P.D. Kudal, J.
1. This is an application under Section 431 Cr.P.C. praying for issue of a direction that in the event of arrest, the accused applicant may be enlarged on bail.
2. The facts of the case, in brief, which re relevant for the disposal of this application are that on 6.2.1978, a first information repost was lodged stating that when the election for the Sarpanch, Panch and Ward Panchs of the Gram Panchayat, Nibhers, were being held, about 60 or 70 persons, who are aslleged to be supporting the candidature of one Ganpatlal, entered the polling booth No. (sic). Where election party No. 237 was working attacked them. It was further contended that the applicant Ram Singh Gujar, took away 49 ballot papers pertaining to the election of the Sarpanch and 123 ballot papers regarding the election of the Ward Panchas and the election lists and ran away in a truck. It was further alleged that Ganpat assaulted the polling officer and tried to take away the boallot-boxes contatining the polled ballot papers.
3. An application under Section 438 Cr.P.C. was moved before the learned Sessions judge, Sawai madhopu; on behaf of Ganpatlal and the present applicant Ramsingh. The learned Session Judge, by his order dated 24.2.1978, rejected the application of Ramsingh, the persent Application and issued a direction in favour of Ganpatlal. The police registered a case under Sections 147, 342, 452, 332, 353, 395 and 323 I.P.C. against the accused persons.
4. On behalf of the accused applicant Ramsingh it has been contended that no case under Section 452 or 395 I.P.C. is made out from facts and circumstances of the case. It was further contended that the offence if any, tantamount to an election offence, for which punishment is provided under Section 135 and 136 of the Representation of the People Act, 1951. It was also contended that under these provisions, the maximum sentence is less than 3 years. Attention of the Court was also invited to the Schedule in the Code of Criminal Procedure, which provides that offences under other Acts, which are punishable up to 3 years shall be bailable. It was also contended that as the alleged incident is covered by the provisions of the Representation of the People Act, the applicability of the provisions of the Indian Penal Code would be excluded
5. On behalf of the State, the learned Public Prosecutor, Shri. M.I. Khan, was heard. He has contended that this is not a fit case in which a direction under Section 438 Cr.P.C. could be issued He has also contended that the ballot papers and the voting lists, Which have been carried away buy the accused applicant, have to be recoverd and if a direction under Section 438 Cr.P.C. is issued, it would not be possible to effect recovery of these articles. It was also contended that if a direction is issued in this case, the investigation of the case shall be hampered. He has placed reliance on Gurbaksh Singh Sibia v. State of Punjab 4 A.I.R. 19978 Punjab and Haryana 1. A case under Sections 147, 342 452 332 353 395 and 325 I.P.C. has been registered against both the accused, namely, Ganpatlal and Ramsingh. The learned Sessions judge, while issuing a direction under Section 438 Cr.P.C. in the case of Ganpatlal, observed that as offences under Section 332, 351 and 353 are boilable offences, a direction is being issued under Section 438 Cr.P.C. A direction under Section 438 Cr.P.C. can be issued only when a person has reason to believe that he is likely to be arrested on an accusation of having committed a non-bailable offence. It is also not understood how it was considered that the offence against Ganpatlal is only under Section 332 and 353 I.P.C. when a case has been registered against him under all the aforementioned sections. The first information report was lodged on 6-2-1978 and till today it is not known why the alleged recoveries have not been made. What was the reason why the accused applicant was not arrested for a period exceeding one month.
6. Having considered all the facts and circumstances of the case, it does not appear unreasonable to issue a direction under Section 438 Cr.P.C. that the accused-applicant, in the event of arrest be enlarged on bail on his executing a personal bond in a sum of Rs. 10,000/- with one surety of the like amount to the satisfaction of the S.H.O. P.S. Kailadevi, provided that the accused-application shall appear before the investigating agency whenever called upon to do so and shall not tamper or make any attempt to tamper with the prosecution witnesses and shall not leave India without the prior written permission of the Chief Judicial Magistrate, Sawai Madhopur.