Rajasthan High Court

Harikesh Son Of Shri Bhogiram vs State Of Rajasthan on 15 September, 2023

Bench: Anil Kumar Upman

[2023:RJ-JP:22955]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 18043/2022

Harikesh Son Of Shri Bhogiram, Aged About 30 Years, R/o Math
Jarari, Police Station Kanchanpur, District Dholpur.
                                                                   ----Petitioner
                                    Versus
State of Rajasthan, Through P.P
                                                                 ----Respondent

For Petitioner(s)         :     Mr Bhanu Pratap Singh
For Respondent(s)         :     Mr. Atul Sharma, PP
                                Mr. Ashutosh Chauhan, associate to
                                Mr. Sanjay Khan 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.209/2022 registered at Police

Station Kanchanpur, District Dholpur for offence under Section 306

IPC.

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

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

the petitioner is the husband of the deceased Smt Kallo, who

committed suicide on 02.07.2022. He further submit that the

deceased Smt. Kallo was living happily with the accused petitioner

and she was not having any problem with the accused petitioner.

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He further contends that the deceased committed suicide after ten

years of his marriage and they have one child out of their

wedlock. He submits that even if the allegations levelled in the FIR

are admitted to be true on the face of record, then too, offence

under Section 306 IPC is not made out against the petitioner. It is

also contended that the complainant has also supported the case

of the petitioner and stated on affidavit that his sister was living

happily with the petitioner and when he came to know about the

suicidal death of his sister, under short temperament and on being

misled by some persons, he lodged the FIR against the petitioner.

It is 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 offence under Section

306 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.

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

797.

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

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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.209/2022 PS Kanchanpur.

4. Learned Public Prosecutor has opposed the bail application

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

filed against the petitioner 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. Per contra, learned counsel appearing for the complainant

does not oppose the bail application under Section 438 Cr.P.C. and

submits that he has no objection, if the bail application is

accepted.

6. I have heard and considered the contentions advanced by

both the parties. Apparently, in this case, now the police has filed

the charge-sheet and, therefore, 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.

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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,

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

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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 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;

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(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 especially the fact that as per the affidavit of the

complainant Jagdish, his sister Smt. Kallo was living happily with

the petitioner and she has not been subjected to harassment at

the end of the petitioner in her matrimonial home, she committed

suicide after ten years of her marriage so also 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 petitioner shall appear before the trial

court on or before 03.10.2023 and submits personal bond in the