Rajasthan High Court

Sitaram Son Of Sawatya @ Sawatram vs State Of Rajasthan on 15 September, 2023

Bench: Anil Kumar Upman

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         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 12675/2022

Sitaram Son Of Sawatya @ Sawatram, Aged About 24 Years,
Resident Of Amavara, Tehsil Bamanwas, Distt. Sawaimadhopur
(Raj.)
                                                                   ----Petitioner
                                    Versus
State of Rajasthan, through P.P
                                                                 ----Respondent

For Petitioner(s) : Mr. Shashank Shekhar Pachauri For Respondent(s) : Mr. Atul Sharma, PP None present for the complainant

HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

ORDER Order pronounced on ::: 15/09/2023 Order reserved on ::: 01/08/2023

1. The petitioner has filed this miscellaneous bail application

under Section 438 Cr.P.C, who is having apprehension of his arrest

in connection with the F.I.R. No.135/2022 registered at Police

Station Soorwal, District Sawaimadhopur for offences under

Sections 457 & 376(2)(n) IPC.

2. It is contended by counsel for the petitioner that the

petitioner has falsely been implicated in this case. He submits that

the relationship between the petitioner and prosecutrix were

consensual in nature. She herself admitted in the FIR that for last

two years, she used to talk on phone with the petitioner and she

went with the petitioner at several places on her own free will.

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Counsel for the petitioner contended that the incident allegedly

happened on 25.05.2022 in the house of the prosecutrix is highly

improbable. The prosecutrix alleged in the FIR that on

25.05.2022, the petitioner came inside the house of the

prosecutrix and committed rape upon her. She further alleged

that at that time, her mother and grandmother were also present

in the house but very surprisingly, she did not make any hue and

crye. He thus, contended that the story put-forth by the

prosecutrix in the FIR is highly improbable and cannot be accepted

to be true. He contended that the prosecutrix on her own free will

left her parental home and she was never induced by the

petitioner for entering into relationship by the petitioner. He

submits that the prosecutrix has lodged the above FIR for

blackmailing the petitioner. It is also argued by counsel

representing the petitioner that charge-sheet under Section 299

Cr.P.C. has been filed in this matter before the learned court below

for offences under Sections 342, 457, 376 (2)(n) IPC after

obtaining warrant under Section 37 of Police Act. However, since

the proceedings under Sections 82 & 83 Cr.P.C. have not attained

finality, there would be no bar for grating anticipatory bail to the

petitioner. He placed reliance upon the following judgments:-

(i) Bharat Choudhary & Anr. Vs. State of Bihar & Anr., 2003(8) SCC 77

(ii) Ravindra Saxena Vs. State of Rajasthan, 2010 (1) SCC

684.

(iii) Bimla Tiwari Vs. State of Bihar & Ors., 2023 SCC Online SC 51.

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(iv) Amar Nath Neogi Vs. State of Jharkhand, 2018 (11) SCC,

797.

(v) Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 (1) SCC 694.

3. He thus, prays that the instant application under Section 438

Cr.P.C. may be allowed and the petitioner may be granted benefit

of anticipatory bail in the event of his arrest in connection with the

FIR No.135/2022 PS Soorwal, District Sawaimadhopur.

4. Learned Public Prosecutor has opposed the bail application

and submits that the prosecutrix has levelled serious allegation of

rape against the petitioner and therefore, looking to the gravity of

offence, anticipatory bail should not be grated to the petitioner. He

also submits that charge-sheet under Section 299 Cr.P.C. has been

filed against the petitioner for offences under Sections 342, 457

and 376 (2)(n) IPC and, therefore, in view of law laid down by

Hon'ble Apex Court in the case of Lavesh Vs. State (NCT of

Delhi), 2012 (8) SCC 730, this bail application is not

maintainable.

5. Despite service, no one has appeared on behalf of the

complainant/victim to oppose the bail application.

6. I have heard and considered the arguments advanced at bar

and perused the material available on record. Apparently, in this

case, now the police has filed the charge-sheet and, therefore,

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custodial interrogation is not required in this matter. It is also

evident from record that only warrant under Section 37 of the

Police Act has been obtained by the police to file charge-sheet

under Section 299 Cr.P.C., while proceedings under Section 82 &

83 Cr.P.C have not attained finality.

7. In my considered opinion, it cannot be held that anticipatory

bail application is not maintainable as the petitioner was not

declared absconder and no proclamation was issued against the

petitioner till filing of the anticipatory bail application. Merely

issuance of warrant under Section 37 of the Police Act does not

mean that the petitioner is absconding. In case of Bharat

Choudhary (supra), it was held by Hon'ble Apex Court that

application under Section 438 Cr.P.C. for grant of anticipatory bail

will be maintainable after charge-sheet is filed or cognizance is

taken. In case of Ravindra Saxena (supra), Hon'ble Apex Court

considering the same situation held that after filing of the charge-

sheet, anticipatory bail application can be entertained. In case of

Amar Nath Neogi (supra), Hon'ble Apex Court has considered

the identical situation and considering the fact that charge-sheet

has been filed, directed the accused to appear before the trial

court and submit his bail bonds. In case of Lavesh (supra), it

was held by Hon'ble Apex Court that the person who is

"absconding" and declared as "proclaimed offender" is not entitled

to seek anticipatory bail application normally. It was made clear in

the aforesaid case of Lavesh (supra) that when the accused is

absconding and has also been declared "proclaimed offender",

case of granting anticipatory bail does not arise. In this case,

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while laying down the law, Hon'ble Apex Court has used word

"normally" in reference to the anticipatory bail application,

preferred by a "proclaimed offender". Neither the provisions under

Section 82 Cr.P.C. nor under Section 438 Cr.P.C. impose any

restriction on the filing of anticipatory bail by an absconder. As a

rule of thumb, it cannot be said that absconder, against whom a

proclamation under Section 82 Cr.P.C. is not issued, is not entitled

to get anticipatory bail.

8. In the present case, admittedly, proceedings under Sections

82 & 83 Cr.P.C. have not attained finality. Arrest should be the last

option and should be restricted to those exceptional cases where

arrest of the accused is imperative in the facts and circumstances

of the case. The court must carefully examine entire material

available on record and particularly, the allegations which have

been directly attributed to the accused and the allegations should

be corroborated by other material and circumstances on record.

9. In case of Siddharam Satlingappa Mhetre (Supra),

Hon'ble Apext Court laid down certain factors and parameters,

which are required to be taken into consideration while dealing

with the anticipatory bail. Some of the relevant factors are

reproduced for ready reference:-

"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from

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justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the Court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) 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."

10. Having regard to the totality of the facts and circumstances;

considering the arguments advanced by learned counsel for both

the parties and especially the fact that as per the FIR itself, the

prosecutrix alleged that she was in contact with the petitioner for

last two years and had gone to several places with the petitioner

so also left her parental home on her own free will, the manner in

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which the allegation of rape has been levelled by her, so also

considering the fact that the petitioner has not yet been declared

"proclaimed offender" and charge-sheet has been filed under

Section 299 Cr.P.C. but without making any comments on the

merits/demerits of the case, it is hereby directed that the