Avdhesh Patel vs State Of Rajasthan And Ors

Heard learned counsel for the parties. Perused the material available on record.

By way of this application under Section 439(2) Cr.P.C., the petitioner complainant Avdhesh Patel has approached this Court seeking cancellation of bail granted to respondent No.2 Dalpat Ram by this Court vide order dated 20.03.2017 in S.B. Criminal Misc. Bail Application No.684/2017 in connection with FIR No.240/2016 registered at the Police Station Kherwara for the offences under Sections 302 and 120B IPC.

The petitioner complainant has approached this Court seeking cancellation of bail granted to the respondent on the pertinent ground that after being released on bail by effect of the order dated 20.03.2017, the respondent Dalpat Ram indulged in offensive activities which tantamount to misusing liberty of bail and has breached the terms and conditions of the bail order. In support of the application for cancellation of bail, the petitioner has placed on record, copy of an application dated 15.05.2017 addressed by the petitioner to the SHO, Police Station Kherwara wherein, it is mentioned that after being released on bail, the accused petitioner and various other co-accused persons were roaming around hurling insinuations that the complainant as well as his family members would be killed. Documents pertaining to the proceedings drawn by the SHO, Police Station Kherwara against the respondent Dalpat Ram under Section 112 Cr.P.C. copies of FIR No.194/2017 registered at the instance of the present petitioner against the respondent No.2 and various other persons for the offences under Sections 452 and 323 IPC and the charge-sheet filed after investigation thereof have also been annexed with the bail cancellation application. Rojnamcha Report dated 04.09.2017 of the Police Station Kherwara has been annexed wherein, the police officer noted that the respondent Dalpat Ram appeared in the police station and threatened that Avdhesh would be taken care of.

Notice of the application for cancellation of bail was issued to the respondent way back on 03.01.2018 but service could be effected after fervent and repeated efforts. Shri Jitendra Ojha, Advocate filed power on his behalf but till date, neither any reply nor any counter affidavit has been filed. This Court summoned the factual report from the learned Public Prosecutor who has placed the same on record. In the factual report, the investigating officer has expressed an apprehension that the accused is an influential person of aggressive behaviour and may tamper with the prosecution witnesses. After the accused was released on bail, numerous cases have been registered against him and the tense situation prevails inter-se between the parties.

Shri K.S. Lodha, learned counsel representing the petitioner vehemently and fervently urged that the accused has misused the liberty of bail granted to him by this Court. He is continuously indulged in threatening the complainant and the witnesses. Numerous Rojnamcha entries establish the offensive activities of the accused aimed at threatening the prosecution witnesses. Charge-sheet of the criminal case registered against the accused and the proceedings undertaken under Section 122 Cr.P.C. against him provide ample proof of the prejudicial activities of the accused and if he is allowed to remain on bail, he shall impinge upon free and fair trial and as such, he implored the Court to accept the bail cancellation application and cancel the bail granted to the respondent.

Shri Jitendra Ojha, Advocate representing the respondent, on the other hand, vehemently and fervently opposed the submissions advanced by the petitioner's counsel. However, he was not in a position to dispute the fact that despite availability of ample opportunity of almost one and half months, till date, neither reply nor counter affidavit has been filed on behalf of the accused and thus, the allegations made in the bail cancellation application remain controverted. It is relevant to mention here that the investigating officer's factual report also indicates that the accused has made numerous attempts to threaten and tamper the prosecution witnesses. As per the Rojnamcha Report dated 04.07.2017, the accused hurled threats at the complainant party even in presence of the police officers. Thus, apparently, allowing the accused to remain on bail cannot be considered as being condusive to fair trial and there is every likelihood that the prosecution will be prejudiced if the accused remains at large. He has definitely and without any doubt misused the liberty of bail granted to him by this Court vide order dated 20.03.2017.

In this background, the application for cancellation of bail deserves to be and is hereby allowed. The bail granted to the accused by order dated 20.03.2017 is hereby cancelled. His bail bonds are forfeited. He shall be taken into custody forthwith. In case, the accused does not surrender within next 30 days, the trial court shall, initiate proceedings under Sections 82 and 83 Cr.P.C. and Section 244 Cr.P.C. against him.

The trial court shall expedite the proceedings.