Vikash and Another vs The State of Rajasthan

R.S. Chauhan, J.—The petitioners are aggrieved by the order dated 04.03.2013, passed by the Additional Sessions Judge, Khetri, whereby the learned Judge has dismissed the petitioners'' application u/s 70(2) Cr.P.C. for converting the non-bailable warrants into bailable ones. In brief, the facts of the case are that on 01.12.2011, the complainant lodged a written report at Police Station Singhana, District Jhunjhunu, alleging therein that on 01.12.2011, in the morning at about 4.00 a.m., when his daughter had gone out of her house to answer the call of nature, the accused, namely Ravi Kumar, Amit Kumar, Vikash and Deshram had forcibly abducted her. On the basis of above report, an FIR bearing No. 303/2011 was registered for the offences under Sections 363 and 366 IPC. After completion of investigation, on 05.03.2012 the police submitted a charge-sheet against the accused Amit Kumar for the offences under Sections 363, 366 and 376 IPC and for the offences under Sections 363, 366(A) and 120B IPC against the accused Ravi Kumar and Ajit. Thereafter, the trial Court framed the charges under Sections 363, 366 and 376 against the accused Amit Kumar and under Sections 363, 366(A) and 120B IPC against the accused Ravi Kumar. During trial, the statements of prosecution witnesses, namely Kamla (PW 1), Sushila Devi (PW 2), Mahendra Singh (PW 3), Kailash Chand (PW 4) and Kumari Sonu (PW 5), were recorded.

Thereafter, the complainant moved an application u/s 319 Cr.P.C. before the trial Court, stating therein that in the alleged incident, accused Santosh, Sarita, Vikash and Deshraj were also involved. Therefore, cognizance may be taken against these accused for the offences under Sections 363, 366 and 376(2)(g) IPC. By its order dated 21.02.2013, while partly allowing the application u/s 319 Cr.P.C., the learned trial Court observed that no case is made out against accused Smt. Santosh Devi and Smt. Sarida. But it took cognizance for the offences under Sections 363, 366(A), 120B and 376(2)(g) IPC against the present petitioners; they were summoned through arrest warrants. The petitioners moved an application before the trial Court for converting the non-bailable warrants into bailable ones. But the said application has been dismissed by the trial Court by order impugned dated 04.03.2013. Hence, this petition before this Court.

The learned counsel for the petitioner has relied upon the case of Suresh Chand and Others Vs. State of Rajasthan and Another and the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, in order to plead that since the process was issued u/s 319 Cr.P.C., at the first instance, the concerned Court should not have issued a non-bailable warrants of arrest. In fact, it should have issued bailable warrants of arrest in order to ensure that the petitioners do appear before the concerned Court.

On the other hand, the learned Public Prosecutor has vehemently opposed the stand taken by the learned counsel for the petitioners. According to her, if the offence is grave one, then the trial Court would be justified in issuing non-bailable warrant. In the present case, the petitioners are alleged to have committed the offences under Sections 376(2)(g), 363 and 366 IPC. Therefore, according to her, they are alleged to have committed a grave offence.

Heard the learned counsel for the parties, perused the impugned order and considered the case law, cited at Bar.

Although in the case of Inder Mohan Goswami & Anr. (supra), Hon''ble the Supreme Court had opined that ordinarily at the first instance, summons should be issued, but simultaneously it had equally held that in a case of grave offence, non-bailable warrant could be issued in order to procure the presence of the accused. In the present case, the petitioners are alleged to have committed the offence u/s 376(2)(g) IPC-undoubtedly a grave offence. Therefore, neither the case of Inder Mohan Goswami & Anr. (supra), nor the case of Suresh Chand & Ors. (supra), come to the rescue of the petitioners. Hence, this Court does not find any merit in this petition, it is hereby dismissed. The stay application also stands dismissed.