- (1.) Heard learned counsel for the parties.
(2.) The complainant-petitioner has filed this application under Section 439 (2) Cr.P.C. with a prayer to cancel the bail granted to the accused-respondent by the Co-ordinate Bench of this Court vide order dated 18.2.2011 in S.B.Criminal Misc.Bail Application No.1106/2011.
(3.) Brief relevant facts for the disposal of this application may be stated as below:- (i) The petitioner filed a complaint for offences under Sections 420, 406, 467, 468, 471 read with Section 120-B IPC against the respondent and some other accused before Judicial Magistrate No.8, Jaipur City, Jaipur and the same was sent for investigation to Police Station, Shastri Nagar, Jaipur under Section 156 (3) Cr.P.C. and on that basis FIR No.113/2008 was registered for the aforesaid offences and investigation commenced. (ii) During investigation the respondent was arrested on 27.8.2008 and he was sent to police custody upto 30.8.2008 by the Court vide remand order dated 28.8.2008. His bail application filed under Section 437 Cr.P.C. was dismissed by the aforesaid Court and application under Section 439 Cr.P.C. was dismissed by the Additional Sessions Judge No.3, Jaipur City, Jaipur vide order order dated 12.9.2008 in Criminal Misc.Bail Application No.249/2008. (iii) Thereafter, the respondent filed S.B.Criminal Misc.Bail Application No.8042/2008 before this Court under Section 439 Cr.P.C. and the same was dismissed by Hon'ble Mr.Justice M.N.Bhandari vide order dated 22.11.2008 on merit. (iv) After investigation charge-sheet was filed on 25.11.2008 before Judicial Magistrate No.8, Jaipur City, Jaipur and on that basis Criminal Case No.482/2008 was registered. (v) The respondent filed an application on 25.11.2008 itself for release on bail under Section 437 read with Section 167 (2) Cr.P.C. on the ground that the charge-sheet has been filed after expiry of 90 days and, therefore, he is to be compulsorily released on bail. The learned Magistrate dismised the application vide order dated 28.11.2008 with a finding that the charge-sheet has been filed on 90th day from the date of first order of remand of the respondent. (vi) The respondent then filed application for bail under Section 439 read with Section 167 (2) Cr.P.C. on the same ground and it was allowed by the Additional Sessions Judge No.3, Jaipur City, Jaipur vide order dated 5.1.2009 in Criminal Misc.Bail Application No.500/2008 with a finding that the charge-sheet has been filed after expiry of 90 days. According to the Court the period of 90 days expired on 24.11.2008. (vii) The State of Rajasthan moved application under Section 439 (2) Cr.P.C. before the High Court for cancellation of bail granted to the respondent which was registered as S.B.Criminal Misc.Application (Cancellation of Bail) No.3447/2009 but the same was dismissed as not pressed vide order dated 27.7.2009 and 7.8.2009 with liberty to file application for cancellation of bail under Section 439(2) Cr.P.C. before the Sessions Judge, Jaipur City, Jaipur. (viii) In pursuance of the aforesaid liberty, the State of Rajasthan filed application for cancellation of bail under Section 439 (2) Cr.P.C. before the learned Sessions Judge, Jaipur City, Jaipur in the year 2009 itself and the same was registered as Criminal Application No.3342/2009. This application for cancellation of bail was dismissed by the learned Sessions Judge vide order dated 13.11.2010 on the ground that efforts to serve the notice on the respondent have failed. The learned Sessions Judge ordered to consign the file to record without considering the application on merit. (ix) In the meanwhile, the respondent during trial absented from the trial Court on 27.10.2010 and, therefore, his bail bonds were forfeited and it was ordered that he may be summoned by way of warrant of arrest. It appears that during trial the respondent personally appeared before the trial Court on 8.2.2010 and on each and every subsequent date fixed, he sought exemption from personal appearance and ultimately did not appear on 27.10.2010. (x) The respondent was arrested by the Police only on the direction made by the High Court in Criminal Misc.5th Bail Application No.10985/2010 filed by the co-accused-Pooran Mal vide order dated 16.12.2010. After his arrest on 21.1.2011, the respondent moved application for grant of bail under Section 437 Cr.P.C. but the same was dismissed by the trial Court vide order dated 22.1.2011. It is to be noted that in the order dated 22.1.2011, the case number was wrongly mentioned as 482/2006 whereas the correct number was 482/2008. (xi) The respondent then filed application under Section 439 Cr.P.C. before the Additional Sessions Judge No.8, Jaipur Metropolitan, Jaipur as Criminal Misc.Bail Application No.101/2011 but the same was dismissed vide order dated 25.1.2011. In this order also the case number was wrongly mentioned as 482/2006. (xii) Thereafter, the respondent filed S.B.Criminal Misc.Bail Application No.1106/2011 before this Court and the same was allowed by the Co-ordinate Bench vide order dated 18.2.2011. In the aforesaid bail application, FIR number was not mentioned and the number of criminal case pending before the trial Court was mentioned as 482/2006 whereas the correct case No. is 482/2008. In the bail application this fact was also not mentioned that the regular bail application moved by the respondent during investigation has been dismissed by the Co-ordinate Bench on merit vide order dated 22.11.2008 in S.B. Criminal Misc.Bail Application No.8042/2008 and the respondent was granted benefit of bail by the learned Additional Sessions Judge No.3, Jaipur City, Jaipur vide order dated 5.1.2009 under Section 167 (2) Cr.P.C. due to the reason that charge-sheet was not filed within the prescribed period of 90 days. This fact was also not disclosed in the application that the State Government moved application for cancellation of bail under Section 439 (2) Cr.P.C. and the same was dismissed by the Sessions Judge, Jaipur City, Jaipur vide order dated 13.11.2010 due to the reason that respondent could not be served. (xiii) The co-accused-Pooran Mal Saini filed S.B.Criminal Misc.Bail Application No.7341/2008 before this Court but the same was dismissed by the Co-ordinate Bench on merit vide order dated 19.12.2008. The co-accused filed second application for grant of bail before the High Court which was registered as S.B.Criminal Misc. 2nd Bail Application No.948/2009 and the same was dismissed by the same Co-ordinate Bench on merit vide order dated 13.2.2009. During the course of hearing this fact was brought to the knowledge of learned Co-ordinate Bench that despite dismissal of application of bail moved by the respondent on merit vide order dated 22.11.2008, he was enlarged on bail pursuant to the provisions of Section 167 (2) Cr.P.C. as the charge-sheet could not be filed within the time prescribed. The Co-ordinate Bench issued notice to the concerned investigating officer and the file was ultimately closed vide order dated 23.11.2010 by the reason that it was stated before the Co-ordinate Bench that warrant of arrest has been issued against the respondent on account of bail jump and he is likely to be arrested soon. The co-accused-Shri Pooran Mal in the meanwhile moved third application for grant of bail which was registered as S.B.Criminal Misc. 3rd Bail Application No.6032/2009 and the same was dismissed vide order dated 11.8.2009. It was also directed to the Public Prosecutor to inform the Court with regard to the progress of cancellation of bail granted to the respondent. Thereafter, the co-accused filed 4th bail application which was registered as S.B.Criminal Misc.4th Bail Application No.5259/2010. During the course of hearing of the aforesaid bail application it was brought to the knowledge of the Co-ordinate Bench that the respondent is avoiding service of notice issued by the Sessions Judge in application for cancellation of bail filed against him. Vide order dated 27.7.2010 It was directed that the Court below is expected to get the notices served for cancellation of bail upon the respondent by passing the appropriate orders. The 4th bail application filed by the co-accused-Shri Pooran Mal was ultimately dismissed by the Co-ordinate Bench vide order dated 16.11.2010 as no one appeared on his behalf on the date fixed. Thereafter, co-accused-Shri Pooran Mal Saini moved 5th application for grant of bail before the High Court and the same was registered as S.B.Criminal Misc.5th Bail Application No.10985/2010 and the same was dismissed by the Co-ordinate Bench vide order dated 1.2.2011. During the course of hearing of the aforesaid bail application, it was brought to the knowledge of the Co-ordinate Bench that the respondent, the main accused, has been arrested who was earlier absconding and, therefore, it was directed to the trial Court that it would complete the trial within the specified period keeping in mind the provisions of Code of Criminal Procedure.;