Rajasthan High Court - Jodhpur
Subash vs State (2024:Rj-Jd:8399) on 16 February, 2024
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2024:RJ-JD:8399]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2680/2014
Subash S/o Shri Pukhraj, R/o Harsolaw, Tehsil Merta, District
Nagaur.
----Petitioner
Versus
State of Rajasthan, through Station House Officer, Gotan.
----Respondent
Connected With
S.B. Criminal Misc(Pet.) No. 2953/2016
Raju @ Rajesh S/o Ramkaran, R/o Tarnau, P.S. Jayal, District
Nagaur.
----Petitioner
Versus
1. State of Rajasthan.
2. Shri Manoj Machra, SHO, P.S. Jayal, District Nagaur.
----Respondent
For Petitioner(s) : Mr. Vishal Sharma
Mr. Pradeep Choudhary
For Respondent(s) : Mr. Mahipal Bishnoi, PP
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Order
16/02/2024
In both the criminal misc. petitions, the petitioners have
challenged the orders dated 22.09.2014 and 01.07.2016 passed
by Sub-Divisional Magistrate, Merta, District Nagaur and Sub-
Divisional Magistrate, Jayal, District Nagaur respectively, whereby
on the application submitted by the SHO concerned under Section
110 of Cr.P.C., the learned Sub-Divisional Magistrate concerned
directed the petitioners to execute bail bonds in the sum of Rs.
[2024:RJ-JD:8399] (2 of 5) [CRLMP-2680/2014]
10,000/- each for a period of six months for keeping peace and
good behavior for the period mentioned in the respective orders.
2. Learned counsel appearing for the petitioners in both the
criminal misc. petitions submits that the SHO concerned have not
filed any affidavit with regard to the fact that the petitioner
concerned is 'likely to commit a breach of peace or disturb the
public tranquility' and in absence of such an affidavit, the learned
Sub-Divisional Magistrate concerned has wrongly passed the
impugned orders against the petitioners. It is further submitted
that the case of petitioners does not fall in the periphery of
Section 110 of Cr.P.C., because they are not habitual offenders. It
is also submitted that both the petitioners have not been
convicted in any of the previous cases registered against them. It
is submitted that the orders passed by the learned Sub-Divisional
Magistrates concerned are nothing but abuse of process of law and
therefore, both the present criminal misc. petitions deserve to be
allowed and the impugned orders are required to be quashed and
set aside. In support of their contentions, learned counsel for the
petitioners have relied upon following two judgments of Rajasthan
High Court:-
1. Shankar Lal versus The State of Rajasthan,
(Criminal Misc. Petition No. 3308/2015) decided
on 30.08.2016.
2. Hari Prakash versus The State of Rajasthan,
(Criminal Misc. Petition No. 2681/2014) decided on
16.12.2016.
3. Learned Public Prosecutor has opposed the prayer made by
learned counsel for the petitioners and submits that the Sub-
Divisional Magistrates concerned have rightly passed the orders
impugned.
[2024:RJ-JD:8399] (3 of 5) [CRLMP-2680/2014]
4. I have heard learned counsel for the parties and perused the
material available on record.
5. Before proceeding further, it would be just and appropriate to
examine the definition of habitual offender envisaged under
Section 2(a) of Rajasthan Habitual Offenders Act, 1953. The
definition reads as under:-
2. (a) 'habitual offender' means a person who, during
any continuous period of five years, whether before or after
the 15th day of September, 1952 or partly before and partly
after the said date, has been sentenced on conviction on not
less than three occasions since he attained the age of
eighteen years to a substantive terms of imprisonment for
any one or more of the scheduled offences committed on
different occasions and not so connected together as to form
parts of the same transaction, such sentence not having been
reversed in appeal or revision.
Provided that in computing the continuous period of
five years referred to above any period spent in jail either
under a sentence of imprisonment or under detention shall
not be taken into account.
Now, if the term 'habitual offender', as defined under Section
2(a) of the Act of 1953, is examined on the basis of the complaint
submitted by the S.H.O concerned as well as reply of the State,
then it would ipso facto reveal that the complaint itself is not
satisfying the requirements for declaring the petitioners as
habitual offenders. The details of cases registered against the
petitioners as mentioned in the complaint are elaborated in the
tabular form below:-
Petitioner- Subash
Sr. Case No. Offences under Police Station
No.
1. 223/25.11.2013 S. 341, 323, 448 of IPC Gotan
2. 165/21.07.2014 S. 143, 341, 323 of IPC Gotan
Petitioner- Raju @ Rajesh
Case Date Offence u/s. CS No. Offence u/s. Court Result
No.
81 13.02.08 3/25 Arms Act 82/18.03.08 3/25 Arms Act Proceedings drop
[2024:RJ-JD:8399] (4 of 5) [CRLMP-2680/2014]
dated 12.06.2009
CJM Court,
Nagaur.
07 06.02.06 147, 148, 149, 74/03.12.06 147, 148, 149, JM Court, Jayal.
447, 323 and 302 341, 323, 324,
of IPC 325, 307, 302,
120-B of IPC,
3/25 of Arms Act
24 13.06.04 341, 323 of IPC 17/30.06.04 341, 323 of IPC Acquitted on
compromise
dated 16.11.06,
JM Court, Jayal.
102 11.12.10 19/54, 54A, 54D, 78/09.12.11 19/54, 54A, Pending trial
56, 65 Raj. 54D, 56, 65 of ACJM Court,
Excise Act. Raj. Excise Act. Nagaur
103 11.12.10 420, 467, 468, 69/01.11.11 420, 465, 467, Pending trial JM
471, 472, 120-B 468, 471, 472, Court, Jayal.
IPC 120-B IPC
104 13.12.10 3/25, 35 Arms 65/25.10.11 3/25, 35 Arms Pending trial JM
Act Act Court, Jayal
106 26.08.12 147, 148, 149, Pending -- --
323, 307, 364 under S.
IPC 173(8)
Cr.P.C.
6. A perusal of the aforementioned details of the petitioners
reveals that the petitioners have not been convicted in any of the
cases registered against them till the date of filing of this petition
i.e. till 28.10.2014. Thus, in my opinion, initiating proceedings
against the petitioners under the provisions of Section 110 CrPC is
not justified. Further, the issue at hand is squarely covered by the
judgment of this Court delivered in the case of Shankar Lal
versus State of Rajasthan (Criminal Misc. Petition No.
3308/2015) decided on 30.08.2016, whereby it has been held
that initiation of proceeding under Section 110 of Cr.P.C. has an
adverse impact on the personality of an individual as the same
causes a social stigma. Further, it has been held that in a
[2024:RJ-JD:8399] (5 of 5) [CRLMP-2680/2014]
democratic republic, a citizen cannot be asked to furnish bond of
good behavior without any justifiable cause or ground because it
obviously affects his liberty and his social status in clear negation
of Art. 21 of the Constitution.
7. Therefore, viewed from any angle, initiation of proceeding
under Section 110 Cr.P.C., for opening history sheet as well as
entire proceedings subsequent thereto against the petitioners, are
glaring example of sheer abuse of the process of the Court and
thus, are not sustainable.
8. Accordingly, the petitions are allowed and entire criminal
proceedings initiated against petitioners under Section 110 Cr.P.C.
in Criminal Case Nos. 297/2014 and 4/2016, pending before
learned Sub Divisional Magistrates concerned, as well as orders
dated 22.09.2014 and 01.07.2016 passed by learned Sub
Divisional Magistrates concerned are quashed and set aside.
(MADAN GOPAL VYAS),J
364-Dinesh/-
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