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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mahendar Kumar Goyal, J.
Yashraj Bhardwaj – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Criminal Miscellaneous II Bail Application No. 20655/2021
Decided On : 28-09-2022
Anticipatory Bail - Renewal of Prayer - IPC 376(2)(n), 323, 341, 384 - Summary of Acts and Sections: IPC 376(2)(n), 323, 341, 384, 313, 120-B, 299, 67 of the Information Technology Act, 2008 - The court discussed the scope of entertaining successive bail applications, the legal position on renewal of prayer for pre-arrest bail, and the circumstances entitling the petitioner for renewal of prayer. The court also considered the allegations, evidence, and investigation in reaching its decision.
Fact of the Case:
The petitioner filed a second anticipatory bail application apprehending arrest in connection with an FIR for offences under IPC 376(2)(n), 323, 341, 384. The petitioner claimed that subsequent developments and tainted investigation entitled him to renew his prayer for pre-arrest bail.
Finding of the Court:
The court examined the scope of entertaining successive bail applications and the legal position on renewal of prayer for pre-arrest bail. It found that the petitioner was not entitled to benefit of pre-arrest bail based on the circumstances presented.
Issues: Scope of entertaining successive bail applications, entitlement to renewal of prayer for pre-arrest bail, allegations of tainted investigation, cooperation during investigation, and absconding of the petitioner.
Ratio Decidendi: The legal position on renewal of prayer for pre-arrest bail cannot preclude an accused only on the ground of dismissal of the first bail application on merit. The court must consider substantial changes in fact or law. The petitioner's claims of tainted investigation and cooperation during investigation were not found to be sufficient grounds for pre-arrest bail.
Final Decision: The second pre-arrest bail application was dismissed.
JUDGMENT
1. This application for second anticipatory bail has been filed by the petitioner apprehending his arrest in connection with F.I.R. No. 365/2020 registered at Police Station Jawahar Circle, District Jaipur City (East) for the offence(s) under Section(s) 376(2)(n), 323, 341 & 384 IPC.
2. Learned counsel for the petitioner submits that after rejection of the first bail application by this Court vide its order dated 13.09.2021, there are certain subsequent developments which have material bearing on the issue entitling him to renew his prayer for pre-arrest bail.
3. He submits that FIR in the instant case itself was not maintainable as it was lodged on 17.07.2020 whereas, the prosecutrix had already filed a complaint on 18.02.2020 in the Court of learned Chief Metropolitan Magistrate, Jaipur Metropolitan-I with similar allegations which came to be withdrawn by her on 17.07.2021 only after cognizance was already taken therein. He submits that from the statement of Shri Balveer Singh son of Shri Ratan Singh, an employee with the Hotel Moti Mahal, Pushkar, District Ajmer, recorded under Section 161 Cr.P.C., it is apparent that the prosecutrix has visited the hotel along with the petitioner on 27.02.2020 and has stayed there for a day; i.e., after filing the complaint on 18.02.2020. He submits that this fact itself demolishes the entire prosecution story. Learned counsel, drawing attention of this Court towards the charge-sheet No.109/2021 dated 07.05.2021 filed against Shri Kailash Chand Bohra in FIR No.80/2021 lodged by the prosecutrix, submitted that it reveals that the investigation done by Shri Kailash Chand Bohra in the FIR lodged against the petitioner was tainted and unfair. Referring to the status report dated 25.10.2021 submitted by the Assistant Police Commissioner Adarsh Nagar, Jaipur (East) in the Court of learned Chief Metropolitan Magistrate, Jaipur Metropolitan-I, learned counsel submitted that it unequivocally states that the petitioner has co-operated during the course of investigation. He submitted that in two more FIRs i.e., FIR No.68/2021 dated 25.01.2021 and FIR No.123/2021 dated 17.02.2021 lodged by the prosecutrix against him, the police after thorough investigation submitted negative final report. He would further submit that from a perusal of the contents of charge sheet filed against him, it is apparent that it was a case of consensual sex in between him and the prosecutrix and no offence is made out. He, therefore, prays for benefit of pre-arrest bail. To buttress his submission that the petitioner is entitled to renew the prayer for pre-arrest bail, learned counsel relies upon the judgments of the Hon'ble Apex Court of India in the cases of Rani Dudeja v. State of Harayana (2017) 13 SCC 555, Babu Singh & Ors. v. State of U.P. (1978) 1 SCC 579, Ravindra Saxena v. State of Rajasthan (2010) 1 SCC 684, Bharat Chaudhary and Anr. v. State of Bihar and Anr., (2003) 8 SCC 77, Bhadresh Bipinbhai Sheth v. State of Gujarat and Anr., (2016) 1 SCC 152 and Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab (1980) 2 SCC 565 and a judgment of full Bench of this Court in the case of Ganesh Raj v. State of Rajasthan and Ors., 2005 SCC OnLine Raj 319.
4. Per contra, learned Government Advocate-cum-Additional Advocate General submitted that there is no such substantial change in circumstance or supervening facts after dismissal of the first bail application by this Court vide its order dated 13.09.2021 on merit, which could entitle the petitioner to renew prayer for pre-arrest bail. Placing reliance upon a judgment of Hon'ble Apex Court of India in case of G.R. Ananda Babu v. State of Tamil Nadu & Anr., (2021) SCC OnLine SC 176, learned Government Advocate submitted that this successive bail application under Section 438 Cr.P.C. is not maintainable.
5. Relying on a judgment of the Hon'ble Apex Court of India in case of Kapil Agarwal & Ors. v. Sanjay Sharma & Ors., (2021) 5 SCC 524, learned AAG submitted that the sche
The legal position on renewal of prayer for pre-arrest bail cannot preclude an accused only on the ground of dismissal of the first bail application on merit. The court must consider substantial chan....
Successive bail applications require substantial change in circumstances; prior denials must be respected to prevent judicial abuse.
Second anticipatory bail petitions under Section 438 Cr.P.C. are maintainable if substantial changes in circumstances are demonstrated; mere reliance on new documents is insufficient.
Second or subsequent bail applications can be filed when there are change in circumstances, so that petitioner could establish entitlement of bail/anticipatory bail in view of change in circumstances....
A second or successive anticipatory bail petition is maintainable only if substantial changes in circumstances are demonstrated; mere reiteration of previous grounds is insufficient.
(1) Anticipatory bail petition – Once first anticipatory bail is denied without there being any change in fact situation, second application for same relief under Section 438 Cr.P.C. cannot be entert....
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