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2023 DIGILAW 2221 (RAJ)

Imran v. State of Rajasthan

2023-12-12

ANIL KUMAR UPMAN

body2023
ORDER : 1. The petitioner has filed the instant revision petition assailing the order dated 30.09.2022 passed by learned Addl. Sessions Judge, Kama District Bharatpur in Criminal Case No. 573/2022 whereby the application under Section 70(2) Cr.P.C. filed on behalf of the petitioner for converting standing warrant of arrest into bailable warrant has been dismissed. 2. Heard learned counsel for the petitioner and learned Public Prosecutor. 3. Brief facts of this case are that the complainant Nanga filed a complaint before the court of Judicial Magistrate, Kama inter alia alleging that his niece Mst. 'S', aged 16 years has been residing with her for the last two years. On 20.10.2010 at about 4:00-5:00 PM, the prosecutrix was returning home along with her aunt Kamla. At that time, a white colour Marshal vehicle was stationed near B.K. Haryana Crasher Machine. Nishar, Mojuda, Nihal, Rahis, Islamuddin, Chain and some other persons were standing there. They all tried to catch and forcibly take her niece away in the vehicle upon which, the prosecutrix and her aunt Kamla raise hue and cry. On hearing the noise, Rupa and Mahmood came there and tried to rescue the prosecutrix but could not succeed. All the aforesaid accused took her niece away in the Marshal vehicle. Kamla told about this incident at home. Thereafter, they made every possible efforts to recover the prosecutix. It was also alleged in the report that they also met husband of the Sarpanch of the Village Israel who assured them to hand over the girl. It was also alleged in the complaint that the accused persons have converted the religion of her girl and refused to give custody of the girl. The said complaint was forwarded for investigation under Section 156(3) Cr.P.C. and FIR No. 25/2011 came to be registered at Police Station Kama for offence under Section 366 IPC. 4. The police conducted investigation in the matter and filed charge-sheet against accused Nisar for offences under Sections 366 and 376 IPC. The concerned magistrate court after taking cognizance against the accused Nisar, committed the case to learned sessions court. The learned Sessions Court framed charges against the accused Nisar for offences under Sections 366, 368, 376 and 506 IPC. The accused pleaded not guilty and claimed trial. However, after recording statements of five prosecution witnesses namely PW.1 Nanga, PW.2 Mohd. Jahur, PW. The learned Sessions Court framed charges against the accused Nisar for offences under Sections 366, 368, 376 and 506 IPC. The accused pleaded not guilty and claimed trial. However, after recording statements of five prosecution witnesses namely PW.1 Nanga, PW.2 Mohd. Jahur, PW. Rupa and PW.4 Sumanlata and PW.5 Abdul Rehman at trial, ib 03.02.2012, an application under Section 319 Cr.P.C was filed on behalf of the prosecutrix before the learned sessions court with a prayer to take cognizance against Islamuddin, Nisar, Mojuda, Chain, Nihal, Rahis, Yakub, Imran, Anis, Jalis, Ajam as additional accused. On 27.03.2012, the prosecutrix moved another application under Section 319 Cr.P.C. to take cognizance against Deen Mohammad, the then SHO PS Jurhara as an additional accused. The learned Sessions Court vide its order dated 23.07.2012 allowed the application dated 03.02.2012 and took cognizance against the accused Islamuddin, Mojuda, Chain, Rahish and Nihal for offences under Sections 366, 368, 376 and 506 IPC and against accused Yakub, Imran, Anish, Jalis and Ajam for offence under Section 376 IPC and summoned them through bailable warrants in the sum of Rs. 10,000/- each. However, the another application dated 27.03.2012 to take cognizance against the then SHO PS Jurhara was rejected. Since the accused persons Jalish Pradhan, Imran, petitioner herein, Chain, Ajam, Yakub, Rahish, Mojuda and Mohd. Anish could not appear before the learned Sessions Court and bailable warrants received unserved, the learned court below directed initiation of proceedings under Sections 82 & 83 Cr.P.C and declared them proclaimed offender and issued standing warrant of arrest against the aforesaid accused persons including Imran, petitioner herein. The petitioner thereafter moved an application under Section 70(2) for converting the standing warrant of arrest into bailable warrants. However, vide order dated 30.09.2022, the learned sessions court rejected the application of the petitioner. Hence, this revision petition. 5. Learned counsel for the petitioner submits that initially, the police after conducting thorough investigation, filed charge sheet only against the accused Nisar for offences under Sections 366 and 376 IPC and the petitioner was not found involved in the alleged incident. Hence, this revision petition. 5. Learned counsel for the petitioner submits that initially, the police after conducting thorough investigation, filed charge sheet only against the accused Nisar for offences under Sections 366 and 376 IPC and the petitioner was not found involved in the alleged incident. He further submits that after recording statement of five prosecution witnesses, the prosecutrix moved an application under Section 319 Cr.P.C to take cognizance against some other accused persons including the present petitioner and as a result of acceptance of this application, the present petitioner has been booked in this case as an additional accused for offence under Section 376 IPC. He argues that from the proceedings of the learned trial court, it is clear that service of the bailable warrants were never effected upon the petitioner and thus, without fulfilling the requirements of the mandate of provisions of Sections 82 & 83 Cr.P.C., in a quite mechanical manner, he has been declared absconder in this case. The petitioner is a resident of Haryana and he had no knowledge about the proceedings. He further submits that there is nothing on record which suggests that any service messenger even went to Haryana for service of warrants. He submits that the petitioner is ready to face the trial He thus, prays that in the aforesaid facts and circumstances and in the interest of justice, the standing warrant of arrest issued against the petitioner vide order dated 07.01.20213 may be converted into bailable warrants. 6. Learned Public Prosecutor vehemently opposed the submissions advanced by the petitioner's counsel. He submits that after following due process of law, standing warrant of arrest has been issued against the petitioner. He also submits that the petitioner is intentionally avoiding the service of process and concealing himself. He thus, prays that the revision petition may be dismissed. 7. I have heard and considered the submissions advanced by both the parties and perused the material available on record. 8. Section 82 of Cr.P.C. provides for issuance of proclamation against absconding persons. He also submits that the petitioner is intentionally avoiding the service of process and concealing himself. He thus, prays that the revision petition may be dismissed. 7. I have heard and considered the submissions advanced by both the parties and perused the material available on record. 8. Section 82 of Cr.P.C. provides for issuance of proclamation against absconding persons. It says that if any court has reason to believe that any person against whom a warrant of arrest has been issued by it has absconded or concealed himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. 9. A bare perusal of the aforesaid provision makes it clear that the reason to believe must be supported by material on record. The material on record would be in the nature of service of summons on the petitioner or execution of warrant of arrest against the petitioner. Only by issuance of summons and warrant, it cannot be assumed the same were served on the petitioner. 10. From a bare perusal of the record, it transpires that there is no evidence available on record which shows that bailable warrants were served upon the petitioner. Further, there is no material available on record indicating that the learned court below recorded reasons/satisfaction as to the fact that that the petitioner is avoiding service or intentionally concealing himself to face the trial. Further, no report is available on record which even suggest that the proclamation notice was published in the state of Haryana. 11. Thus, looking to the totality of facts and circumstances of the case, without commenting anything on the merits of the case, this Court deems it appropriate to allow the instant revision petition. 12. Accordingly, the instant revision petition is allowed and the order dated 30.09.2022 passed by the learned Addl. Sessions Judge, Kama District Bharatpur in Criminal Misc. Case No. 573/2022 is hereby quashed and set aside and the warrant of arrest issued against him is converted into a bailable warrant in the sum of Rs. 10,000/-. The petitioner shall appear before the trial court on or before 05.01.2024 and submits personal bond in the sum of Rs. 1,00,000/- and two sound and solvent sureties of Rs. 50,000/- each. 10,000/-. The petitioner shall appear before the trial court on or before 05.01.2024 and submits 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 05.01.2024, the petitioner shall not be arrested in connection with FIR No. 25/2011 registered at Police Station PS Kama. 13. With the aforesaid directions and observations, this revision petition is disposed of.