REWAT DAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application for anticipatory bail on behalf of Rewat Dan and four others namely, Ber Dan, Ridkaran, Bhayaria and Budiya, who stand involved in a criminal case under Section 395 of the Indian Penal Code which is pending in the court of Munsif and Judicial Magistrate, District Jodhpur.

(2.) THE case of dacoity against the five petitioners has been instituted upon a complaint filed by Smt. Madan Kan-war in the court of the said Magistrate on 28-'8i69. The allegations in the complaint were that all the five petitioners made a concerted attack on the complainant and forcibly snatched a box containing ornaments from her hand while she was proceeding towards her house after getting down from train at Mathania Railway Station on 2-6-69 at about 11-15 p. m. According to the complainant, she was taken to police station Mathania by her mother-in-law soon after the occurrence,, but the police did not record her first information report for reasons best known to it. She was then brought by her husband's sister to Jodhpur where she was medically examined as to her injuries at Mahatma Gandhi Hospital on 3-6^69. She was admitted in the hospital for treatment of her injuries. In the evening her husband came to know from her about the occurrence. The husband of Smt. Madan Kanwar made an application to the Superintendent of Police which was forwarded to the Station House Officer, Mathania for necessary action. The Station House Officer, however, did not care to take any action on the basis of this application. Hence the complainant made a complaint in writing to the court of the Munsif and Judicial Magistrate, District Jodhpur. The learned Magistrate did not take cognizance upon the complaint but forwarded it to the Station House Officer for investigation under Subsection (3) of Section 156 of the old Code of Criminal Procedure. The police made an investigation into the complaint and arrived at a conclusion that no such incident as alleged by the complainant had taken place at the alleged time and place and that Rewat Dan and others were falsely dragged in this case on account of the complainant having been seen by them in illicit intimacy with one Shamla, The police gava a final report accordingly, but the learned Magistrate being not satisfied with the final report given by the police held a preliminary inquiry into the truth of allegations made in the complaint and upon finding that there was sufficient ground for proceeding issued processes against all the petitioners in order to secure their attendance in his court. The petitioners appeared in the court and were released on bail by the learned Magistrate on 6-6-70. As the proceedings were instituted otherwise than a police report the. learned Magistrate proceeded to make an inquiry preparatory to commitment under Section 208 of the old Code of Criminal Procedure. He recorded the statement of the complainant and her witness Smt, Shobha and adjourned the case for recording statements of the witnesses of the defence. Later on the new Code of Criminal Procedure came into force on 1-4-74 wherein it was provided that every inquiry under Chapter XVIII of the old Code which was pending immediately before the date on which the new Code came into force could be dealt with and disposed of in accordance, with the provisions of the new Code. The. learned Judicial Magistrate District, Jodhpur was, therefore, of the view that he would henceforth follow the procedure laid down in Section 209 of the new Code. The petitioners, therefore, adprehended that they would be committed to the court of Session for trial and would bo remanded to custody during and until the conclusion of the trial in accordance with the new procedure relating to commitment of cases exclusivey triable by the court of Session. Having this apprehension in their minds they have applied to this Court for direction for grant of bail in the event of their arrest at the time of commitment of the case in the court of Session.

(3.) NOTICE of this application was given to Shri G. A. Khan acting under the directions of the Public Prosecutor. Shri G. A. Khan has opposed the bail application and has contended before me that this Court has no power to issue direction under Section 438 of the Code of Criminal Procedure for grant of bail to persons who are already on bail and facing inquiry in the court of the committing Magistrate and that the provisions of Section 438 of the new Code of Criminal Procedure are applicable to those persons only who at the initial stage have reason to believe that they will be arrested on an accusation of having committed a non-bailable offence.