Yashraj Bhardwaj Son Of Shri ... vs State Of Rajasthan
2022 Latest Caselaw 6375 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

  S.B. Criminal Miscellaneous II Bail Application No. 20655/2021

Yashraj Bhardwaj Son of Shri Ashwini Bharadwaj, Aged About 26
Years, Resident of 677-A, Ganesh Vihar, Niwaroo Road, Jhotwara,
Jaipur.
                                                         ----Accused-Applicant
                                    Versus
State Of Rajasthan, Through Public Prosecutor.
                                                                ----Respondent

For Petitioner(s) : Mr. Swadeep Singh Hora with Mr. Tara Chand Sharma For Respondent(s) : Mr. Ghan Shyam Singh Rathore, GA-

cum-AAG Ms. Pragya Pandey with Mr. Rishi Kumar Sharma for the complainant

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

28/09/2022 This application for second anticipatory bail has been filed by

the petitioner apprehending his arrest in connection with F.I.R. No.

365/2020 registered at Police Station Jawahar Circle, District Jaipur

City (East) for the offence(s) under Section(s) 376(2)(n), 323, 341 &

384 IPC.

Learned counsel for the petitioner submits that after

rejection of the first bail application by this Court vide its order

dated 13.09.2021, there are certain subsequent developments

which have material bearing on the issue entitling him to renew

his prayer for pre-arrest bail.

He submits that FIR in the instant case itself was not

maintainable as it was lodged on 17.07.2020 whereas, the

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prosecutrix had already filed a complaint on 18.02.2020 in the

Court of learned Chief Metropolitan Magistrate, Jaipur

Metropolitan-I with similar allegations which came to be

withdrawn by her on 17.07.2021 only after cognizance was

already taken therein. He submits that from the statement of Shri

Balveer Singh son of Shri Ratan Singh, an employee with the Hotel

Moti Mahal, Pushkar, District Ajmer, recorded under Section 161

Cr.P.C., it is apparent that the prosecutrix has visited the hotel

along with the petitioner on 27.02.2020 and has stayed there for a

day; i.e., after filing the complaint on 18.02.2020. He submits that

this fact itself demolishes the entire prosecution story. Learned

counsel, drawing attention of this Court towards the charge-sheet

No.109/2021 dated 07.05.2021 filed against Shri Kailash Chand

Bohra in FIR No.80/2021 lodged by the prosecutrix, submitted

that it reveals that the investigation done by Shri Kailash Chand

Bohra in the FIR lodged against the petitioner was tainted and

unfair. Referring to the status report dated 25.10.2021 submitted

by the Assistant Police Commissioner Adarsh Nagar, Jaipur (East)

in the Court of learned Chief Metropolitan Magistrate, Jaipur

Metropolitan-I, learned counsel submitted that it unequivocally

states that the petitioner has co-operated during the course of

investigation. He submitted that in two more FIRs i.e., FIR

No.68/2021 dated 25.01.2021 and FIR No.123/2021 dated

17.02.2021 lodged by the prosecutrix against him, the police after

thorough investigation submitted negative final report. He would

further submit that from a perusal of the contents of charge sheet

filed against him, it is apparent that it was a case of consensual

sex in between him and the prosecutrix and no offence is made

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out. He, therefore, prays for benefit of pre-arrest bail. To buttress

his submission that the petitioner is entitled to renew the prayer

for pre-arrest bail, learned counsel relies upon the judgments of

the Hon'ble Apex Court of India in the cases of Rani Dudeja Vs.

State of Harayana (2017) 13 SCC 555, Babu Singh & Ors.

Vs. State of U.P. (1978) 1 SCC 579, Ravindra Saxena Vs.

State of Rajasthan (2010) 1 SCC 684, Bharat Chaudhary

and Anr. Vs. State of Bihar and Anr., (2003) 8 SCC 77,

Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Anr.,

(2016) 1 SCC 152 and Shri Gurbaksh Singh Sibbia and Ors.

Vs. State of Punjab (1980) 2 SCC 565 and a judgment of full

Bench of this Court in the case of Ganesh Raj vs. State of

Rajasthan and Ors., 2005 SCC OnLine Raj 319.

Per contra, learned Government Advocate-cum-Additional

Advocate General submitted that there is no such substantial

change in circumstance or supervening facts after dismissal of the

first bail application by this Court vide its order dated 13.09.2021

on merit, which could entitle the petitioner to renew prayer for

pre-arrest bail. Placing reliance upon a judgment of Hon'ble Apex

Court of India in case of G.R. Ananda Babu Vs. State of Tamil

Nadu & Anr., (2021) SCC OnLine SC 176, learned Government

Advocate submitted that this successive bail application under

Section 438 Cr.P.C. is not maintainable.

Relying on a judgment of the Hon'ble Apex Court of India in

case of Kapil Agarwal & Ors. vs. Sanjay Sharma & Ors.,

(2021) 5 SCC 524, learned AAG submitted that the scheme of

Code of Criminal Procedure, 1973 (for brevity, "the Code of 1973")

permits lodging of an FIR as also a criminal complaint on the same

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set of allegation. He submits that in the instant case, after lodging

the FIR, the prosecutrix has withdrawn the complaint filed by her.

Inviting attention of this court towards the order sheets of the

learned Court in the complaint case filed by the prosecutrix, he

submitted that cognizance was never taken therein and the seal

dated 11.01.2021 to the effect the matter was transferred to the

Court of learned Additional Chief Metropolitan Magistrate-2, Jaipur

Metropolitan-I under Section 192 Cr.P.C. came to be affixed

inadvertently/erroneously. He would further submit that merely

because Shri Balveer Singh, an employee in the Moti Mahal Hotel,

Pushkar, has stated in his statement under Section 161 Cr.P.C.

that the petitioner and the complainant visited the hotel on

27.02.2020, i.e., after filing the complaint on 18.02.2020, it is of

no significance and help to the petitioner in the totality of

circumstances wherein, based on the statements of the

prosecutrix recorded under Sections 161 & 164 Cr.P.C and other

overwhelming evidence on record, charge-sheet has been filed

against him under Sections 376(2)(n), 323, 341, 384, 313 & 120-

B IPC and Sections 67 of the Information Technology Act, 2008.

With regard to contention of the learned counsel for the

petitioner that he has falsely been implicated on account of tainted

investigation by Shri Kailash Chand Bohra, learned Government

Advocate submitted that he remained Investigating Officer from

03.11.2020 to 14.03.2021 only and the investigation was carried

out by two Investigating Officers prior to that and one

Investigating Officer thereafter and on the basis of material

collected by them during course of investigation, complicity of the

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petitioner was found in the offence culminating into charge-sheet

against him.

Inviting attention of this Court towards the charge-sheet filed

against the petitioner, he submitted that the petitioner neither co-

operated during the course of investigation nor, he appeared

before the Investigating Officer even in pursuance of the notice

dated 12.08.2021 served upon him which was issued in pursuance

of direction of this Court dated 14.12.2020 in S.B. Criminal Misc.

Petition No.3581/2020. He would further submit that since the

petitioner is absconding, an order has been passed by the learned

trial Court to initiate proceedings under Sections 82 and 83 of the

Code of 1973. He, therefore, prayed for dismissal of the second

bail application.

Shri Rishi Kumar Sharma, learned counsel for the

complainant/prosecutrix submitted that she has already filed

protest petitions in the matter of negative final reports submitted

by the Investigating Agency in FIR No. 68/2021 and in FIR

No.123/2021 which are pending consideration.

Heard. Considered.

First this Court examines the scope of entertaining the

successive bail application under Section 438 Cr.P.C. after

dismissal of the first bail application on its merit.

In case of Rani Dudeja (supra), their Lordships, while

dealing with a situation wherein, the High Court had dismissed the

second petition filed by the accused-appellant after dismissal of

the first bail application as withdrawn, held as under:

"3.We are afraid, the stand taken by the High Court cannot be appreciated. The petition was for anticipatory bail and the one which had

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been filed earlier might have been withdrawn in a given situation, without inviting the Court to consider the same on merits. On change of circumstances, when another application under Section 438 Cr.P.C. was filed, the High Court should have considered the same on merits. The principle of res judicata could not have operated in an application for bail."

In case of Babu Singh (supra), it was held that an order

refusing an application for bail does not necessarily preclude

another, on a later occasion, giving more materials, further

developments and different condiserations.

In case of Ravindra Saxena (supra), their Lordships held

that the High Court erred in dismissing the successive anticipatory

bail without considering his case solely on the ground that the

challan has now been presented.

In case of Bharat Chaudhary (supra), it was held that

mere fact of taking of cognizance or filing of charge-sheet would

not preclude the Court from entertaining the application under

Section 438 Cr.P.C.

In case of Bhadresh Bipinbhai Sheth (supra), it was held

that 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.

In case of Shri Gurbaksh Singh Sibbia (supra), a

Constitution Bench has laid down general principles governing the

grant of pre-arrest bail.

In case of G.R. Ananda Babu (supra), a three Judges

Bench of the Hon'ble Apex Court of India held as under:

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"7. As a matter of fact, successive anticipatory bail applications ought not to be entertained and more so, when the case diary and the status report, clearly indicated that the accused (respondent No. 2) is absconding and not cooperating with the investigation. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge."

In case of Ganesh Raj (supra), a Full Bench of this Court

held that the second or subsequent anticipatory bail application

under Section 438 Cr.P.C. can be filed if there is a change in the

fact, situation or in law which requires the earlier view being

interfered with or where the earlier finding has become obsolute.

This is the limited area in which an accused who has been denied

bail earlier, can move a subsequent application. Second or

subsequent anticipatory bail application shall not be entertained

on the ground of new circumstances, further developments,

different considerations, some more details, new documents or

illness of the accused.

From the conspectus of the aforesaid judgments, the legal

position which emerges is that right of an accused to renew his

prayer for pre-arrest bail cannot be preclued only on the ground of

dismissal of first bail application on merit. If there is some

substantial change/development in the fact situation or in law

which requires reconsideration of the prayer, it can be entertained.

Now, the question arises as to whether this second bail

application meets the aforesaid requirement for its entertainment

and as to whether the petitioner is entitled for the benefit of bail,

if circumstances entitling the petitioner for renewal of prayer for

pre-arrest bail exist.

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Although, the first submission of the learned counsel for the

petitioner that FIR itself was not maintainable inasmuch as it was

lodged during pendency of the complaint containing the self-same

allegations against him which, after taking cognizance, was

withdrawn by her vide order dated 17.07.2021, does not

constitute a new fact or new development post dismissal of the

first bail application; in any case, would not furnish the petitioner

a ground for benefit of pre-arrest bail for the reasons; firstly, from

the order-sheets placed on record, this Court is not satisfied that

cognizance on the complaint filed by the prosecutrix was ever

taken and secondly, under the scheme of the Code of 1973, there

is no bar against lodging of an FIR along with the complaint/during

its pendency on the same set of allegations as has been held by

the Hon'ble Apex Court of India in case of Kapil Agarwal

(supra). Hence, in the considered opinion of this Court, the

petitioner is not entitled for benefit of bail on this ground.

The second circumstance relied upon by the learned counsel

for the petitioner for renewal of prayer is statement of Shri

Balveer Singh, the hotel employee, recorded under Section 161

Cr.P.C. submitted along with the charge-sheet post rejection of the

first bail application, although, may furnish the petitioner a ground

for renewal of prayer; but, is also of no help to the petitioner in

view of overwhelming evidence and material on record showing

his complicity in the offence for which he has been charge-sheeted

as it is trite law that marshalling or sifting of evidence is not

permissible at the stage of consideration of bail application.

This Court is not satisfied that the petitioner deserves benefit

of pre-arrest bail on account of tainted investigation by Shri

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Kailash Chand Bohra inasmuch as he has remained Investigating

Officer from 03.11.2020 till 14.03.2021 and before he joined the

investigation, two Investigating Officers have already conducted a

part of investigation wherein, they have recorded the statements

under Section 161 Cr.P.C. including the statement of the

prosecutrix under Section 164 Cr.P.C. and as per the factual

report dated 07.09.2020, i.e., before Shri Kailash Chand Bohra

joined the investigation, petitioner was found to be involved in the

offence. Even otherwise also, the last Investigating Officer, after

investigation, submitted charge-sheet against the petitioner

finding his involvement in the offence. In view thereof, this Court

is not satisfied that the petitioner has been roped in only on

account of tainted investigation by one of the Investigating

Officers.

This Court is not inclined to extend the petitioner benefit of

pre-arrest bail on the plea that he has cooperated during

investigation. The charge-sheet filed against him reveals that the

petitioner did not cooperate during the course of investigation and

he did not appear before the Investigating Officer despite receipt

of seven days prior notice dated 12.08.2021 which was issued in

pursuance of order of this Court dated 14.12.2020 passed in S.B.

Criminal Misc. Petition No.3581/2020. Even otherwise also, the

charge-sheet against the petitioner has been filed under Section

299 Cr.P.C., the learned trial Court has held the petitioner to be

absconder vide its order dated 20.05.2022 and has directed

initiation of proceedings under Sections 82 and 83 Cr.P.C.

Taking into consideration the totality of the circumstances,

the nature and gravity of allegation against the petitioner and the

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material contained in the charge-sheet; but, without expressing

any opinion on the merits of the case, this Court is not inclined to

extend the petitioner benefit of pre-arrest bail.

The second pre-arrest bail application is dismissed

accordingly.

(MAHENDAR KUMAR GOYAL),J

Sudha/25

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