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2023 DIGILAW 1313 (RAJ)

Girraj Agarwal v. State of Rajasthan

2023-07-06

ANIL KUMAR UPMAN

body2023
ORDER : 1. Petitioner has filed this miscellaneous bail application under Section 438 Cr.P.C. 2. F.I.R. No. 488/2022 was registered at Police Station Vaishali Nagar, District Jaipur (West) for offences under Sections 420, 406 & 120-B of IPC. Later on, offences under Sections 467, 468 & 471 of IPC have also been added. 3. It is contended by counsel for the petitioner that the petitioner has falsely been implicated in this case and no case is made out against the petitioner. It is further contended that there is civil dispute between the petitioner and the complainant. It is further contended that alleged lease deeds (pattas) were kept in lien to fulfil the requirement of Township Policy, 2010 and lease deeds have now been released by JDA. Complainant can obtain the same from JDA after fulfilling the formalities. It is further contended that an application under section 37 of the Police Act was filed by the investigation agency before the concerned Magistrate for obtaining warrant of arrest against the petitioner but the same was dismissed by the Court vide order dated 17.12.2022 but without any change in circumstances, on 10.01.2023, warrant under section 37 of the Police Act has been obtained by the investigation agency only to file charge-sheet against the petitioner. It is further contended that charge-sheet in this matter has already been submitted before the court below and no custodial interrogation of the petitioner is required in this matter. It is further contended that in this matter, when charge-sheet was filed, proceedings under Section 82 & 83 of Cr.P.C. were not initiated and same are still pending which is evident from para No. 7 of the impugned order. Learned counsel for the petitioner placed reliance upon the following judgments: (i) Bharat Choudhary & Anr. v. State of Bihar & Anr. 2003 (8) SCC 77 (ii) Ravindra Saxena v. State of Rajasthan, 2010 (1) SCC 684 (iii) Bimla Tiwari v. State of Bihar & Ors. 2023 SCC Online SC 51 (iv) Amar Nath Neogi v. State of Jharkhand, 2018 (11) SCC 797 (v) Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1) SCC 694 4. v. State of Bihar & Anr. 2003 (8) SCC 77 (ii) Ravindra Saxena v. State of Rajasthan, 2010 (1) SCC 684 (iii) Bimla Tiwari v. State of Bihar & Ors. 2023 SCC Online SC 51 (iv) Amar Nath Neogi v. State of Jharkhand, 2018 (11) SCC 797 (v) Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1) SCC 694 4. Learned Public Prosecutor has opposed the bail application and submits that charge-sheet under Section 299 Cr.P.C. has been filed against the petitioner and, therefore, in view of law laid down by Hon'ble Apex Court in the case of Lavesh v. State (NCT of Delhi), 2012 (8) SCC 730 , this bail application is not maintainable. 5. I have considered the contentions advanced by both the parties. Apparently, in this case, now the police has filed the charge-sheet and, therefore, custodial interrogation is not required in this matter. It is also evident from record that only warrant under section 37 of the Police Act has been obtained by the police to file charge-sheet under Section 299 Cr.P.C., while proceedings under Section 82 Cr.P.C. are still pending before the concerned Magistrate and have not attained finality. 6. In my considered opinion, it cannot be held that anticipatory bail application is not maintainable as the petitioner was not declared absconder and no proclamation was issued against the petitioner till filing of the anticipatory bail application. Merely issuance of warrant under section 37 of the Police Act does not mean that the petitioner is absconding. In case of Bharat Choudhary (supra), it was held by Hon'ble Apex Court that application under Section 438 Cr.P.C. for grant of anticipatory bail will be maintainable after charge-sheet is filed or cognizance is taken. In case of Ravindra Saxena (supra), Hon'ble Apex Court considering the same situation held that after filing of the charge-sheet, anticipatory bail application can be entertained. In case of Amar Nath Neogi (supra), Hon'ble Apex Court has considered the identical situation and considering the fact that charge-sheet has been filed, directed the accused to appear before the trial court and submit his bail bonds. In case of Lavesh (supra), it was held by Hon'ble Apex Court that the person who is “absconding” and declared as “proclaimed offender” is not entitled to seek anticipatory bail application normally. In case of Lavesh (supra), it was held by Hon'ble Apex Court that the person who is “absconding” and declared as “proclaimed offender” is not entitled to seek anticipatory bail application normally. It was made clear that when the accused is absconding and also declared as “proclaimed offender”, case of granting anticipatory bail does not arise. As a rule of thumb, it cannot be said that absconder, against whom a proclaimation under Section 82 Cr.P.C. is not issued, is not entitled to get anticipatory bail. In the present case, admittedly, proceedings under Sections 82 & 83 Cr.P.C. have not attained finality and are still pending. Arrest should be the last option and should be restricted to those exceptional cases where arrest of the accused is imperative in the facts and circumstances of the case. The court must carefully examine entire material available on record and particularly, the allegations which have been directly attributed to the accused and these allegations are corroborative by other material and circumstances on record. In case of Lavesh (supra), while laying down the law, Hon'ble Apex Court has used word “normally” in reference to the anticipatory bail application, preferred by a “proclaimed offender.” Neither the provisions under Section 82 Cr.P.C. nor under Section 438 Cr.P.C. impose any restriction on the filing of anticipatory bail by the absconder. In case of Siddharam Satlingappa Mhetre (Supra), Hon'ble Apex Court laid down certain factors and parameters, which are required to be taken into consideration while dealing with the anticipatory bail. Some of the relevant factors are reproduced for ready reference: “(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made. (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence. (iii) The possibility of the applicant to flee from justice. (iv) The possibility of the accused's likelihood to repeat similar or other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The Courts must evaluate the entire available material against the accused very carefully. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused. (ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 7. Having regard to the totality of the facts and circumstances; considering the arguments advanced by learned counsel for both the parties especially the fact that the petitioner has not yet been declared “proclaimed offender” and charge-sheet has been filed, it is hereby directed that the petitioner shall appear before the trial court on or before 21.07.2023 and submit personal bond in the sum of Rs.1,00,000/- and two sound and solvent sureties of Rs.50,000/- each. Upon furnishing the bail bonds, learned trial court is directed to accept the same. Till 21.07.2023, petitioner shall not be arrested in connection with FIR No. 488/2022 registered at Police Station Vaishali Nagar, Jaipur (West). 8. With the aforesaid observations, this anticipatory bail application is disposed of.