- (1.) THE petitioner, Jalish Pradhan @ Jalish Khan, has challenged the order dated 29.10.2012 passed by the Additional District & Sessions Judge No.2, Deeg, District Bharatpur, whereby he has initiated proceedings against the petitioner under Section 82-83 Cr.P.C. He has also challenged the order dated 7.1.2013 whereby the learned Judge has issued warrant of arrest against the petitioner.
(2.) MR . Biri Singh Sinsinwar, the learned senior counsel for the petitioner, has contended that even after recording the statement of the prosecutrix under Sections 161 and 164 Cr.P.C., the police did not file charge-sheet against him. Instead, the police filed a charge-sheet only against the co-accused Nisar. Secondly, during pendency of the trial, the prosecution had filed an application under Section 319 Cr.P.C. for adding the petitioner as accused as evidence had started trickling in against him. Thirdly, although initially the learned Judge had issued a bailable warrant by order dated 23.7.2012, but eventually by order dated 7.1.2013, the petitioner was declared as absconder and a non-bailable warrant was issued against him. Fourthly, according to the order dated 24.9.2012, the learned trial court had concluded that the police was hand-in-gloves with the petitioner, and other co-accused persons, and was not executing the bailable warrants against them. Therefore, it directed that a separate proceeding be initiated against the SHO, Police Station Kaman, Shiv Ganesh, ASI, and against those police personnel who had claimed that they had gone to the house of the petitioner to execute the bailable warrant, namely Ram Niwas, Belt No.883, and Vinod, Belt No.1270. Since the learned trial court had already concluded that the police has not duly executed the bailable warrant, it was not justified in initiating the proceedings under Section 82-83 Cr.P.C. against the petitioner by order dated 29.10.2012. Lastly, in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and Others [(2007) 12 SCC 1], the Supreme Court has already opined that the courts should be reluctant to issue a non-bailable warrant against an accused person at the very first step of summoning him to stand trial. However, the learned Judge has issued the non-bailable warrant at the very first instance by order dated 7.1.2013. Therefore, the said order deserves to be interfered with. On the other land, Mr. G.S. Fauzdar, the learned Public Prosecutor, and Mr. Deen Dayal Sharma, the learned counsel for the prosecutrix, have vemently raised the following contentions before this court: firstly, the petitioner happens to be the husband of the sitting MLA, Smt. Zahida Khan. Thus, he wields an enormous political power in the area. Secondly, the prosecutrix in her statement recorded under Section 164 Cr.P.C. and in her testimony had clearly claimed that twice she was ravished by the petitioner. Although the police may not have filed the charge-sheet against the petitioner due to his political power, but subsequently by order dated 23.7.2012, the trial court had issued process against the petitioner under Section 319 Cr.P.C. By order dated 23.7.2012, the learned trial court had issued bailable warrant against the petitioner. Hence, at the first instance, a bailable warrant had been issued, although the allegation against the petitioner was of having committed rape with the prosecutrix. Thirdly, the complainant had claimed before the learned trial court that the police is hand-in- gloves with the petitioner due to his political clout. Despite the fact that the local newspapers clearly showed him as sitting with the local political leaders and administrative officers, the police claimed that the petitioner is out of his house due to some personal work. The contention raised by the complainant was clearly noted by the learned Judge and the report of the Superintendent of Police was called for with regard to the clippings of local newspapers. Moreover, considering the conduct of the police, the learned Judge had also directed that a separate proceeding should be initiated against the police personnel for their dereliction of duty. Similarly, by order dated 29.10.2012, the police had noted wrong facts. Thus, the learned Judge was justified in concluding that the petitioner is trying to evade the law as he is well aware of the fact that a bailable warrant has been issued against him. Moreover, he has been zealously protected by the police. According to the learned counsel, since it is imperative that the petitioner should face the trial, since it is essential to ensure that he appears before the trial court, the learned Judge was certainly justified in declaring him as an absconder after the proclamation was issued under Section 82-83 Cr.P.C. Thus, the learned Judge was certainly justified in issuing a non-bailable warrant by order dated 7.1.2013. Therefore, the learned counsel have supported both the impugned orders.
(3.) HEARD the learned counsel for the parties and perused the impugned orders. Admittedly, the petitioner Jalish Pradhan is the husband of the sitting MLA, Zahida Khan. Since Zahida Khan belongs to the ruling party in the State, chances that the petitioner wields political power cannot be ruled out. Therefore, a grave possibility does, indeed, exist that the police is under the influence of the petitioner. The fact that the police is under influence of the petitioner can also be gauzed from the report submitted by the Superintendent of Police, Bharatpur dated 26.10.2012. According to him, the newspaper cuttings relate to the period from 23.8.2012 to 28.8.2012. Meanwhile, the Superintendent of Police claims that the police had received the bailable warrant on 3.9.2012. The statement made by the Superintendent of Police is clearly incorrect. For, according to the learned Judge, the bailable warrant for the petitioner was issued on 7.8.2012 and was received by the SHO, Police Station Kaman on 11.8.2012. The said bailable warrant was marked for execution on 11.8.2012 itself. According to the report of the Process Server, Kailash, dated 22.8.2012, the petitioner could not be located at his house as he had left the town for admission of his children. Moreover, according to the report of the Process Server dated 24.8.2012, it was clearly indicated that on 24.8.2012 the petitioner did not come to the Panchayat Samiti office. The bailable warrant was returned to the court on 27.8.2012. Therefore, the Superintendent of Police was not correct in claiming that the police received the bailable warrant on 3.9.2012. In fact, the police had already received the bailable warrant on 11.8.2012.;