MOSAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) APPREHENDING their arrest, the accused -petitioners have moved this second application for grant of anticipatory bail under Section 438 Cr.P.C. in respect of FIR No. 103/2014 registered at Police Station Kishangarh Bas, District Alwar for the offences under Sections 143, 323, 341 & 354 and Section 308/34 IPC.

(3.) IT was submitted by the learned counsel for the petitioners that although the first application for grant of anticipatory bail filed on behalf of the petitioners has been dismissed on merit by this Court vide order dated 22.5.2014, but subsequent to that Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar reported in : (2014) 8 SCC 273 has made certain specific directions which are to be followed by the Investigating Officer before arresting a person against whom allegation for commission of an offence for which sentence to the extent of seven years is prescribed, but in the present case the Investigating Officer is bent upon to arrest the petitioners without following the directions so made by the Hon'ble Supreme Court. It was further submitted that it is the duty of the Investigating Officer to record reasons about his satisfaction why the arrest of the accused is essential, but in the present case no such reasons have been recorded. It was also submitted that according to Section 41 -A Cr.P.C. and the principle of law laid down by Hon'ble Supreme Court in the aforesaid case, notice is required to be issued to the accused before he can be arrested, but in the present case no such notice has been issued to the petitioners. It was further submitted that it is well settled legal position that if after dismissal of previous application even for anticipatory bail of an accused, new facts and circumstances are developed the accused is entitled to move subsequent application for grant of bail and the Court has jurisdiction to grant him benefit of anticipatory bail if it is found by it that there is change in the facts and circumstances of the case. In the present case, after dismissal of the first application Hon'ble Supreme Court has specifically made directions with regard to the procedure to be followed before an accused can be arrested and, therefore, the petitioners are entitled to move this second application for grant of anticipatory bail and this Court can exercise its discretion under Section 438 Cr.P.C. taking into consideration the fact that in the present case the Investigating Officer has not followed the directions so made by the Hon'ble Supreme Court. It was also submitted that looking to the nature of injuries caused, at the most it can be said an offence under Section 325 IPC is made out, however, offence under Section 308 IPC has been subsequently added without any basis. It was also submitted that after dismissal of their first application, it was not the duty of the petitioners themselves to appear before the Investigation Officer so that the interrogation and investigation can be made from them, but it was the duty of the Investigating Officer to issue notice to them to appear before him, but in the present case no such notice has been issued by the Investigating Officer to the petitioners.