High Court allowed the second bail application under Section 439 CrPC, citing the accused's custody duration and the prosecutrix's deliberate non-appearance to the trial court.
Accused released on bail upon furnishing a personal bond of Rs. 50,000 with two surety bonds of Rs. 25,000 each to the satisfaction of the trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc. Bail No. 10234/2018
Kantilal S/o Mangilalji, Aged About 29 Years, B/c Mali, Khudala, P.S., Falna, Tehsil Bali, Distt. Pali (Lodged At Sub Jail, Bali)
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. S.D. Purohit. For Respondent(s) : Mr. K.V. Vyas, Public Prosecutor.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
15/11/2018
Accused-petitioner, who is facing trial for offence punishable under Sections 376 & 420 IPC, in Sessions Case No.36/2017 pending before Additional District Judge, Bali, has laid this second bail application under Section 439 Cr.P.C. At the threshold, upon investigation into C.R. No.34/2017 of Police Station Falana, District Pali, the petitioner was charge-sheeted and then the case was committed to Court of Sessions, where presently trial is in vogue.
The first bail application on behalf of petitioner was dismissed by this Court on 25.07.2017 by a detailed order.
Arguing on this second bail application, it is submitted by learned counsel for the petitioner that after rejection of first bail application, there is substantial change in the circumstances inasmuch as prosecutrix herself is not turning up for deposition before the learned trial Court. Learned counsel has also placed on
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record order-sheets of the learned trial Court showing absence of the prosecutrix on more than 7-8 consecutive occasions and ultimately the learned trial Court issuing bailable warrants for summoning her. It is also argued by learned counsel that Court informed her on mobile phone also but she has not appeared to depose before the learned trial Court. Learned counsel would contend that the trial is unnecessarily being delayed because of non-cooperation of the prosecutrix, which is prolonging the agony of petitioner, who is in custody since 14.05.2017. It is also submitted by learned counsel that there was consensual relationship between prosecutrix and the accused-petitioner and as such it is rather difficult to comprehend that it is a case of rape within the meaning of Section 376 IPC. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in Criminal Appeal No.504 of 2018 (arising out of SLP (Crl.) No.454 of 2017), decided on 06.04.2018.
Per contra, learned Public Prosecutor has opposed the second bail application of petitioner. It is submitted by learned Public Prosecutor that considering the serious delinquencies, it would not be appropriate to enlarge the petitioner on bail.
I have bestowed my considerations to the arguments advanced at the Bar and perused the materials available on record.
While it is true that the allegations against petitioner are serious in nature, but then, for proving allegation of rape, statements of the prosecutrix are very much significant and from the order-sheets of learned trial Court, it is clearly discernible that she is deliberately avoiding appearance before the learned trial Court. The factum of consensual relationship too is a mitigating
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factor and in view of the judgment referred to supra, relied upon by learned counsel for the petitioner, I feel persuaded to accept this second bail application.
Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner Kantilal S/o Mangilalji, arrested in connection with F.I.R. No.34/2017, Police Station Falana, District Pali, may be released on bail; provided he furnishes a personal bond of Rs.50,000/- with two surety bonds of Rs.25,000/- each to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.
Twinkle Singh/139
2 issues framed by the court
Whether bail should be granted in a second application despite the first being dismissed, given the prosecutrix's non-appearance.
Whether the allegation of rape can be inferred when there is evidence of a consensual relationship between the parties.
Colour shows how this judgement treated each authority
Criminal Appeal No.504 of 2018 (arising out of SLP (Crl.) No.454 of 2017)Relied on¶15
3 provisions across 2 enactments
Kantilal S/o Mangilalji
State of Rajasthan
P.K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
