Rafiq vs State Of Raj And Ors on 8 December, 2017

D.B. Habeas Corpus Petition No. 232 / 2017
Rafiq Son of Shri Gafoor, by Caste Meo, Resident of Kaawan Ka
Baas, Police Station Khoh, District Bharatpur (Raj.)
1. State of Rajasthan Through the Secretary, Department of
Home, Govt. of Rajasthan, Secretariat, Jaipur.

2. The Additional Director General of Police, Anti Human
Trafficking Unit, Jaipur (Rajasthan).

3. Director General of Police, Rajasthan, Jaipur.

4. Superintendent of Police Bharatpur, District Bharatpur (Raj.)

5. S.H.O. Police Station Deeg, District Bharatpur (Raj.)

For Petitioner(s) : Shri Girish Khandelwal
For Respondent(s) : Shri B.N. Sandu, AAG


This is an unusual case where the brother of the accused-

petitioner i.e. Aarif earlier approached this Court in the petition

under Section 438 Cr.P.C. seeking pre-arrest bail when process

was issued against him following cognizance for offence under

Section 354 IPC taken on the basis of protest petition by the trial

court. A single bench of this Court disposed off the application

ordering release of the brother of the petitioner with the direction

“that in case petitioner surrenders before the Magistrate within 10
(2 of 3)

days, he be released on bail subject to satisfaction of the said


Allegation of learned counsel for the petitioner is that even

though a photo copy of the aforesaid order was produced before

the I.O. by way of abundant caution as he intended to appear

before the Court and, in fact, even had gone to the Court

premises, but the police arrested him from there. In these

circumstances, he had to file the application u/s.437 Cr.P.C. for his

release. Learned Magistrate has dismissed the application on

wrong premise that since the petitioner’s brother Aarif himself has

not surrendered before the Court and has been produced after

arrest by the police, he cannot be given benefit of the aforesaid


Learned counsel argued that the application u/s.437 Cr.P.C.

could not have been dismissed by the learned Magistrate on the

assumption that offence u/s.326 and 307 were added in the FIR

because cognizance against the petitioner’s brother Aarif was

taken only for offence u/s.354 IPC, whereas cognizance was taken

for the aforesaid offences only against petitioner Rafiq. It is also

argued that brother of petitioner filed regular application u/s.439

Cr.P.C. before the Additional District Judge No.1, Deeg on

20.11.2017, but that application has not been decided till date

because the record of the case has been sent to this Court in the

appeal filed by petitioner Rafiq against his conviction. Resultantly,

petitioner is being detained in illegal custody.

Learned Additional Advocate General opposed the habeas

corpus petition.

(3 of 3)

Having regard to the facts aforesaid, while we are not

inclined to entertain this petition as habeas corpus, but taking into

consideration the peculiar facts of the case, we are inclined to

direct release of brother of petitioner Aarif on regular bail in order

that no further delay is caused in his release and his detention is

not unduly prolonged as he is already in jail for last 20 days. We

therefore direct that petitioner’s brother Aarif shall be released on

bail upon his furnishing bail bond in the sum of Rs.30,000 with

two sureties in the sum of Rs.15,000 each to the satisfaction of

the trial court.

The petition is disposed off.



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