Rajasthan High Court
Sahid S/O Azad vs State Of Rajasthan (2024:Rj-Jp:3623) on 22 January, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:3623]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 679/2024
Sahid S/o Azad, R/o Kanchanner, Police Station Jurhera, District
Deeg (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Kayam S/o Haneef, R/o Kanchanner, Police Station
Jurhera, District Deeg (Raj.).
3. Victim, R/o
----Respondents
For Petitioner(s) : Mr. Mohammad Aslam
For Respondent(s) : Mr. Babulal Nasuna, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
22/01/2024
1. The instant pre-arrest bail application under Section 438
Cr.P.C. has been filed on behalf of the petitioner herein who is
having apprehension of his arrest in connection with FIR
No.117/2021 registered at PS Jurhera, District Bharatpur for
offences under Sections 363, 366 & 376-D of IPC and Sections
5G/6 & 16/17 of POCSO Act.
2. It is contended by learned counsel for the petitioner that
the accused-petitioner has falsely been implicated in this case.
Learned counsel submits that co-accused Shaukeen was tried by
the learned trial court and he has been acquitted vide judgment
dated 17.10.2023. As per the findings of learned trial court, in the
case of co-accused, prosecutrix was not found minor. It is further
submitted that petitioner is ready to face the trial. It is further
[2024:RJ-JP:3623] (2 of 3) [CRLMB-679/2024]
submitted that co-accused Shaukeen was on bail during trial. He
further submits that custodial interrogation of the petitioner is not
required in this matter. It is thus, prayed that instant anticipatory
bail application under Section 438 Cr.PC may kindly be allowed.
3. Under the instructions of Investigating Officer, learned Public
Prosecutor submits that instant bail application filed under Section
438 Cr.P.C. is not maintainable as charge-sheet under Section 299
Cr.P.C. has been filed against the petitioner in the court below and
the petitioner has been declared absconder.
4. Section 82 of Cr.P.C. provides for issuance of proclamation
against absconding persons. It says that if any Court has reason
to believe that any person against whom a warrant of arrest has
been issued by it, has absconded or concealed himself so that
such warrant cannot be executed, such Court may publish a
written proclamation requiring him to appear at a specified place
and at a specified time, not less than 30 days, from the date of
publishing such proclamation.
5. A bare perusal of the aforesaid provision makes it clear that
the reason to believe must be supported by material on record.
The material on record would be in the nature of service of
summons on the petitioner or execution of warrant of arrest
against the petitioner. Only by issuance of summons and warrants,
it cannot be assumed that the same were served on the petitioner.
6. It is also evident from the record that requirement of
Sections 82 and 83 Cr.P.C. have not been fulfilled before declaring
the petitioner absconder.
[2024:RJ-JP:3623] (3 of 3) [CRLMB-679/2024]
7. In the totality of the facts and circumstances of case and
considering the arguments advanced at bar, especially the fact
that co-accused was on bail and later on he was acquitted;
charge-sheet has been filed, I am of the opinion that custodial
interrogation of the accused-petitioner is not required. Accordingly
without expressing any opinion on merits/demerits of the case,
this court deems it just and proper to dispose of this bail
application with the following directions:-
(i) That the petitioner shall appear before the Court concerned
on or before 31.01.2024 and submit his bail bonds to the
satisfaction of learned trial Court.
(ii) Upon furnishing bail bonds, the learned trial Court shall
accept the same.
(ANIL KUMAR UPMAN),J
CHARU SONI /26
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