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2023 DIGILAW 526 (RAJ)

Kishore v. State of Rajasthan

2023-02-15

CHANDRA KUMAR SONGARA

body2023
ORDER : Chandra Kumar Songara, J. Instant application has been preferred under Section 439 (2) of Code of Criminal Procedure, 1973 seeking cancellation of bail granted to the accused-respondent Nos.2 and 3, namely Devi Shankar and Kuldeep, under Section 438 of Cr.P.C. by this Court in S.B. Criminal Miscellaneous Bail Application No.17253/2022 vide its impugned order dated 29.11.2022, in F.I.R. No.101/2022 registered at Police Station Mantown District Sawai Madhopur for offences punishable under Sections 143, 323, 341, 307, 302 and 120-B of Indian Penal Code. 2. It is submitted by learned counsel appearing for petitioner (father of the deceased) that while granting anticipatory bail to the accused-respondents, the informant/complainant had no objection, as the matter was amicably settled between the parties. It is further submitted that in the statement recorded before Investigating Officer under Section 161 of Cr.P.C., the father of the deceased, who is petitioner in the present application, has stated that the accused respondent Nos.2 and 3 are involved in the alleged crime, inspite of that, the complainant stated about the settlement of case. It is also submitted that the aforementioned offences have been committed by the accused-respondent Nos.2 and 3 with other co-accused-persons. During the course of arguments, learned counsel appearing for the petitioner (father of the deceased), has also drawn attention of this Court towards the Police Statement of Banwari. Therefore, the present application be allowed and the liberty of anticipatory bail, so granted to the accused-respondents by this Court, be cancelled. 3. Learned Public Prosecutor appearing for the State has strongly opposed the bail cancellation application. 4. Heard. Perused the material made available on record. 5. In Prabhakar Tewari v. State of U.P. and Others., 2020 (2) Cr.L.R. S.C. 472, the Hon'ble Supreme Court has held as under :- "6. In the case of Mahipal v. Rajesh Kumar @ Polia and Anr. (Criminal Appeal No.1843 of 2019) decided on 5th December, 2019, a coordinate Bench of this Court has discussed the scope of jurisdiction of the appellate Court in setting aside an order of granting bail. The two key factors for interfering with such an order are non-application of mind on the part of the Court granting bail or the opinion of the Court in granting bail is not borne out from a prima facie view of the evidence on record. The two key factors for interfering with such an order are non-application of mind on the part of the Court granting bail or the opinion of the Court in granting bail is not borne out from a prima facie view of the evidence on record. In the case of Maulana Mohammed Amir Rashadi v. State of Uttar Pradesh and Another [ (2012) 2 SCC 382 ], a two Judge Bench of this Court declined to interfere with an order of the High Court granting bail to an accused having considered the factual features of that case." 6. Undisputedly, the accused-respondent Nos.2 and 3 namely, Devi Shankar and Kuldeep have been granted anticipatory bail under Section 438 of Cr.P.C. by this Court on 29.11.2022 in the presence of learned counsel for the petitioner/accused and the complainant. As per aforesaid order, the accused-respondents were not named in the F.I.R., have no criminal antecedents and the parties have settled their dispute amicably, as the learned counsel for the complainant pleaded no objection, while granting anticipatory bail to the accused-respondents. 7. Furthermore, in the present case, the accused-respondent Nos.2 and 3 were not named in the F.I.R. As per F.I.R., complainant- Rajkumar is an eye-witness, who himself sustained injuries in the alleged incident, Bhuddhi inflicted injury on the deceased-Veeru Bagariya with sword on his head, Vijay Rana inflicted injury on the face of deceased with sword and again Bhuddhi inflicted injury on the deceased's face. As per Post-Mortem-Report of the deceased, the cause of death was shock, as a result of ante-mortem head injury No.1. 8. Therefore, considering the submissions made by the learned counsel appearing for the petitioner and having regard to the facts and circumstances of this case, there has been no irregular or improper exercise of discretion on the part of the Court in granting bail to the accused-respondents. The material available do not justify arriving at the conclusion that the impugned order dated 29.11.2022 suffers from non-application of mind or the reason for granting anticipatory bail is not borne out from a prima-facie view of the evidence on record. The Court has exercised its discretion in granting bail to accused-respondents. No ex-facie error in the order has been shown by the petitioner, which would establish exercise of such discretion to be improper. 9. Consequently, the present anticipatory bail cancellation application is dismissed.