Karnail Singh vs State Of Rajasthan ...
2023 Latest Caselaw 8311 Raj

[2023:RJ-JD:34155]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Application No. 248/2022

1. Karnail Singh S/o Sh. Labh Singh, Aged About 67 Years, R/o 2 P.s. (Dhani), Tehsil Padampur, District Sri Ganganagar (Raj.)

2. Gagandep Singh S/o Sh. Karnial Singh, Aged About 35 Years, R/o 2 P.s. (Dhani), Tehsil Padampur, District Sri Ganganagar (Raj.)

----Petitioners Versus

1. State Of Rajasthan, Through PP

2. Jarnail Singh S/o Sh. Labh Singh, Aged About 72 Years, R/o 2 P.s., Tehsil Padampur, At Present 2G5, Sadbhavna Nagar, District Sri Ganganagar (Raj.)

----Respondents

For Petitioner(s) : Mr. Sanjay Mathur For Respondent(s) : Mr. S.K.Bhati, PP Mr. Sanjeet Purohit

JUSTICE DINESH MEHTA

Order

10/10/2023

1. By way of the present application, the respondent No.2-

applicant has prayed that the order dated 08.07.2022 passed by

this Court in S. B. Criminal Misc. Petition No. 4232/2022 be

recalled.

2. Mr. Mathur, learned counsel for the respondent No.2-

applicant submitted that while filing the petition under Section 482

of the Code of Criminal Procedure (hereinafter referred to as 'the

Code'), the petitioners had not disclosed the fact that their

application for grant of anticipatory bail had been rejected by a

co-ordinate Bench of this Court by its order dated 28.06.2022

[2023:RJ-JD:34155] (2 of 5) [CRLMA-248/2022]

passed in S. B. Criminal Miscellaneous Bail Application No.

4498/2022.

3. He argued that had this fact been brought to the notice of

the Court, perhaps the Court would not have granted the

indulgence which has been granted vide order dated 08.07.2022.

4. In support of his contention aforesaid, Mr. Mathur, learned

counsel for the respondent No.2-applicant submitted that pursuant

to an FIR lodged by the applicant No.2, the trial Court took

cognizance against the petitioners vide order dated 24.08.2021,

whereagainst a petition under Section 482 of the Code was filed

which though was not entertained by the Court, however, the

arrest warrants issued against them were converted to summons

(order dated 02.03.2022).

5. It was submitted by Mr. Mathur that for the reasons best

known to the accused, an application under Section 438 of the

Code was moved by the accused persons before the trial Court

which came to be rejected vide order dated 25.03.2022 and

miscellaneous bail application that was preferred under Section

438 of the Code (registered as S. B. Criminal Miscellaneous Bail

Application No. 4498/2022) was not entertained and simply a

direction was issued to the petitioners to surrender before the trial

Court with a corresponding direction to decide the bail application

on the same date, by order dated 28.06.2022.

6. Mr. Mathur argued that on 28.06.2022, the bail application of

the accused persons was rejected by the co-ordinate Bench and

immediately after 7-8 days, the petition under Section 482 of the

Code was filed against order taking cognizance which was affirmed

by the Revisional Court. And without bringing to the notice of the

[2023:RJ-JD:34155] (3 of 5) [CRLMA-248/2022]

Court, the order dated 28.06.2022, arrest warrants have been got

converted to the bailable warrants.

7. Learned counsel argued that when there was an order dated

28.06.2022 passed by a Bench of equal strength of the High

Court, an order in different manner could not have been passed

even in exercise of inherent jurisdiction of this Court.

8. It was argued by learned counsel that the accused persons

have mislead the Court and have concealed material-fact in

relation to disposal of their application under Section 438 of the

Code and therefore, they cannot invoke discretionary jurisdiction

under Section 482 of the Code.

9. Mr. Sanjeet Purohit, learned counsel for the original

petitioners (accused persons) argued that there was no intention

on the part of the petitioners (accused persons) to mislead the

Court. He argued that powers of this Court under Section 482 of

the Code are wider than the powers under Section 438 of the

Code.

10. He submitted that this Court had given due consideration to

the facts of the present case, that out of 7 investigations which

were conducted, 6 times the Investigating Officer had found no

offence to have been committed by the accused persons and it

was only when the final report was filed against the accused

persons implicating them for the offences, the Court not only took

cognizance but has issued the arrest warrants, which in the facts

of the case ought not to have been issued.

11. He submitted that the Court has exercised its inherent

powers and granted such indulgence of conversion of arrest

warrants to bailable warrants having regard to the fact-situation.

[2023:RJ-JD:34155] (4 of 5) [CRLMA-248/2022]

He argued that in light of the fact that the trial Court had accepted

bail bonds furnished by the accused persons pursuant to the order

passed by this Court and a period of more than a year has passed,

even if this Court feels that a copy of the order dated 28.06.2022

ought to have been placed on record, the extreme order of

recalling be not passed for a small error.

12. He submitted that in the anxiety of avoiding arrest

consequent to rejection of anticipatory bail application and the

revision within a span of 7 days, the accused persons could not

wait for the certified copies of the order dated 28.06.2022, hence

the lapse, if any be condoned. Particularly when the petitioners

(accused persons) had disclosed all the relevant facts, including

dismissal of application under Section 438 of the Code by this

Court in para No. 13 of the memo of the petition.

13. Heard learned counsel for the parties and considered the

material available on record.

14. So far as the allegation of concealment leveled by the

respondent No.2-applicant is concerned, maybe, there has been

some indifference or lapse on the part of the accused persons,

who have not enclosed copy of the order dated 28.06.2022 passed

by this Court. This Court is persuaded to accept the plea taken by

the original petitioners (accused persons) that on that date

certified copy of the order was not available, hence, a simple

averment was made in the anxiety of avoiding arrest. It is difficult

to conclude that there was concealment of a material-fact,

inasmuch as proper disclosure of rejection of anticipatory bail had

been made in para 13 of the memo of petition.

[2023:RJ-JD:34155] (5 of 5) [CRLMA-248/2022]

15. That apart, pursuant to the order dated 08.07.2022 passed

by this Court, the trial Court had accepted the bail bonds and

released the petitioners (accused persons) and a period of 15

months has since passed.

16. Hence, even if there is some substance in the submission

made by Mr. Mathur, this Court does not deems it appropriate to

recall the order as prayed, because recalling of such order would

result in immediate arrest of the petitioners, which in the facts of

the present case is not warranted. Because, the trial Court at the

first instance itself, while taking cognizance had issued arrest

warrants, which was clearly contrary to the judgment of Hon'ble

the Supreme Court rendered in the case of Inder Mohan

Goswami & Anr. Vs. State of Uttaranchal & Ors., reported in

(2007) 12 SCC Page 1.

17. The criminal miscellaneous application is thus, dismissed.

(DINESH MEHTA),J 234-akansha/-

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