Victim X vs Yash @ Raja Rathore
2024 Latest Caselaw 12788 MP

Madhya Pradesh High Court

Victim X vs Yash @ Raja Rathore on 7 May, 2024

Author: Prakash Chandra Gupta

Bench: Prakash Chandra Gupta

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                                   ON THE 7 th OF MAY, 2024
                                         MISC. CRIMINAL CASE No. 39040 of 2023

                           BETWEEN:-
                           VICTIM X THROUGH POLICE STATION MAHILA THANA
                           DISTT. DHAR (MADHYA PRADESH)

                                                                                       .....APPLICANT
                           (SHRI BHASHKAR AGRAWAL, ADVOCATE)

                           AND
                           1.    YASH @ RAJA RATHORE S/O RAVINDRA
                                 RATHORE, AGED ABOUT 25 YEARS, OCCUPATION:
                                 BUSINESS R/O VILLAGE TANDA TEHSIL KUKSHI
                                 DISTT. DHAR (MADHYA PRADESH)

                           2.    STATE OF M.P. THROUGH P.S. MAHILA THANA
                                 DIST. DHAR (MADHYA PRADESH)

                                                                                .....NON-APPLICANTS
                           (SHRI VIBHOR KHANDELWAL, ADVOCATE FOR NON-APPLICANT NO.1)
                           (MS. VARSHA SINGH THAKUR, GOVERNMENT ADVOCATE FOR STATE)

                                 This application coming on for hearing this day, the Court passed the

                           following:
                                                              ORDER

Heard with the aid of case diary.

This application u/S 439(2) r/w 482 of Cr.P.C. has been filed by the applicant/prosecutrix for cancellation of bail granted to the non-applicant No.1/accused in MCRC No.19902/2023 vide order dated 15.06.2023, in connection with FIR/Crime No.10/2023 registered at Police Station Mahila Thana, District Dhar (MP) for commission of offence u/S 366, 376, 376(2)(n)

and 506 of IPC.

2. Prosecution story, in brief is that upon a report of the applicant, an FIR bearing Crime No.10/2023 for the offence u/S 366, 376, 376(2)(n) and 506 of IPC was registered against non-applicant No.1 - Yash @ Raja Rathore. The non-applicant No.1 had filed anticipatory bail application which was registered as MCRC No.19902/2023. This Court granted anticipatory bail on 15.06.2023 with the conditions that he shall comply with the conditions enumerated in sub- Section 2 of Section 438 of Cr.P.C. It is pertinent to reproduce here provisions of sub-Section 2 of Section 438 of Cr.P.C., which runs as under:-

"438(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section :

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months."

3. The case of the applicant is that non-applicant No.1 breached the condition No.(ii) of sub-Section 2 of Section 438 of Cr.P.C. that on 27.07.2023, when the applicant was roaming near the street of panchayat complex alongwith her brother, then the non-applicant No.1/ accused came

there, abused her in filthy language and pressurized her to withdraw her case. On the same day, FIR i.e. Crime No.201/2023 for the offence u/S 294 and 506 of IPC, was lodged by the applicant against non-applicant No.1at P/S Tanda, District Dhar. Since the non-applicant No.1 has breached condition of the bail therefore, the application be allowed and anticipatory bail granted to non- applicant No.1 be cancelled.

4. Learned counsel for the applicant submits that the non-applicant No.1 has violated the condition of bail and threatened the applicant to withdraw her case. He further argued that the registration of FIR for threatening the applicant for withdrawal of criminal case is sufficient to cancel the bail. He placed reliance on the case of Vipan Kumar Dhir V State of Punjab and Anr. [(2021) 15 SCC 518] and Bhagwan Singh V Dilip Kumar alias Deepu alias Deepak and Anr. [2023 SCC Online SC 1059].

5. Learned counsel for the non-applicant No.1 opposed the prayer of the applicant and submits that he has never violated the bail conditions which was granted in his favour. Merely registration of FIR, bail order cannot be cancelled. He placed reliance in the case of Vijay Singh Tomar V State of M.P. and Anr. [MCRC No.16626/2022 dated 01.11.2022].

6. I have heard learned counsel for the parties and perused the case diary.

7. On perusal of the record, it is revealed that upon intimation of the

applicant, an FIR bearing Crime No.201/2023 for the offence u/S 294 and 506 of IPC has been registered on 27.07.2023 at P/S Tanda, District Dhar against non-applicant No.1.

8. In the case of Vipan Kumar Dhir (Supra), the Apex Court has held in paragraph 9 as under:-

"9. At the outset, it would be fruitful to recapitulate the well

settled legal principle that the cancellation of bail is to be dealt on a different footing in comparison to a proceeding for grant of bail. It is necessary that "cogent and overwhelming reasons" are present for the cancellation of bail. Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail. This Court in Daulat Ram and others vs. State of Haryana [(1995) 1 SCC 349] observed that:

"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

9. In the case of Bhagwan Singh (Supra), the Apex Court has held in paragraph 14 as under:-

"14. It is also required to be borne in mind that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx

v. State of Telangana (2018) 16 SCC 511."

10. In the case of Vijay Singh Tomar (Supra), after considering many case laws of several High Courts as well as the Apex Court, this Court has held in paragraphs 10 and 11 as under:-

"10. In the case of State of Rajasthan Vs. Mubin and Ors. [2011 Crl. L.J. 3850], the Court has held as under;

9. The primary question which is to be considered by us in this case is as to whether the accused applicants had committed any offence, during the pendency of the appeal, on account of lodging of some first information reports. In other words, can it be said that a person has committed an offence when a first information report is lodged against him. In our considered opinion, merely lodging of a first information report, does not amount to commission of an offence and it is only accusation/allegation which can be said to be leveled against the accused person at the stage. As a matter of fact, the question as to whether an offence has been prim-facie committed or not is considered when an opinion is formed by the Court after applying mind on the material before it. That stage would come only at the time of framing of charge. It would be relevant to mention here that the legislature, in its wisdom, has clearly laid down the distinction in the provisions under Section 228, Cr. P.C. and the terminology used at the stages prior to it. The relevant provisions of the Code of criminal procedure is as under:-

"228. - Framing of charge - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct

the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused."

In other words, an accused can be said to have committed an offence only when a Court, after considering the material before it and hearing the parties, forms an opinion to that effect, at the time of framing of charge. It is only after judicious consideration by a Court and an opinion is formed by it for presuming the commission of an offence that an accused can be said to have committed an offence. Therefore, an offence can be said to have been committed only at the stage of framing of charge when the concerning Court forms an opinion for presuming that the accused has committed the offence and not at earlier point of time. The word 'commit' as per Johnson Dictionary means 'to be guilty of a crime."

In such view of the matter, merely on filing of first information reports against the accused applicants, it cannot be said that they had committed any offence during the period of bail. Consequently, they did not breach the conditions so imposed by the Court while granting order of bail on 12-9-2006.

10. For the aforesaid reasons, we are of the view that the accused applicants had not committed any breach of conditions imposed on them on 12.9.2006. Moreover, the accused applicants were awarded acquittal by the learned trial Court on 5.5.2006 and it is against the said judgment that the prosecution had preferred the present appeal in which they were given the benefit of bail, during the pendency of the same. The

accused applicants are in custody since 12.6.2008.

11. In the case of Samarendra Nath Battacharjee Vs. State of West Bengal and another [AIR 2004 SC 4207], the Apex Court has held that when already the bail has been granted by exercising powers vested with the Court, then sparingly the same has to be reviewed and cancelled. It is further held that the powers exercised by the Court should be exercised with caution and the Court has to keep in mind that grant of bail has to be exercised as if it should not be a punishment before trial. The same yardstick has been made applicable at the time of cancellation of bail. This proposition of law has been laid down in the case of Abdul Basit @ Raju and Ors. Vs. Mohd. Abdul Kadir Chaudhary and another [(2014) 10 SCC 754]."

11. In view of the above settled principle of law, it appears that mere lodging of FIR does not amount to commission of offence and it is only accusation which can be said to have been levelled against the accused person at that stage. Apart from that, there is nothing on record to show that the concerned Court, after applying its mind and the material available before it, framed the charges against non-applicant No.1 in respect of offence u/S 294 and 506 of IPC. In the instant case, there is no dispute that the applicant/prosecutrix has already been examined before the learned Trial Court and examination-of-chief of brother of the prosecutrix has also been recorded before the Trial Court and his cross-examination is yet to be recorded.

12. Therefore, it appears that present application sans-merit. Accordingly, the same is dismissed.

(PRAKASH CHANDRA GUPTA) JUDGE gp