ANIL SOGANI AND ANOTHER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioners have challenged the order dated 06.12.2012 passed by the learned Special Judge, SC/ST Prevention of Atrocities Cases, Jhalawar, whereby the application moved by them under Sec. 70 (2) Crimial P.C., has been dismissed.

(2.) Mr. A.K. Gupta, the learned counsel for the petitioners, has pleaded that the petitioners were not arrayed as accused by the Police when it submitted the charge-sheet against the other co-accused persons. It was after the testimonies of PW-4 Ram Singh, PW-5 Hitesh Kumar, PW-10 Abdul Rahim and PW-13 Amit Meena were recorded that the prosecution filed an application under Sec. 319 Crimial P.C. By order dated 17.11.2012, the learned trial Court had took cognizance against the petitioners and issued non-bailable warrants of arrest against them. Since, the petitioners were aggrieved by the said order, they filed an application under Sec. 70 (2) Crimial P.C. for converting the non-bailable warrants into bailable one. However, by order dated 06.12.2012 the learned Judge dismissed the said application. Hence, the petition before this Court.

(3.) Relying on the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and Others [(2007) 12 SCC 1] , the learned counsel has contended that as a first step, the learned Judge ought to have issued a summon. In case, the summon was not responded to, then he ought to have issued a bailable warrant. It is only after the bailable warrants could not be executed, then the learned Judge should have issued non-bailable warrants. However, in the present case, the learned Judge has issued non-bailable warrants that too when the process was being issued under Sec. 319 Crimial P.C. Secondly, he has also expressed an anxiety that even when persons are summoned through a bailable warrants, when they appear before the trial Court, instead of granting bail to the accused-persons, at a times, they are being sent into a judicial custody. According to him, even in the present case, when the petitioners were about to appear before the Court, they were informed that there was grave likelihood that they are likely to be sent into the judicial custody, since the offence for which they are going to stand trial is under Sections 306 I.P.C. read with Sec. 120-B I.P.C. Relying on the case of Sasaram Vs. State 1990 RCC 321 and on the case of Prakash and Others Vs. State of Rajasthan, 2004 (5) WLC 641 , the learned counsel has contended that once non-bailable warrant is converted into a bailable one, the learned trial Court should not refuse bail, and should not send the person to judicial custody. After all, issuance of process is merely a method to ensure that the accused-person appears before the learned trial Court and faces the trial. Therefore, when the accused is willing to undergo the trial, there is no reason for compromising with his liberty.