PREMVATI Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) This application has been filed by the complainant petitioner Smt Premvati, victim of rape for cancelling the bail granted to the accused under section 438 Code Criminal Procedure by the learned Addl. Sessions Judge, Jaipur City, Jaipur, exercising his power as Sessions Judge, Jaipur City Jaipur. A detailed order has been passed by the learned Judge, wherein he has considered the infirmities in the prosecution's case. The order passed by the learned Judge, could be said to be a good order had it been passed in an application for bail under Sec. 439 Cr PC but it cannot be appreciated at all in an application for hail under section 438 Code Criminal Procedure where the considerations are totally different.

(2.) The Legislature, enacted the provisions about anticipatory bail in order to protect the humiliation of an honest and responsible person where the allegations are levelled for ulterior motives or political considerations or otherwise. The provisions under section 438 Code Criminal Procedure can certainly not he pressed in service and come to the aid as an arm to the person who commits a wrong which is not acceptable to the society.

(3.) Learned counsel for the non-petitioner submitted that although circumstances in the case lead to an irresistible conclusion that the petitioner was the consenting party and the accused has falsely been implicated for offence under Sec. 376 Indian Penal Code. He may be correct but at the same time accused was in knowledge of the fact that the petitioner is somebody's wife and he could not lead her to have an adulterous life. I am conscious that adultery is not a cognizable offence and the Court can on;y proceed when a complaint is filed in that respect but at the same time, a person leading an adulterous life cannot be said to be entitled to the benefit of getting indulgence under Sec. 438 Code Criminal Procedure and in my opinion, therefore, the order passed by the learned Judge, is contrary to the settled principle of law and deserves to be cancelled. It has been argued that the accused is tempering with the evidence and for that affidavits have been filed. I do not attach any value to the affidavits filed as they have been mechanically drawn and the person drafting and filing has even not seen as to whether it is an affidavit on behalf of male or female. This ground therefore, has only been raised to be rejected.