GIRRAJ PRASAD MEENA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant petition under Sec. 482 Crimial P.C. is directed against the order dated 26.7.2006 passed by the learned Additional Chief Justice Magistrate No. 2, Bharatpur taking accused-petitioner in custody pursuant to the cognizance taken for offence u/S. 376 I.PC.

(2.) The relevant facts are that a complaint came to be lodged by Rajasthan Prasad on 11.11.2005 before the aforesaid court which was forwarded u/S. 156(3) Crimial P.C. to Police Station Mathura Gate, Bharatpur for investigation. The case of the complainant was that the accused was his neighbour and used to come to his house. He used to give eatables to his daughter Kumari Priyanka who was below 13 years of age. He committed rape with her and threatened her with dire consequences. He committed her sexual exploitation for about 6 months. On 9.11.2005 when his daughter was all alone in the house, the accused came there. When he was committing rape with Kumari Priyanka he was caught red handed by the complainant and his wife. The police registered a case for offence u/S. 376 Penal Code but at the investigation filed the challan for offence u/S. 354 IPC. The said offence being bailable, the police released the accused-petitioner on bail u/S. 436 Crimial P.C. The trial court took cognizance vide its order dated 3.7.2006 for offence u/S. 376 Penal Code without passing any order of cancellation of his bail. When the accused appeared before the court on 26.7.2006, he was taken into custody in connection with the offence u/S. 376 IPC. The said order is under challenge in this petition.

(3.) His learned counsel has contended on the strength of Sukhpal Vs. State of Rajasthan : 1988 (1) RLW 283, Moti Lal & Ors. Vs. State of Rajasthan : 1987 RCC 347 and Vijendra Kumar Vs. State of Rajasthan : 1988 Cr.L.R. (Raj.) 689 that the order of the learned trial court taking the accused-petitioner into custody without passing order of cancellation of bail already granted to him is not only illegal and unsustainable but also clearly amounts to abuse of the process of the law. Learned Public Prosecutor also could not defend the order impugned.