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2024 DIGILAW 1166 (RAJ)

Dayaram S/o Bhajan Lal v. State of Rajasthan

2024-08-30

SAMEER JAIN

body2024
ORDER : 1. The instant petition is filed under Section 482 of Cr.P.C. assailing the impugned order dated 28.05.2024 passed by learned Court of Special Judge, Schedule Caste/ Schedule Tribe (PoA) Cases, Dausa, District Dausa in Criminal Miscellaneous Application no. 77/2024 whereby, the cancellation of bail application filed by the respondents under Section 439(2) of Cr.P.C. was allowed and the bail order dated 07.03.2024 was cancelled on the ground of subsequent addition of non-bailable offence under Section 302/120B, 342, 323, 364, 201 of I.P.C. in the Final Report (Charge-sheet). Moreover, arrest warrant against the accused-petitioner was issued. 2. The crux of the instant matter is that the Shri Asha Devi submitted a report qua her missing husband Shri Ramdayal Meena, and subsequently a MPR numbering 3/2024 was registered, on 08.02.2024 (Annexure-5). During the course of interrogation and investigation a dead body was found which was later on identified as Shri Santosh @ Sanjay’s body. Thereafter, a criminal F.I.R. was registered by Shri Ratan Lal, Assistant Sub-Inspector, for the offences under Section 143, 302, 201, 120B of I.P.C. 3. Resultantly, five accused persons including the petitioner were arrested on 12.02.2024. Thereafter, the then Investigating Officer Shri Prem Bahadur found a case against Santosh, Asha Devi, and Uma Shankar for the offence under Sections 143, 302, 323, 343, 365, 201, 120B, 109 of I.P.C. read with Section 3(2) (v) of the SC/ST Act and against Dayaram Meena, and Robin Singh Meena for the offences under Section 323, 342 of I.P.C. 4. Howsoever, the petitioner moved a bail application under Section 436 of Cr.P.C. and the same was allowed vide order dated 07.03.2024. Eventually, on account of the transfer of the erstwhile Investigating Officer, the matter was handed over to Shri Rajendra Kumar Meena who submitted a positive final report qua the five accused persons. 5. By and by, the Superintendent of Police considering the subsequently developed evidence i.e. call record, location, and online transactions (of Rs. 300/-) directed to file a positive final report qua the five accused, pertinently noting that against Daya Ram Meena and Robin Singh Meena, final report ought to be submitted for offences under Section 302/120B, 342, 323, 364, 201 of I.P.C. Thereafter, the learned Trial Court took cognizance accordingly on 08.05.2024 (Annexure-7). 6. 300/-) directed to file a positive final report qua the five accused, pertinently noting that against Daya Ram Meena and Robin Singh Meena, final report ought to be submitted for offences under Section 302/120B, 342, 323, 364, 201 of I.P.C. Thereafter, the learned Trial Court took cognizance accordingly on 08.05.2024 (Annexure-7). 6. In this backdrop, learned counsel representing the petitioner submitted that the bail was allowed considering the nature of offence i.e. bailable however, upon submission of challan with non-bailable offences, the said bail was cancelled as per the provisions of Section 439 (2) of Cr.P.C. and arrest warrant was issued qua the accused-petitioner, vide order dated 08.05.2024 (Annexure-8). It was further contended that once a person is enlarged on bail considering the provisions of non-cognizable, bailable charges, the provisions of Section 439 (2) ought not to apply. 7. Moreover, for cancellation of bail substantial evidence should be considered, nevertheless, in the instant matter the Superintendent of Police without due application of mind and overlooking the report made by the two Investigating Officers, directed to append charges of non-bailable offences qua the petitioner. 8. In this regard, learned counsel representing the petitioner had placed reliance upon the ratio encapsulated Chinmaya Sahu vs. State of Orissa in Crl. M.C. No. 2452/2023 and Parvinder Singh Khurana vs. Directorate of Enforcement in Criminal Appeal Nos. 3059-3062/2024. Lastly, learned counsel had averred that if deemed appropriate additional conditions may be imposed upon the petitioner and the instant petition be allowed. 9. Per contra, learned Public Prosecutor had vehemently opposed the instant petition and had submitted that the petitioner was only enlarged on bail with a caveat qua cancellation of bail upon further discovery of evidence, or if any offence of non-bailable nature is alleged against the petitioner. Moreover, the said bail order dated 07.03.2024 is a speaking order wherein, the aforementioned caveat was explicitly noted. 10. In this regard, learned Public Prosecutor had placed reliance upon the ratio encapsulated in Ms. X vs. State of Maharashtra and Others in Criminal Appeals No. 822-823/2023, and had supported the impugned order dated 28.05.2024 stating that the Court can cancel a bail order if whilst granting bail, material facts were not considered or upon development of subsequent relevant factors. 11. X vs. State of Maharashtra and Others in Criminal Appeals No. 822-823/2023, and had supported the impugned order dated 28.05.2024 stating that the Court can cancel a bail order if whilst granting bail, material facts were not considered or upon development of subsequent relevant factors. 11. Considering the forgoing facts and circumstances of the instant matter, arguments averred by the learned counsel representing the parties and upon a perusal of the record, this Court at this juncture deems it apposite to jot down undisputed fact: 11.1. That initially an F.I.R. was lodged against the petitioner along with four other accused for offences under Sections 323, 342 of I.P.C. (qua the petitioner and co-accused). 11.2. That vide order dated 07.03.2024 the accused-petitioner was granted the benefit of bail (filed under the provisions of Section 436 of Cr.P.C.) 11.3. That it is pertinent to note that the said order dated 07.03.2024 was passed with a caveat, considering the ongoing investigation. Therein, it was categorically stated that if at any subsequent stage of investigation of the case, any fact emerges proving a non-bailable offence against the accused-petitioner, the investigator shall be free to take action, to arrest/take back the accused in custody, as per law. 11.4. That considering the charges mentioned under the final report 08.05.2024, the learned Trial Court vide order dated 28.05.2024 exercising powers as per the provisions of Section 439(2) Cr.P.C. cancelled the bail grant of the accused-petitioner and set-aside the order dated 02.03.2024 and 07.03.2024. Withal, issued arrest warrant qua the accused-petitioner. 12. Ergo, considering the aforementioned facts of the instant matter, juxtaposing the averments raised by the learned counsel for both the sides, scanning the judgments cited at the Bar, this Court deems it appropriate to dismiss the instant petition for the following reasons: 12.1. The order dated 07.03.2024 categorically states a caveat whereby, the accused-petitioner ought to be arrested/taken back to the custody by the police authorities, upon subsequent finds in the matter. The order dated 07.03.2024 categorically states a caveat whereby, the accused-petitioner ought to be arrested/taken back to the custody by the police authorities, upon subsequent finds in the matter. The relevant extract from the order dated 07.03.2024 is reproduced herein-below: ^^vr% ÁkFkhZ@vfHk;qDr n;kjke iq= Hktu yky }kjk ÁLrqr ;g tekur ÁkFkZuk&i= vUrxZr /kkjk 439 n.M ÁfØ;k lafgrk Lohdkj dj vkns'k fn;k tkrk gS fd ÁkFkhZ@vfHk;qDr bl Ádj.k esa fu;r ÁR;sd rkjh[k isf'k;ksa ij mifLFkr gksrs jgus gsrq ,d yk[k :i;s jkf'k dk Lo;a dk ca/ki= o ipkl&ipkl gtkj :i;s jkf'k dh nks ekSrchj tekursa] bl U;k;ky; dh larqf"V ds ÁLrqr dj rLnhd djk ns rFkk og vU; fdlh Ádj.k esa okafNr u gks rks ;qDr dks bl Ádj.k esa tekur ij fjgk dj fn;k tkosA Ádj.k esa vkxkeh fdlh Hkh Lrj ij vuqla/kku ls ÁkFkhZ@vfHk;qDr ds fo:) vtekurh; vijk/k lkfcr ik;s tkus ds dksbZ rF; vfHkys[k ij vkus ij vuqla/kkudrkZ vfHk;qDr dks iqu% vfHkj{kk esa ysus dh dk;Zokgh fof/kuqlkj djus ds fy, Lora= jgsxkA** 12.2. Upon culmination of the investigation, the Superintendent of Police thereafter the concerned Magistrate after considering material evidences i.e. the tower location of the accused-petitioner, call details record, online transactions, and other information as received under Section 27 of the Indian Evidence Act, 1872, framed additional charges of offences under Section 302/120B of I.P.C. Resultantly, the learned Magistrate took cognizance of the said offence(s) and passed the order dated 28.05.2024. The aforementioned facts are categorically stated in the order dated 28.05.2024 in paragraph number 6. 12.3. It is also noted that the learned Trial Court while considering the instant matter for cancellation of bail has followed the due procedure of law and the dictum passed by various Courts in a catena of judgments. Moreover, specific reliance is placed upon the ratio enunciated in Rajendra Singh Vs. State of Rajasthan in S.B. Criminal Bail Application No. 52/2018. 12.4. This Court also places reliance upon the dictum enunciated in Myakala Dharamarajam and Ors. Vs. State of Telangana and Anr. (2020) 2 SCC 743 . The relevant portion of the afore-cited ratio is reproduced herein-below: 9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. Vs. State of Telangana and Anr. (2020) 2 SCC 743 . The relevant portion of the afore-cited ratio is reproduced herein-below: 9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail.” 12.5. Withal, in the ratio encapsulated in Pradeep Ram Vs. State of Jharakhand and Anr. (2019) 17 SCC 326 , under identical situation where an accused was bailed out in a criminal case, in which new offences were subsequently added, and the question arose as to whether it would be necessary to cancel the bail granted earlier for taking accused in the custody, a Division Bench took pain to examine the view taken by several High Courts, and held that the same is necessitated, and orders to arrest ought to be taken from the Court. The relevant extract from the afore-cited case is reproduced herein-below: 31. In view of the forgoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added. 31.1. The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. 31.2. The investigating agency can seek order from the court under Section 437(5) or 439 (2) Cr.P.C. for arrest of the accused and his custody. 31.3. [Ed: Para 31.3 corrected vide Official Letter dated 31.07.2020]. The court, in exercise of power under Section 437(5) or 439 Cr.P.C. can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail. 31.4. The court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail. 31.4. In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the court which had granted the bail.” 13. In light of the aforementioned, more specifically under the line of Pradeep Ram (Supra), this Court is of the view that the recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the report; is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move to the Court for seeking the custody of the accused by invoking the provisions of Section 437 (5) or Section 439 (2) of Cr.P.C. falling under Chapter XXXIII of the Statute. On such application being moved, the Court that may have released the accused on bail or the Appellate Court in exercise of special powers conferred on it, can direct the accused who was enlarged on bail, to be arrested and taken into custody. For the sake of brevity the relevant provision is reproduced herein-below: “Section 439 (2) - A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” 14. In summation of the above stated this Court is convinced that the order dated 28.05.2024 is sans irregularity and arbitrariness, as the same is passed after due consideration of the material facts and circumstances of the case, in accordance with law. Howsoever, hasten to add that this Court has not expressed any opinion on the merits of the case. The charge-sheet is already filed. If the petitioner moves an application under Section 439 Cr.P.C. before the appropriate Court, the same shall be considered on its own merits/demerits and in accordance with law, uninfluenced by the observations made hereinabove. 15. Howsoever, hasten to add that this Court has not expressed any opinion on the merits of the case. The charge-sheet is already filed. If the petitioner moves an application under Section 439 Cr.P.C. before the appropriate Court, the same shall be considered on its own merits/demerits and in accordance with law, uninfluenced by the observations made hereinabove. 15. Accordingly, the instant petition being devoid of merits stands dismissed. Pending applications, if any shall stand disposed of.