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2012 Supreme(Raj) 325
[Citation : 2012(3) RLW 2737 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Tanu Kanwar (Smt.) Vs. State of Rajasthan (Rathore, J.)
HON'BLE RAGHUVENDRA S. RATHORE, J.
Tanu Kanwar (Smt.)
Versus
State of Rajasthan
S.B. Criminal Misc. Bail Application Nos. 2304 & 2076 of 2012,
decided on 13.03.2012
H.S. Rathore & Bharat Yadav, for Petitioner;
Javed Choudhary, Public Prosecutor, for State;
Amit Kumar Gupta, for Complainant
Headnote:Cr.P.C., 1973, Sec. 439: Penal Code, Secs. 363, 366, 376(2)(G), 342, 372, 373 and 120-B — Bail applications — Court below rejected bail applications after considering the statement of prosecutrix u/S. 164 Cr.P.C. — Incident took place on 26.2.2011 — Report was lodging on 3.3.2011 — Accusation against petitioner has been made mainly for offence u/S. 363, 366 IPC — Held Prosecutrix was 20 years of age — She went at her own — Her statement u/S. 164 Cr.P.C. was recorded again which reveals that no offence what so-ever had been committed by accused persons — Statement u/S. 164 Cr.P.C. should be got recorded only on the request of Investigating Officer — The statement of the prosecutrix recorded first time is in accordance with law and that alone has to be considered by the court to enlarge the accused on bail. (Paras 12 to 16)
Bail application allowed.
na-iz-la-] 1973] /kkjk 439( n.M lafgrk & /kkjk 363] 366] 376 ¼2½¼G½] 342] 372] 373 ,oa 120-[k & tekur vkosnu & na-iz-la- dh /kkjk 164 ds rgr vfHk;ksD=h ds c;ku ij fopkj djus ds ckn fuEu U;k;ky; us tekur vkosnu fujLr fd;k & fnukad 26-2-2011 dks ?kVuk ?kVh & 3-3-2011 dks ,Q-vkbZ-vkj- ntZ djkbZ & izkFkhZ ds fo:) eq[; :i ls /kkjk 363] 366 Hkk-na-la- ds rgr vijk/k gsrq vfHk;ksx yxk;k x;k & vfHkfu/kkZfjr & vfHk;ksD=h chl o"kZ dh vk;q dh Fkh & og viuh ethZ ls xbZ & na-iz-la- dh /kkjk 164 ds rgr mlds c;ku iqu% ntZ fd;s x;s ftlls Li"V gksrk gS fd vfHk;qDr izkFkhZx.k us fdlh Hkh izdkj dk vijk/k dkfjr ugha fd;k & na-iz-la- dh /kkjk 164 ds rgr c;ku vUos"k.k vf/kdkjh dh izkFkZuk ij gh ntZ fd;s tkus pkfg;s & izFke ckj ntZ fd;s x;s vfHk;ksD=h ds c;ku fof/k ds vuqlkj gS rFkk vfHk;qDr dks tekur ij fjgk djus gsrq U;k;ky; }kjk dsoy mlh ij fopkj djuk gksrk gSA ¼in la[;k 12 ls 16½
tekur vkosnu Lohdkj fd;sA
2. The accused petitioners had moved an application under section 439 Cr.P.C. before the learned Sessions Court which came to be dismissed by the learned Special Judge, Women Atrocities and Dowry matters, Jaipur city, Jaipur, by the impugned order on 28th January, 2012. The learned court below had decided the bail applications of the accused petitioners after considering the statement of the prosecutrix Rekha Kanwar under section 164 Cr.P.C. It is to be noted that in the instant case the said statement of the prosecutrix Rekha Kanwar came to be recorded on 26th March, 2011 by the learned Additional Civil Judge (Junior Division) and Metropolitan Magistrate No.18, Jaipur Metropolitan, Jaipur. Thereafter, another statement on 20th December, 2011 by the learned Civil Judge (Junior Division) and Metropolitan Magistrate No.13, Jaipur Metropolitan, Jaipur.
3. While assailing the impugned order passed by the learned court below on 28th January, 2012, the learned counsel for the petitioner has submitted that no offence is made out against the petitioners from the material on record, particularly the statement of the prosecutrix Rekha Kanwar recorded under section 164 Cr.P.C. by the learned Magistrate on 26.3.2011. Further, he has submitted that a bare perusal of the first information report goes to show that there is no accusation against the petitioner in respect of the offence under section 376 IPC. He has also submitted that a perusal of the first statement of the prosecutrix recorded under section 164 Cr.P.C. goes to show that she had gone, on her own, with Mohar Singh and willingly solemnized the marriage with him. It has been submitted that the second statement of the prosecutrix under section 164 Cr.P.C. recorded on 20.12.2011 is illegal and there was no just reason for having recorded the same before another Magistrate. Therefore, it has been submitted that the accused petitioners, who are in custody, be enlarged on bail.
4. Learned public prosecutor as well as counsel for the complainant have opposed the bail applications filed by the petitioners and submitted that the learned court below has rightly dismissed their bail applications and no interference in the impugned order is called for by this Court. They have submitted that the prosecutrix has levelled allegations against the petitioners for the offence under section 363 and 366 IPC as well as under section 376 IPC. It has also been submitted by them that the earlier statement of the prosecutrix under section 164 Cr.P.C. recorded by the learned Magistrate on 26.3.2011 was not with her free will and rather it was under pressure. Therefore, the father of the prosecutrix had moved an application to again record the statement of the prosecutrix before the learned Magistrate. In the statement of the prosecutrix recorded under section 164 Cr.P.C. on 20.12.2011, she has levelled allegations against the petitioner and, therefore, the instant bail application deserves to be dismissed.
5. After giving my thoughtful and anxious consideration to the submi-ssions made by the counsels for the rival parties as well as on careful perusal of the material on record and the relevant principle of law on the question involved herein, I am of the opinion that the bail applications have merit.
6. The report in the instant case was lodged by Hanuman Singh son of Mool Singh, the father of the prosecutrix, on 3.3.2011 in respect of an incident which is said to have taken place on 26.2.2011. A perusal of the said report goes to show that the accusation against the petitioner has been made mainly for the offences under sections 363 and 366 IPC. During the course of investigation a statement of the prosecutrix Rekha Kanwar was recorded und
