Moti Singh vs State Of Rajasthan
2023 Latest Caselaw 1905 Raj

[2023/RJJD/005868]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Miscellaneous Bail Application No. 12246/2022

1. Moti Singh S/o Hanuman Singh, Aged About 62 Years, R/o Maharajpura Presently Reside At Ward No. 4 Near P.W.D. Guest House Nawa Dist. Nagaur.

(Presently Lodged At Dist. Jail Nagaur)

2. Hanumanram S/o Kishnaram, Aged About 50 Years, R/o Tiwari P.S. Mathaniya Dist. Jodhpur Presently Reside At Ward No. 4 Near P.w.d. Guest House Nawa Dist. Nagaur.

(Presently Lodged At Dist. Jail Nagaur)

3. Firoz Khan S/o Bhawru Khan, Aged About 42 Years, R/o Ward No. 10 Shubhas Colony Nawa Dist. Nagaur.

(Presently Lodged At Dist. Jail Nagaur)

4. Haroon Mohammad S/o Gafoor Khan, Aged About 40 Years, R/o Gorach Chowk Dist. Nagaur.

(Presently Lodged At Dist. Jail Nagaur)

5. Kuldeep Singh S/o Ratan Singh, Aged About 48 Years, R/o Pavera P.S. Nizampur Dist. Mahendargarh Presently Reside At Napla Road Nizampur Dist. Mahendragarh Haryana.

(Presently Lodged At Dist. Jail Nagaur)

----Petitioners Versus State Of Rajasthan, Through P.P.

                                                                  ----Respondent




For Petitioner(s)          :     Mr. Anand Purohit, Sr. Adv., assisted
                                 by Mr. Pankaj Gupta
For Respondent(s)          :     Mr. Shrawan Kumar, P.P.
                                 Mr. R.S. Choudhary for the
                                 complainant




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               HON'BLE MR. JUSTICE KULDEEP MATHUR
                                        Order
Reportable


   22/02/2023

The present misc. bail application under Section 439 Cr.P.C.

has been filed in connection with FIR No.102/2022 registered at

P.S. Nawa Shahar, District Nagaur for offences punishable under

Section 147, 148, 149, 341, 427, 302, 120B IPC and 3/25 Arms

Act.

The complainant lodged an FIR No.102/2022 at P.S. Nawa

Shahar, District Nagaur for offences under Section 147, 148, 149,

341, 427, 302, 120 B IPC and 3/25 Arms Act. As per the F.I.R., on

14.05.2022, the complainant's husband, Jaipal Poonia (deceased)

informed her that he will be going to court at 12:30 P.M. to attend

court proceedings. The complainant around 03:15 P.M., received a

phone call from Rajendra Kumar's (brother of the deceased)

mobile phone upon which the deceased on the phone, stated inter

alia that around 02:00-02:15 P.M., while he was returning from

the court after attending the proceedings, a Bolero car suddenly

stopped in front of his car, from which, two masked men along

with Moolchand Saini and Guda Salt Sarpanch, Virendra Saini

stepped out. They told Jaipal (deceased) that they have come to

teach him a lesson as he had picked enmity with Moti Singh and

MLA Mahendra Choudhary. Whereupon, they started vandalising

his car by giving lathi blows and fired gun shots at him. The

complainant was further informed on call that her husband Jaipal

(deceased) has been referred by Nawa Hospital to Jaipur. The

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deceased was taken to Jaipur by Rajendra, Radheshyam and Om

Prakash. At around 04:00 P.M., the complainant received the

information of passing away of his husband attributable to the gun

shots fired at him by the perpetrators.

As per the FIR, the deceased had in past received death

threats from Moti Singh, brother of MLA Mahendra Choudhary,

who had once attacked the deceased by entering into their house

along with 2-3 goons; the case is pending trial.

After filing of the FIR No.102/2022 at PS Nawa Shahar,

District Nagaur, the Investigating Agency arrested present

petitioners on 18.05.2022 for the offences under Section 147,

148, 149, 341, 427, 302, 120 B IPC and 3/25 Arms Act.

The complainant (wife of the deceased) after filing of FIR

No.102/2022 at PS Nawa Shahar, District Nagaur apprehended

that since the matter is politically sensitive, due to possibility of

political interference and other extraneous reasons, the police may

not investigate the matter fairly. Thus, S.B. Criminal Misc(Pet.)

No.3399/2022 (Sarita Choudhary vs. State of Rajasthan)

was preferred by her before a co-ordinate Bench this Court

seeking a direction upon Investigating Agency to conduct

investigation in a fair and an unbiased manner.

A co-ordinate Bench of this Court in S.B. Criminal Misc(Pet.)

No.3399/2022 (Sarita Choudhary vs. State of Rajasthan), vide

order dated 01.06.2022, while issuing show cause notices upon

respondents was pleased to pass the following interim order:-

"Counsel for the petitioner submits that the petitioner is wife of deceased and it is politically sensitive matter. She also apprehends politically interference.

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Issue notice to the respondents.

Counsel for the petitioner shall be at liberty to serve the respondents through their regularly appearing counsels.

List on 27.06.2022.

In the meanwhile, challan in this case shall not been filed without permission of Court"

While the S.B. Criminal Misc(Pet.) No.3399/2022 (Sarita

Choudhary vs. State of Rajasthan) was pending before co-ordinate

Bench this Court, an application (I.A. No.3/2022) came to be filed

by the Public Prosecutor stating inter alia that investigation in the

case is complete qua 9 accused persons and the challan is ready

for being filed, therefore, Investigating Agency may be permitted

to file the challan before competent criminal court while keeping

the same pending for remaining accused.

The co-ordinate Bench of this Court after hearing learned

counsel for the parties on the above-mentioned application (I.A.

No.3/2022), vide order dated 23.08.2022 modified the interim

order dated 01.06.2022 passed in S.B. Criminal Misc(Pet.)

No.3399/2022 (Sarita Choudhary vs. State of Rajasthan). The

order dated 23.08.2022 is reproduced herein below for sake of

ready reference:-

"1. The State has moved the instant application seeking permission to file charge-sheet against 9 accused persons, who have been arrested for their involvement in the offence of murder of petitioner's husband.

2. Mr. Sandeep Shah, learned Special Public Prosecutor submits that the investigation is complete qua 9 accused persons and the charge-sheet is ready for being filed in the Court.

3. While informing that two persons Krishna Kumar Jat and Rajesh Lidaria are absconding and the vehicle (Bolero) which was used for the purpose of offence in

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question is yet to be recovered, he prays that the charge-sheet be allowed to be filed, while keeping the same pending for remaining accused.

4. He submits that while pressing their prayer for release on bail the arrested accused persons have prayed that they be given benefit of default bail, as the charge-sheet has not been filed within the prescribed period. With an apprehension of release on technical ground, learned Senior Counsel prays that the Investigating Officer be permitted to file charge- sheet, else the accused persons would be granted default bail in view of the fact that the charge-sheet has not been filed.

5. It is to be noted that by order dated 01.06.2022, a coordinate Bench of this Court had directed that challan shall not be filed without permission of the Court.

6. This Court is of the firm view that the accused persons cannot take advantage of the fact that the charge-sheet has not been filed, as by way of interim order, the Investigating Officer was restrained from filing the charge-sheet.

7. Having heard learned counsel for the parties at length and upon perusal of the relevant material, this Court permits the Investigating Officer to file charge- sheet against the persons so far found guilty.

8. Application stands disposed of accordingly.

9. Mr. Choudhary learned counsel for the petitioner argued that the police is not conducting proper and fair investigation because of the involvement of local MLA-respondent No.9. 10. On 26.07.2022, this Court had issued direction to the Investigating Officer to obtain call details including location of other phone kept by Moti Singh-the main accused, who happens to be brother of respondent No.9.

11. The case diary along with such details has been produced before the Court.

12. During the course of submissions, Mr. Shah has informed that the Investigating Officer has interrogated respondent No.9 and nothing substantial has been revealed or come on record so as to implicate him in the alleged offences.

13. On perusal of the case diary including the interrogation note, this Court does not find any evidence or incriminating evidence pointing towards direct involvement of respondent No.9 so far.

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14. Mr. Choudhary, learned counsel for the petitioner prays for and is granted two weeks' time to complete his instructions and to bring on record or highlight any material/evidence to demonstrate active or passive role of respondent No.9 in the matter

15. List this case on 13.09.2022, as prayed."

[Emphasis supplied]

The interim order dated 01.06.2022 was modified by co-

ordinate Bench of this Court vide order dated 23.08.2022,

allowing the Investigating Officer to file challan/charge-sheet

against the persons so far found guilty.

At this stage, it is apposite to note that an application under

Section 167(2) Cr.P.C. was filed by the petitioners before the court

of Additional Chief Judicial Magistrate, Nawa Shahar on

16.08.2022 seeking default bail in their favour on the ground that

they have been in custody for a total period exceeding 90 days

and yet investigation has not been completed and challan has not

been filed within the prescribed period. The court of Additional

Chief Judicial Magistrate, Nawa Shahar, vide order dated

24.08.2022, rejected the default bail application filed on behalf of

the petitioners.

The petitioners thereafter filed an application before the

court of Additional Sessions Judge, Kuchaman City, District Nagaur

under Section 439 Cr.P.C seeking bail on various grounds.

However, after hearing the parties, the court of Additional

Sessions Judge, Kuchaman City, District Nagaur rejected the bail

application filed on behalf of the petitioners vide order dated

25.08.2022.

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The Investigating Agency on 26.08.2022, filed challan

/charge-sheet against present petitioners before competent

criminal court.

Learned counsel for the petitioners while arguing present

application filed under Section 439 Cr.P.C. submitted that an

application for default bail under Section 167(2) Cr.P.C. was filed

before the court of Additional Chief Judicial Magistrate, Nawa

Shahar but the same was rejected on 24.08.2022, whereupon, a

regular bail application under Section 439 Cr.P.C. was filed before

the court of Additional Sessions Judge, Kuchaman City, District

Nagaur.

Learned counsel submitted that while seeking bail in relation

to F.I.R. No.102/2022 from the court of court of Additional

Sessions Judge, Kuchaman City, District Nagaur under Section 439

Cr.P.C., the petitioner had not challenged the validity of order

dated 24.08.2022, therefore, the regular bail application under

Section 439 Cr.P.C. ought to have been decided without getting

influenced by the order dated 24.08.2022 passed by the court of

Additional Chief Judicial Magistrate, Nawa Shahar.

Learned counsel further submitted that the petitioners have

been falsely implicated in the present case; challan has already

been filed; trial is likely to take sufficiently long time; therefore,

the petitioners deserve to be enlarged on bail.

In the alternative, learned counsel for the petitioners

submitted that charge sheet/challan against the petitioners was

filed after completion of 90 days from the date of their arrest,

therefore, they are entitled to be released on bail, in view of the

[2023/RJJD/005868] (8 of 16) [CRLMB-12246/2022]

provisions of Section 167(2) Cr.P.C. Learned counsel submitted

that admittedly, the present petitioners were not impleaded as

respondents in S.B. Crl. Misc (Pet.) No.3399/2022, therefore, the

interim order dated 01.06.2022 passed by the co-ordinate Bench

restraining investigating agency from filing challan without the

permission of the court in the case, cannot be read against their

interests. Reliance was placed on judgments rendered by Hon'ble

the Supreme Court in the cases of M. Ravindran vs. The

Intelligence Officer, Directorate of Revenue Intelligence reported

in 2021 (2) SCC 485, Satender Kumar Antil vs. Central Bureau of

Investigation & Anr. reported in 2022 AIR (SC) 3386, [email protected]

Jimmy Pravinchandra Adatiya vs. State of Gujarat reported in

2022 AIR (SC) 4641, S. Kasi vs, State through Inspector of Police

Samaynallur Police Station Madurai District reported in 2020 AIR

(SC) 2921, Achpal @ Ramswaroop & Anr. vs. State of Rajasthan

reported in 2018 AIR (SC) 4647 and Fakhrey Alam vs. State of

Uttar Pradesh reported in 2021 AIR SC(Supp) 821.

It was argued that since the court of Additional Sessions

Judge, Kuchaman City, District Nagaur enjoys revisional

jurisdiction over the court of Additional Chief Judicial Magistrate,

Nawa Shahar, therefore, in order to impart substantial justice, the

order dated 25.08.2022 passed by court of Additional Sessions

Judge, Kuchaman City, District Nagaur may be treated as an order

of revisional court and the present bail application filed under

Section 439 Cr.P.C. may be treated as a criminal revision petition

against the order dated 25.08.2022 and for that purpose, the

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petitioners have already moved an application (I.A. No.1/22) in

the present bail application.

Per contra, learned Public Prosecutor and learned counsel for

the complainant vehemently submitted that the order dated

25.08.2022 has been passed by the court of Additional Sessions

Judge, Kuchaman City, District Nagaur after taking into

consideration seriousness of the offences for which petitioners

have been arrested and other material placed before it. Learned

counsel submitted that evidence collected during investigation,

prima facie shows involvement of the present petitioners in the

case.

Learned counsel submitted that a co-ordinate Bench of this

Court vide order dated 01.06.2022 in S.B. Criminal Misc(Pet.)

No.3399/2022 had restrained Investigating Agency from filing

challan in the case without permission of the Court. Faced with the

aforesaid situation, despite completion of investigation qua 9

accused persons, the challan/charge-sheet could not be filed

within the prescribed period. Learned counsel submitted that the

co-ordinate Bench while deciding I.A. No.3/2022 in S.B. Criminal

Misc(Pet.) No.3399/2022 was conscious of the fact that challan

against accused persons could not be filed in view of the interim

order dated 01.06.2022 and therefore, while permitting

investigating officer to file challan/charge-sheet against the

persons found guilty, clearly observed that the accused persons

cannot take advantage of the fact that the challan/charge-sheet

has not been filed within the prescribed period. Learned counsel

submitted that petitioners are neither entitled for regular bail

[2023/RJJD/005868] (10 of 16) [CRLMB-12246/2022]

under Section 439 Cr.P.C. nor are they entitled for default bail

under Section 167(2) Cr.P.C.

Learned counsel for the complainant- Shri Ramavatar Singh

submitted that the application (I.A. No.1/2022) moved by the

petitioners to treat present bail application filed under Section 439

Cr.P.C as a revision petition against the order dated 25.08.2022 of

Additional Sessions Judge, Kuchaman City, District Nagaur for the

purpose of default bail cannot be accepted in view of the fact that

learned Additional Sessions Judge, Kuchaman City, District Nagaur

had not examined the order dated 24.08.2022 passed by court of

Additional Chief Judicial Magistrate, Nawa, District Nagaur

rejecting application under Section 167(2)(a)(i) Cr.P.C. in exercise

of its revisional jurisdiction. According to learned counsel, while

deciding a revision petition, this court is required to examine

legality and veracity of order passed by learned Sessions Judge,

whereas while hearing bail application, this Court exercises

jurisdiction which is co-extensive with that of learned District and

Sessions Judge and therefore, without examining legality and

veracity of the order, a different view can be taken while granting

or rejecting the bail after taking into consideration the facts and

circumstances of the case. On the strength of these submissions,

learned counsel implored the court to reject I.A. No.01/2022 filed

in the present bail application.

Reliance was placed on judgment rendered by this Court in

the case of Bhanwar Singh vs. State of Rajasthan (S.B. Crl.Misc II

Bail Application No. 7695/2021), decided on 12.07.2021.

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Lastly, learned counsel submitted that petitioners have not

approached this Court with clean hands and have concealed

material facts essential for adjudication of the present bail

application. Learned counsel submitted that during pendency of

the present bail application, second default bail application under

Section 167(2) Cr.P.C was filed by the petitioners before the court

of Additional Chief Judicial Magistrate, Nawa, District Nagaur

which has been rejected vide order dated 02.09.2022. Being

aggrieved and dissatisfied with the order dated 02.09.2022, a

Criminal Revision Petition No.24/2022 was filed before court of

Additional Sessions Judge, Makrana, District Nagaur, having

additional charge of the court of Additional Sessions Judge,

Kuchaman City, District Nagaur. In the criminal revision petition

No.24/2022, not only the legality and propriety of order dated the

02.09.2022 was challenged but the legality of the earlier order

dated 24.08.2022 passed by the court of Additional Chief Judicial

Magistrate, Nawa was also challenged. The Criminal Revision

Petition No.24/2022 came to be rejected by the court of Additional

Sessions Judge, Makrana, District Nagaur (having additional

charge of the court of Additional Sessions Judge, Kuchaman City,

District Nagaur) vide order dated 15.09.2022. Learned counsel

submitted that the fact with regard to rejection of default bail

under Section 167(2) Cr.P.C. by the courts below vide orders

dated 02.09.2022 and 15.09.2022 ought to have been disclosed

by the petitioners, while pursuing the present bail application as

remedy of filing revision petition against the orders dated

02.09.2022 and 15.09.2022 is available to the petitioners.

[2023/RJJD/005868] (12 of 16) [CRLMB-12246/2022]

Heard learned counsel for the parties and perused the

material available on record.

The present bail application has been filed under Section 439

Cr.P.C. by the petitioners on the following grounds:-

"A. That petitioners are falsely implicated in present case.

B. That charge sheet in this case was not filled within period of 90 days.

C. That petitioners was arrested on dated 17th May 2022, whereas charge sheet was not on 24th of August 2022, which is after period of 90 days, therefore bail application of petitioner shall be allowed. D. There is no allegation of absconding or tampering with the evidences by the Applicant. E. That the petitioners are still is in custody from date of arrest. The trial of the case will take quite some time.

F. That now nothing remains to be recovered at the instance of the Applicant.

G. That the Petitioners are ready to abide by all the conditions, if any, imposed by this Hon'ble Court. H. That appellant will not misuse the conditions of bail and remain present throughout the trial I. That the Petitioners craves leave to refer to and rely upon the further grounds that may be urged at the time of hearing."

From the perusal of the grounds on which present bail

application under Section 439 Cr.P.C. has been filed, it would

reveal that the bail has been sought mainly on the ground of

violation of the provisions contained in Section 167(2) Cr.P.C.

Indisputably, in the present case, a co-ordinate Bench of this

Court in S.B. Criminal Misc(Pet.) No.3399/2022 (Sarita Choudhary

vs. State of Rajasthan) was pleased to pass an interim order dated

01.06.2022, restraining Investigating Agency from filing challan in

relation to F.I.R. No.102/2022 lodged at P.S. Nawa Shahar, District

Nagaur without permission of this Court. Thus, the challan/charge

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sheet which was required to be filed within 90 days, could not be

filed by the Investigating Agency. It is also not in dispute that an

application (I.A. No.3/2022) in S.B. Criminal Misc (Pet.)

No.3399/2022, moved by State seeking permission to file challan/

charge sheet against 9 accused persons, who were arrested in

connection F.I.R. No.102/2022, came to be allowed by the co-

ordinate Bench vide order dated 23.08.2022.

After obtaining permission from this Court, the Investigating

Officer filed challan/charge-sheet before competent criminal court

on 26.08.2022. A bare reading of the interim order dated

01.06.2022 passed by co-ordinate Bench of this Court would

reveal that this Court restrained investigating agency from filing

challan in this case i.e. the case arising out of FIR No.102/2022.

While modifying the interim order dated 01.06.2022, this Court

was conscious of the fact that few co-accused persons may take

benefit of the situation, thus this Court in para of 6 of its order

dated 23.08.2022 clarified that accused persons cannot take

advantage of the fact that challan / charge-sheet has not been

filed. The order dated 23.08.2022 passed by co-ordinate Bench of

this Court remained unchallenged and has thus attained finality.

In the considered opinion of this Court, the argument raised

on behalf of the petitioners that they were not party in S.B.

Criminal Misc (Pet.) No.3399/2022, therefore interim order dated

01.06.2022 and order dated 23.08.2022 is not applicable to them

is to no avail as by way of order dated 01.06.2022, co-ordinate

Bench of this Court restrained investigating Agency from filing

challan 'in this case' without permission of the Court. The

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terminology used in the orders dated 01.06.2022 is sufficient to

indicate that charge against any accused could not have been filed

by the Investigating Agency without permission of this Court. As

noticed above, the co-ordinate Bench in its order dated

23.08.2022 while permitting Investigating Agency to file

challan/charge-sheet clearly observed that 'accused persons

cannot take advantage of the fact that the charge sheet has

not been filed.'

The latin maxim 'Actus Curiae Neminem Gravabit' i.e. the act

of the Court will not prejudice anyone, is well known. On applying

aforesaid maxim to the facts of the present case, this court finds

that the petitioners cannot take advantage of the fact that period

of 90 days to file the charge sheet against them had lapsed and

therefore, they are entitled to be enlarged on bail.

Suffice it to observe that facts and situation of the present

case are different from the cases cited by learned counsel for the

petitioner and therefore, they do not apply in the present case for

granting bail/default bail under Section 167(2) Cr.P.C.

The application (I.A. No.1/2022) filed in the present Crl.M.B.

No.12246/2022 for treating present criminal miscellaneous bail

application as criminal revision petition is untenable in the eyes of

law for the reason that the order impugned dated 25.08.2022 was

passed by the Court of Additional Sessions Judge, Kuchaman City,

District Nagaur while exercising its jurisdiction under Section 439

Cr.P.C. which co-extensive with this Court. The order dated

25.08.2022 had not been passed in exercise of revisional

jurisdiction available to the court of Additional Sessions Judge,

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Kuchaman City, District Nagaur so as to examine legality and

veracity of order dated 24.08.2022 passed by the court of

Additional Chief Judicial Magistrate, Nawa, District Nagaur. The

I.A. No.1/2022 is therefore rejected.

Before parting with the order, this Court is constrained to

observe that petitioners have not approached this Court with clean

hands and they have tried to mislead this Court by concealing

material facts necessary for adjudication of the present matter. It

is noticed that during pendency of the present bail application,

second default bail application filed under Section 167 (2) Cr.P.C.

before the court of Additional Chief Judicial Magistrate, Nawa,

District Nagaur was rejected vide order dated 02.09.2022 and the

Criminal Revision Petition No.24/2022 challenging order dated

02.09.2022 was rejected by the revisional court vide order dated

15.09.2022. These orders could have been assailed before this

Court by way of filing criminal revision petition. However,

petitioners not only concealed these orders from this Court but

insisted that the present bail application may be converted into

criminal revision petition so as to enable them to challenge order

dated 25.08.2022 passed by Additional Sessions Judge, Kuchaman

City, District Nagaur while deciding bail application under Section

439 Cr.P.C.

After giving my thoughtful consideration to the submissions

advanced at bar and having gone through the F.I.R. and challan

papers; looking to the seriousness of allegations levelled against

the petitioners, I am not inclined to enlarge the petitioners on bail.

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Accordingly, this the instant application for bail under Section 439

is dismissed.

(KULDEEP MATHUR),J Prashant/-

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