JIVARAJ Vs. THE STATE OF MAHARASHTRA AND ORS.

JUDGEMENT

(1.) The application is filed under section 438 of Criminal Procedure Code for anticipatory bail in RCC No. 158/2013 which is presently pending in the Court of Judicial Magistrate, First Class, Ambajogai. The case is filed for offences punishable under sections 420, 467, 468, 471 etc. of Indian Penal Code and it can be said that section 120-B of I.P.C. can also be used in view of the nature of allegations. Initially the chargesheet was filed against 42 accused persons, but only four persons faced trial as their case was separated as they were available and they are convicted and sentenced for offences of creating false record and cheating the complainant Society. From the evidence given in that case and during trial of that case against four accused, the learned J.M.F.C. passed order against applicant under section 319 of Cr.P.C. and non bailable warrant is issued against the present applicant. The crime was registered in aforesaid case on the basis of report given by present applicant and now he is to face the trial for the same offences. The order made by the learned J.M.F.C. under section 319 of Cr.P.C. was challenged by the applicant by filing the revision in Sessions Court and by filing further proceeding in this Court. He could not succeed in the said proceedings and it can be said that he has not challenged the said order further. Both the sides are heard.

(2.) The learned counsel for applicant mainly submitted that as the order is made under section 319 of Cr.P.C., there will be entire trial which can be called as de-nova trial against the present applicant and there will be no reason for the arrest of the accused and he can be made available after taking bond from him. He placed reliance on the case reported as [Harinarayan G. Bajaj Vs. State of Maharashtra and Ors., 2010 11 SCC 520]. In this case, the Apex Court has discussed the procedure which needs to be followed when a person is made accused by using the provision of section 319 of Cr.P.C. There cannot be dispute over the proposition made. The present matter involves altogether different point. The point is whether the applicant is entitled to be released on anticipatory bail under section 438 of Cr.P.C. when the Criminal Court has used the section 319 of Cr.P.C. and has issued warrant as process against the present applicant.

(3.) For ascertaining the right of the present applicant, something needs to be said about the case itself. Present applicant has been working as a Chairman of Seva Sahakari Sanstha from Aswalamba, Tahsil Parli Vaijnath, District Beed.