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Judgments of Supreme Court of India and High Courts

Paras Ram vs State Of Rajasthan on 14 January, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 9538/2018

Paras Ram S/o Shri Haja Ram, Aged About 40 Years, B/c Bheel,
R/o Maila Madan, Siwana, District Barmer. (In Judicial Custody At
Sub Jail, Balotra)

—-Petitioner
Versus
State Of Rajasthan

—-Respondent

For Petitioner(s) : Mr J.S.Choudhary Sr. Advocate with
Mr Pradeep Choudhary
For Respondent(s) : Mr Ashok Upadhyay-PP
Mr Moti Singh for complainant

HON’BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

14/01/2019

The petitioner has been arrested in connection with FIR

No.49/2017 of Police Station, Siwana, District Barmer for the

offence punishable under Section 376(1) IPC. He has preferred

these bail applications under Section 439 CrPC.

Learned counsel for the petitioner has submitted that

the petitioner was arrested by police on 12.06.2017, however, on

the expiry of 90 days i.e. 11.09.2017, the police filed charge-

sheet against the petitioner in the Court of Judicial Magistrate,

Siwana. The Judicial Magistrate, Siwana returned the said charge-

sheet with a remark that as the charge against the petitioner is

under the POCSO Act, the charge-sheet be filed in Special POCSO

Court, Barmer only. The Judicial Magistrate, Siwana also extended

the judicial custody of the petitioner up to 25.09.2017. The police
(2 of 9) [CRLMB-9538/2018]

then filed charge-sheet against the petitioner in the Special

POCSO Court, Barmer on 11.09.2017 itself, however, the Special

Judge returned the said charge-sheet while treating it as

incomplete and gave direction to the police to remove the

deficiencies on certain points. Thereafter the police filed charge-

sheet before the Judicial Magistrate, Siwana on 14.09.2017,

however, the Judicial Magistrate, Siwana returned the said charge-

sheet while observing that in view of the order dated 11.09.2017

passed by the Special Judge, POCSO Court, Barmer, the same is

not liable to be accepted.

Learned counsel for the petitioner has submitted that in

the meantime on 13.09.2017, the petitioner preferred an

application under Section 167(2) CrPC before the Judicial

Magistrate, Siwana with contention that since charge-sheet was

not filed on 11.09.2017, the day, when limitation had expired, the

petitioner is entitled to be released on default bail. The Judicial

Magistrate, Siwana rejected the said application of the petitioner

vide order dated 13.09.2017 while observing that since charge-

sheet against the petitioner is filed within 90 days, he is not

entitled for default bail. Thereafter, when the Judicial Magistrate

again refused to accept the charge-sheet on 14.09.2017, an

application was moved on behalf of the petitioner before the

Special Court, Barmer under Section 167(2) CrPC on 15.09.2017

with a prayer for releasing him on default bail on the ground that

no charge-sheet has been filed by the police against the petitioner

within the prescribed limit. The said application of the petitioner

was rejected by the Special Judge vide order dated 20.09.2017

while observing that as the charge-sheet against the petitioner
(3 of 9) [CRLMB-9538/2018]

was filed under Section 376(1) CrPC, the petitioner is not entitled

to be released on bail.

Learned counsel for the petitioner has submitted that

as a matter of fact, no charge-sheet was filed against the

petitioner because the final conclusion filed by the police was

incomplete and, therefore, the Special Court returned the said

incomplete charge-sheet to the police on 11.09.2017 and

thereafter the charge-sheet was filed against the petitioner only

on 20.03.2018, whereas prior to that the petitioner had already

moved an application under Section 167(2) CrPC. Learned

counsel for the petitioner has also submitted that in the facts and

circumstances of the case, the petitioner is entitled to be released

on default bail.

In support of the above submissions, learned counsel

for the petitioner has placed reliance on a decision of Hon’ble

Supreme Court rendered in Achpal @ Ramswaroop and Anr.

vs. State of Rajasthan, reported in AIR 2018 SC 4547.

In the alternative, learned counsel for the petitioner

has submitted that the petitioner was arrested as there is

allegation against him that he had sexually assaulted a minor girl,

however, the police have only filed charge-sheet for the offence

punishable under Section 376(1) CrPC and found that the

allegation against the petitioner of committing rape upon a minor

girl is not true and, therefore, the offence punishable under

Section 3/4 of the POCSO Act is not made out.

Learned counsel for the petitioner has also submitted

that the FIR in respect of sexual allegation has been filed with

great delay and from the statements of witnesses recorded by the

police, particularly the statement of witness Kana Ram, it is clear
(4 of 9) [CRLMB-9538/2018]

that the petitioner has falsely been implicated in this case because

the complainant party demanded money from the petitioner, which

he refused to give.

Learned counsel for the petitioner has also submitted

that from medical report, the allegation of sexual assault has not

been proved. It is further submitted that charge-sheet has

already been filed and trial of the case will take time, therefore,

the petitioner may be released on bail.

Per contra, learned Public Prosecutor as well as counsel

for the complainant have opposed the bail application.

Learned Public Prosecutor has argued that as now the

charge-sheet has been filed against the petitioner for the offence

punishable under Secttion 376(1) IPC, he is not entitled for grant

of default bail. Learned Public Prosecutor has further argued that

from the statements of the witnesses recorded during the course

of investigation, particularly the statement of the prosecutrix, it is

clear that charge of sexual assault against the petitioner is fully

proved and, therefore, on merit also, the petitioner is not entitled

to be released on bail.

Learned counsel for the complainant has vehemently

opposed the bail application and submitted that as a matter of

fact, the petitioner being aggrieved with the order dated

20.09.2017, whereby the application for default bail of the

petitioner was rejected by the Special Court, filed S.B.Cr. Appeal

No.1536/2017 before this Court, however, he withdrew the said

appeal on 09.10.2018 and, therefore, the ground of releasing the

petitioner on default bail is not available to him.

Learned counsel for the complainant has also submitted

that bail application under Section 439 CrPC of the petitioner was
(5 of 9) [CRLMB-9538/2018]

rejected by Sessions Judge, Balotra on 08.06.2018, wherein no

grounds regarding release of the petitioner on default bail had

been raised, therefore, the said bail application of the petitioner

can only be treated as a bail application on merits and the

Sessions Judge, Balotra has rightly rejected the said bail

application on merits while taking into consideration the fact that

ample evidence is available on record against the petitioner

regarding sexual assault.

Learned counsel for the complainant has placed reliance

on decision of Hon’ble Supreme Court rendered in Rakesh Kumar

Paul vs. State of Assam, reported in 2018(Suppl.) Cr.L.R.

(SC) 1 and opposed the prayer of the petitioner for releasing him

on default bail.

Heard learned counsel for the rival parties and perused

the material available on record.

The facts, not in dispute, are that the petitioner was

arrested on 12.06.2017 and in connection with the FIR registered

against him for the offence punishable under Section 376 IPC read

with Section 3/4 of Protection of Children from Sexual Offences

Act, 2012. As per the provisions of Section 167(2) CrPC, the

charge-sheet against the petitioner was required to be filed within

90 days and the said 90 days expired on 11.09.2017. The police

have filed charge-sheet against the petitioner in the Court of

Judicial Magistrate, Siwana on 11.09.2017, however, the same

was returned to the police for filing it before the POCSO Court,

Barmer. On 11.09.2017 itself, the police filed charge-sheet against

the petitioner before the Special Court, Barmer, however, the

Special Judge returned the said charge-sheet while treating it as
(6 of 9) [CRLMB-9538/2018]

incomplete and also gave certain directions to the police to

complete the investigation on certain points.

In the meantime, an application under Section 167(2)

CrPC was preferred on behalf of the petitioner before the Judicial

Magistrate, Barmer, which came to be dismissed by that court

while observing that no such application was preferred on

11.09.2017 and charge-sheet was filed against the petitioner

within 90 days and, therefore, he is not entitled for grant of

default bail. Thereafter, the petitioner moved an application under

Section 167(2) CrPC before the Special Court, however, the

Special Court also dismissed the said application while observing

that since the charge-sheet is filed against the petitioner for the

offence punishable under Section 376(1) IPC i.e. within 90 days

from his arrest, he is not entitled for default bail.

After going through the orders passed by the Judicial

Magistrate, Siwana on 11.09.2017, 13.09.2017 and 14.09.2017

and the orders passed by the Special Court on 11.09.2017 and

20.09.2017, I am of the opinion that the Judicial Magistrate,

Siwana as well as the Special Court, Siwana erred in rejecting the

application preferred on behalf of the petitioner under Section

167(2) CrPC.

The Judicial Magistrate, Siwana vide orders dated

11.09.2017 and 14.09.2017 returned the charge-sheet to the

police firstly by directing to file it before Special Court and

secondly by observing that in view of order passed by Special

Court on 11.09.2017, charge-sheet cannot be accepted.

The Special Court, Barmer vide order dated 11.09.2017

has also returned the charge-sheet while treating it as incomplete

and gave direction to the police to cure the deficiencies on certain
(7 of 9) [CRLMB-9538/2018]

points, so it is clear that on 11.09.2017 or thereafter up to

20.03.2018, no charge-sheet against the petitioner had been filed

and in between the petitioner already moved applications for

default bail twice i.e. on 13.09.2017 before the Judicial Magistrate,

Siwana and on 15.09.2017 before the Special POCSO Court,

Barmer.

The Hon’ble Supreme Court in Achpal @

Ramswaroop and Anr. vs. State of Rajasthan (supra) has

observed as under:

“The fact of the matter is that as on completion of
90 days of prescribed period under Section 167 of
the Code there were no papers of investigation
before the concerned Magistrate. The accused were
thus denied of protection established by law. The
issue of their custody had to be considered on merits
by the concerned Magistrate and they could not be
simply remanded to custody dehors such
consideration.”

In view of above, the reasons given by the Judicial

Magistrate, Siwana as well as the Special Judge, POCSO Court,

Barmer for rejecting the application for releasing the petitioner

on default bail are factually incorrect because as a matter of fact

from 11.09.2017 to 20.03.2018, no charge-sheet was filed

against the petitioner and on account of that the petitioner was

entitled for grant of default bail.

So far as argument of the learned counsel for the

complainant to the effect that the criminal appeal preferred by

the petitioner against the order of Special Judge, POCSO Court

dated 20.09.2017 was dismissed as withdrawn, the argument of

releasing him on default bail is not available to him in an

application under Section 439 CrPC is concerned, the same is
(8 of 9) [CRLMB-9538/2018]

liable to be rejected in view of the following observations made

by the Hon’ble Supreme Court in para 40 of the decision

rendered in Rakesh Kumar Paul’s case (supra)

“40. In the present case, it was also argued by
learned counsel for the State that the petitioner did
not apply for ‘default bail’ on or after 4.1.2017 till
24.1.2017 on which date his indefeasible right got
extinguished on the filing of the charge sheet. Strictly
speaking this is correct since the petitioner applied
for regular bail on 11.1.2017 in the Gauhati High
Court – he made no specific application for grant of
‘default bail’. However, the application for regular bail
filed by the accused on 11.1.2017 did advert to the
statutory period for filing a charge sheet having
expired and that perhaps no charge sheet had in fact
being filed. In any event, this issue was argued by
learned Counsel for the petitioner in the High Court
and it was considered but not accepted by the High
Court. The High Court did not reject the submission
on the ground of maintainability but on merits.
Therefore it is not as if the petitioner did not make
any application for default bail – such an application
was definitely made (if not in writing) then at least
orally before the High Court. In our opinion, in
matters of personal liberty, we cannot and should not
be too technical and must lean in favour of personal
liberty. Consequently, whether the accused makes a
written application for ‘default bail’ or an oral
application for ‘default bail’ is of no consequence. The
concerned court must deal with such an application
by considering the statutory requirements namely,
whether the statutory period for filing a charge sheet
or challan has expired, whether the charge sheet or
challan has been filed and whether the accused is
prepared to and does furnish bail.”

In the present case, counsel for the petitioner has also

raised the ground of releasing the petitioner on default bail and
(9 of 9) [CRLMB-9538/2018]

in the facts and circumstances of the case, I am convinced that

the charge-sheet was not filed against the petitioner on expiry of

90 days, therefore, the petitioner is entitled for grant of default

bail.

Accordingly, this bail application filed under Sec.439

Cr.P.C. is allowed and it is directed that petitioner Paras Ram son

of Haja Ram shall be released on bail in connection with FIR

No.49/2017 of Police Station, Siwana, District Barmer provided

he executes a personal bond in a sum of Rs.1,00,000/- (Rupees

one lac) with two sound and solvent sureties of Rs.50,000/-

(Rupees fifty thousand) each to the satisfaction of learned trial

court for his appearance before that court on each and every

date of hearing and whenever called upon to do so till the

completion of the trial.

(VIJAY BISHNOI),J

masif/-PS

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