that after investigation charge-sheet came to be filed against the accused Govind @ Raju. The petitioner was not arrayed as an accused in the same. Cognizance was taken by the trial Court on 19.8.2017 on the basis of the charge-sheet, against Govind @ Raju only. Application for taking cognizance against other persons also was filed on behalf of the complainant whereupon cognizance was taken against petitioner Jagdish for the offences under Sections 366 and 376/109 IPC and he was ordered to be called by way of arrest warrant. The application filed under Section 70(2) CrPC on behalf of the petitioner was rejected vide order dated 15.12.2017. Learned counsel for the petitioner submits that in the facts and circumstances narrated above, the application under Section 70(2) ought to have been allowed by the trial Court, as initially the charge-sheet was not filed against the accusedpetitioner. 5. He has placed reliance on the judgments rendered by Hon’ble Supreme Court :- (I)- Vikas Vs. State of Rajasthan, reported in (2014) 3 SCC 321 . (II)- Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, reported in (2007) 12 SCC 1 . 6. Reliance has also been placed on the order dated 8.1.2018 passed by this Court in S.B. Criminal Miscellaneous Petition No.5265/2017. 7. Learned counsel appearing for the complainant has vehemently opposed the prayer and contented that looking to the nature and gravity of the offence, alleged against the accused petitioner, he ought to have been called by way of arrest warrant only. He has further drawn attention of the Court to the order dated 20.1.2018 passed in Revision Petition No.39/2017 whereby the revision preferred by accused-petitioner Jagdish against the cognizance order was rejected. 8. Per contra, learned counsel for the petitioner submits that the order dated 20.1.2018 has been assailed by the petitioner by preferring petition under Section 482 Cr.PC which is pending in this Court. 9. 8. Per contra, learned counsel for the petitioner submits that the order dated 20.1.2018 has been assailed by the petitioner by preferring petition under Section 482 Cr.PC which is pending in this Court. 9. I have considered the rival submissions made by both the sides. In Vikas Vs. State of Rajasthan (supra) cognizance was taken under Section 319 Cr.PC against the petitioner for the offences under Sections 367, 366, 120-B and 376(2)(g) of IPC. The nature and gravity of the offence was similar in that case as in the matter in hand. Still, Hon’ble Apex Court held that nonbailable warrant should be issued to bring a person to the Court only when summons and bailable warrant would be unlikely to have the desired result. 10. It is further held that the court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued. The legal proposition is well settled by the judgment in the case of Inder Mohan Goswami (supra), which is being consistently followed by the Courts. No circumstance has been placed before this Court to show that there is likelihood that the accused petitioner will not come to the Court in compliance of the bailable warrant issued against him. There is no such situation either that he will avoid the Court proceedings intentionally. 11. Taking the relevant facts into consideration, this Court deems it proper to allow this miscellaneous petition and quash and set aside the order dated 15.12.2017. The accused-petitioner is directed to surrender before the trial Court on or before 20.2.2018. Accused-petitioner is directed to furnish a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the trial Court. 12. The miscellaneous petition is disposed of with the above direction.