HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
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
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
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
(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.
(DINESH CHANDRA SOMANI)J. (MOHAMMAD RAFIQ)J.