Fakiro Khan (CRL.) SLP - 2019

IN THE SUPREME COURT OF INDIA
[CRIMINAL APPELLATE JURISDICTION]

SPECIAL LEAVE PETITION (CRL.) No. OF 2019
WITH PRAYER FOR INTERIM RELIEF
[Against the final judgment & order dated 15-7-2019 passed by
the Hon’ble High Court of Judicature for Rajasthan at Jodhpur
in S.B. Criminal Misc. Bail Application No.7197 of 2019]
IN THE MATTER OF:

Fakiro Khan ………Petitioner
//VERSUS//
Latif Khan & Anr. ..……Respondents
//WITH//
Crl, M.P. No. /2019:: An application for permission to file
S.L.P.
//AND//
Crl, M.P. No. /2019:: An application for exemption from
filing O.T.
//AND//
Crl, M.P. No. /2019:: An application for permission to file
Additional documents
PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

[ADVOCATE FOR THE PETITIONER: - S.R.SETIA]
INDEX
Sl. Particulars of Page No. Remar

No. Document of part ks
Part -I Part- II
to which
it (Content (Contents
belongs s of of file
Paper alone )
Book)
(i) (ii) (iii) (iv) (v)

1 Court Fee Rs.NIL
2. O/R on Limitation A A
3. Listing Proforma A-1—A2 A-1—A2
4. Cover Page of Paper A-3
Book
5. Index of Record of A-4
Proceedings
6. Limitation Report A-5
prepared by the
Registry
7. Defect List A-6
8. Note Sheet NS 1 to …..
9. List of Dates B— -
10. Copy of the final
Common judgment
1--
& order dated 15-7-
2019 passed by the
Hon’ble High Court
of Judicature for
Rajasthan at
Jodhpur in S.B.
Criminal Misc. Bail
Application
No.7197 of 2019.
11. Special Leave
Petition (Crl.) with
affidavit.
12. APPENDIX OF
RELEVANT
PROVISION ::
i) U/s
302/365/51
1 IPC.
ii) U/s
5(m)/6/18
POCSO Act
iii) U/s 439
Cr.P.C
13. ANNEXURE-P/1::
True translated
copy of the FIR
No.0006 dated
10.02.2019 U/s
302 IPC lodged at
Police Station Sam,
District Jaisalmer,
Rajasthan
14. ANNEXURE-P/2::
True partially
translated partially
typed copy of the
Post Mortem Report
dated 10.02.2019
of deceased
Saddam
15. ANNEXURE-P/3::
True translated
copy of the
statement dated
17.02.2019 of
Mukhtyar Khan
U/s 161 Cr.P.C in
Crime case no.06
dated 10.02.2019
U/s 302 IPC
16. ANNEXURE-P/4::
True translated
copy of the
statement dated
18.02.2019 of Smt.
Animat U/s 161
Cr.P.C in Crime
case no.06 dated
10.02.2019 U/s
302 IPC
17. ANNEXURE P/5::
True translated
copy of the
Statement dated
18.02.2019 of the
Petitioner Fakiro
Khan U/s 161
Cr.P.C in Crime
case no.06 dated
10.02.2019 U/s
302 IPC
ANNEXURE P/6:
True translated
copy of the
statement dated
27.02.2019 of
Usman Khan U/s
161 Cr.P.C in
Crime case no.06
dated 10.02.2019
U/s 302 IPC
ANNEXURE P/7:
True translated copy
of the statement
dated 28.02.2019 of
Rafiq Khan U/s 161
Cr.P.C in Crime
case no.06 dated
10.02.2019 U/s
302 IPC
ANNEXURE P/8:
True translated
copy of the call
details report of
Accused Latif,
witness Rafiq and
deceased Saddam
ANNEXURE P/9:
True translated
copy of the
statement of Rafiq
Khan recorded U/s
164 Cr.P.C before
the Chief Judicial
Magistrate;
Jaisalmer
ANNEXURE P/10:
True typed copy of
the Visera Report
dated 09.04.2019
of deceased
Saddam as
prepared by the
Doctors of Regional
Forensic Science
Laboratory,
Jodhpur, Rajasthan
True typed copy of
the Visera Report
dated 09.04.2019
of deceased
Saddam as
prepared by the
Doctors of Regional
Forensic Science
Laboratory,
Jodhpur, Rajasthan
ANNEXURE P/11:
True translated
copy of the Charge
sheet o.1 dated
03.05.2019 in FIR
No. 0006 dated
10.02.2019 U/s
302 IPC lodged at
Police Station Sam,
District
Jaisalmer
ANNEXURE P/12:
True translated
copy of the order
dated 28.05.2019
passed by the Ld.
Trial Court in Bail
Application no.
16/2019 U/s 439
Cr.P.C
ANNEXURE P/13:
True typed copy of
the relevant portion
of part of the Port
Mortem report
where opinion of
doctors for death of
the deceased
Saddam
ANNEXURE P/14:
True translated
copy of court
proceeding dated
16.07.2019 where
charge has been
framed against the
Accused/Responde
nt no.1
ANNEXURE P/15:
True translated
copy of the FIR
no.30 dated
20.07.2019 U/s
365/511 IPC
lodged at police
station Sam,
District Jaisalmer
18. Crl. M.P. No. /
2019:: An
application for
permission to file
SLP.
Crl. M.P. No. /
2019:: An
application for
permission to file
additional
documents.
19. Crl. M.P. No. /
2019:: An
application for
exemption from
filing O.T.
20. F/M -40-
21. V/A -41-
22. Memo of party -42-
23. FIR Format -43-
******************
SECTION-II
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. ……………….…. OF

2019
IN THE MATTER OF ::
Fakiro Khan ………Petitioner
//VERSUS//
Latif Khan & Anr. .……Respondents
INDEX OF FILING
S.No. DESCRIPTION COPIES COURT

FEES
1. Listing Performa 1 + 3
2. List of Dates 1 + 3
3. Copy of the final Common 1 + 3

judgment & order dated 15-7-
2019 passed by the Hon’ble
High Court of Judicature for
Rajasthan at Jodhpur in S.B.
Criminal Misc. Bail Application
No.7197 of 2019.
4. Special Leave Petition [CRL.] 1 + 3
with affidavit.
5. 1 + 3
ANNEXURE-P/1 to P/
6. Crl. M.P. No. /2019:: An 1+ 3
application for permission to file
in SLP.
7. Crl. M.P. No. /2019::An 1 + 3
application for Exemption from
filing O.T.
8.
9.
10. Vakalatnama and Memo of
Appearance.
(S.R. SETIA ) Code No.

714
Advocate for the
petitioner
New Delhi. 323, New Lawyers
Chamber’s
Dated: -8- 2019 Supreme Court of
India
Ph: 23070061
E-Mail:- srsetia34@gmail.com
SECTION II
PROFORMA FOR FIRST LISTING
THE CASE PERTAINS TO (PLEASE TICK/CHECK THE

CORRECT BOX.)
Central Act: (Title) The Indian penal Code Act
Section : U/s. 302 IPC and 5 (M) 06/18 of POCSO Act

Central Rule: (Title) U/s. 302 of IPC
Rule No(s) : N.A
State Act: (Title) N.A.
Section: U/S 5 (M) 06/18 of POCSO Act
State Rule: (Title) N.A.
Rule No(s): N.A
Impugned Interim order: (Date) NO
Impugned Final Order/Decree: (Date) 15-07-2019

High Court: (Name) Hon’ble High Court of Judicature
for Rajasthan at Jodhpur.
Names of Judges:Hon’ble Mr. Justice Vijay Bishnoi
J.,
Tribunal/Authority: (Name) N.A.
1. Nature of Matter: Criminal

2.(a) Petitioner/Appellant No.1: Fakiro Khan
(b) e-mail ID: N.A.
(c) Mobile Phone Number: N.A.
3.(a) Respondent No.1: Latif Khan & Anr.
(b) e-mail ID: N.A.
(c) Mobile Phone Number: N.A.
4.(a) Main Category classification: 014 Criminal Matters
(b) Sub classification: 1418 Others.
5. Not to be listed before: N.A.
6. (a) Similar disposed of matter with citation.
If any, & case details.:: No disposed of matter
Similar pending matter with case details:- No similar
(b) matter
Pending.
7. Criminal Matters: Yes
(a) Whether accused /convict has surrendered: Yes
(b) FIR No. No. 06/2019
(c) Police Station Sam, District- Jaisalmer (Rajasthan )
(d) Sentence Awarded: Under Trial

(e) Period of sentence undergone including period of
detention/
custody undergone:- No
8. Land Acqauisition Matters:
(a) Date of Section 4 Notification : N.A.
(b) Date of Section 6 Notification: N.A.
(c) Date of Section 17 notification: N.A.

9. Tax Matter: State the tax effect: N.A.
10. Special Category: (first petitioner/appellant only): N.A.
Senior citizen > 65 years SC/ST Woman/Child
Disabled
Legal Aid Case In custody.
11. Vehicle Number (in case of Motor Accident Claim
matters): N.A.
Date -8 -2019 (S. R. SETIA )

AOR: Advocate for the
Petitioner (s)
Registration No.714
Ph.23070061
E-mail:-
srsetia39@gmail.com
”A”
SPECIAL LEAVE PETITION (CRL.) No. ………………...OF
2019
IN THE MATTER OF:

Fakiro Khan .....………
Petitioner
//VERSUS//
Latif Khan & Anr. .. ....……
Respondents
OFFICE REPORT ON LIMITATION
1. The Petition is /are within limitation.
2. The Petition is barred by time and there is delay of … …
days in filing the same against Order dated 15–7-2019
and petition for Condonation of …………days delay has
been filed.
3. There is delay of ………. days in Refiling the petition and
petition for Condonation of ……….. days delay in Refiling
has been filed.
New Delhi (Branch
Officer)
Supreme Court of India

Date:- -8 -2019
SYNOPSIS
The aggrieved Petitioner, who is father of the deceased 13 years
old minor son, has preferred the present Special Leave Petition
against the impugned order dated 15.07.2019 passed in S.B.
Criminal Miscellaneous Bail Application No.7197/2019 passed
by the Hon’ble High Court of judicature for Rajasthan at Jodhpur
whereby the Hon’ble Court has been pleased to allow the bail
application of the Accused/Respondent no.1 filed under section
439 Cr.P.C. and subsequently directed to release the
Accused/Respondent no.1 on bail in connection with FIR
no.06/2019, U/s 302 IPC R/w section 5(m), 6, 18 of POCSO Act
2012, lodged at Police Station Sam, District Jaisalmer provided
he executes a personal bond in a sum of Rs.50,000/- with two
sound and solvent sureties of Rs.25,000/- each to the
satisfaction of learned trial court for his appearance before that
court on each and every date of hearing and whenever called
upon to do so till the completion of the trial.
It is pertinent to mention that the Hon’ble High Court has
been failed to put any condition upon the Accused/Respondent
no.1 to ensure the free and fair trial of the case in question while
releasing the Accused/Respondent no.1 on bail due to which the
Accused/Respondent no.1 dare to commit another offence
immediately after his release on bail via attempt to kidnap and
threatened the main material witness of the case namely Rafiq
Khan for which an FIR no.30 dated 20.07.2019 U/s 365/511 IPC
has been lodged at police station Sam, District Jaisalmer against
the Accused/Respondent no.1 by Rafiq Khan.
It is respectfully submitted that the Hon’ble High Court
has been judiciary erred in not appreciating the reasoned order
dated 28.05.2019 passed by the Ld. Trial court while rejecting
the bail application of the Accused/Respondent no.1 and ordered
the release of the Accused/Respondent no.1 on bail vide
unreasoned order.
It is respectfully submitted that as a matter of fact 13 years old
school going minor son (deceased) of the petitioner was subjected
to attempt of unnatural sex by the Accused/Respondent no.1
and due to fear of arrest on raising the voice by the deceased, he
was murdered by putting cloths on his mouth and noise. It is
submitted that despite being accused of such a heinous offence
punishable U/s 302 IPC R/w section 5(m), 6, 18 of POCSO Act
2012, the Hon’ble High Court has been failed to consider the
gravity/seriousness of the offence committed by the
Accused/Respondent no.1 while releasing him on bail by passing
a unreasoned impugned order against a well-reasoned order
rejecting the bail application of the Accused/Respondent no.1 by
the Ld. Trial Court.
It is respectfully submitted that while enlarging the accused on
bail, the Honourable High Court has not passed any reasoned
order as per the settled law laid down by this Hon’ble Court in
catena of Judgments while setting aside the unreasoned bail
order passed by the various High Courts time to time.
It is therefore respectfully submitted that the impugned order in
question passed by the Honble High Court of Judicature for
Rajasthan at Jodhpur is liable to be set aside by this Honourable
court for being an unreasoned order and without appreciating
the material evidence on record as appreciated by the Ld. Trial
Court while rejecting the bail application of the
Accused/Respondent no.1. It is respectfully submitted that the
reasoned order is one of the very basic requirement of natural
justice. Further impugned order is liable to be set aside in view of
the fact that the accused has threatened and attempted to
kidnap the main material witness of the case for which FIR has
already been lodged and investigation is under way and will try
to temper/influence the other material evidence/witness during
the trial if his bail order is not cancelled and he is not taken in
custody again.
LIST OF DATES AND EVENTS
10.02.2019 That upon a written complaint preferred by
Usman Khan S/o Talib Khan, an FIR bearing
no. 06/2019 dated 10.02.2019 was lodged at
Police Station Sam, District Jaisalmer U/s 302
IPC to the effect that deceased/victim Saddam
Khan S/o Fakiro khan aged about 13 years R/o

Kazi Ki Dhani was a regular student of
Government Senior Secondary School in class
7th. The deceased as usual went to his school at
9 AM on 09.02.2019 i.e. the day of incident. The
deceased carried his mobile phone bearing
number 9024480913. When the father of
deceased called him at 11:30 AM his phone was
switched off. Then father of the deceased called
his niece Rafiq Khan to go to the school and ask
him to talk to his father. Around 12 PM when
Rafiq went to the school and enquired with
teacher Kheta Ram about the Saddam, then he
replied that he was in the school before a while
but now he is not in the school please go and
enquire. Then Rafiq, informed the complainant
Usman Khan. The complainant along with many
others informed the whole village about the
disappearance of the deceased and started
searching in all possible places of the village.
The said information was also put on the social
media. however the deceased could not be
traced. When teacher Kheta ram was again
contacted over phone he could not give any
satisfactory reply. In the morning the
complainant and his family members searched
the abandoned places nearby the school then
the dead body of Saddam Khan (deceased) was

found in old Sub- health Centre which is ruin
nowadays. The school staff and the Kheta Ram
were suspected to have killed the deceased. It is
pertinent to mention that the said FIR was
lodged by the complainant without any consent
of the Petitioner even the Petitioner was not
aware of the story of the FIR and came to know
when FIR was lodged and copy of the same was
given to the Petitioner. True translated copy of
the FIR No.0006 dated 10.02.2019 U/s 302 IPC
lodged at Police Station Sam, District Jaisalmer,
Rajasthan is annexed herewith and marked as
Annexure P-1.
10.02.2019 That the Post Mortem of the deceased Saddam
i.e. minor son of the Petitioner was conducted
on 10.02.2019 by the Doctors of Medical and
Health Department, Shree Jawahir Hospital
Jaisalmer, however doctors did not give any
opinion on the cause of death of minor son of
the Petitioner at that time for sake of the FSL
Report. True partially translated partially typed
copy of the Post Mortem Report dated
10.02.2019 of deceased Saddam is annexed
herewith and marked as Annexure P-2.

17.02.2019 That during the investigation the statement of
Mukhtyar Khan was recorded U/s 161 Cr.P.C
wherein he has clearly stated that while he was
going to Village Sam on 09.02.2019 around
10am by Car, the Accused/Respondent no.1
Latif Khan asked for lift to him and
subsequently he dropped Latif Khan i.e.
Accused/Respondent no.1 in the Basti of Sam
on 09.02.2019 i.e. date of the incident. True
translated copy of the statement dated
17.02.2019 of Mukhtyar Khan U/s 161 Cr.P.C
in Crime case no.06 dated 10.02.2019 U/s 302
IPC is annexed herewith and marked as
Annexure P-3.
18.02.2019 That during the investigation the statement of
mother of the deceased Saddam Smt. Animat
i.e. wife of the Petitioner, was recorded U/s 161
Cr.P.C wherein she has categorically stated that
her deceased son Saddam while going to his
School on 09.02.2019 i.e. date of incident,
informed her that Latif Khan i.e.
Accused/Respondent no.1 has spoken him to
make his mobile phone sold out in Rs.5000/- to
someone from Siyambar. Thereafter statement
of the Petitioner was also recorded U/s 161
Cr.P.C on 18.02.2019 wherein he has also
stated that his deceased minor son Saddam told

him that the Accused/Respondent has spoken
his deceased son to make his mobile phone sold
out in Rs.5,000/- to someone from Siyambar.
True translated copy of the statement dated
18.02.2019 of Smt. Animat and Statement
dated 18.02.2019 of the Petitioner Fakiro Khan
U/s 161 Cr.P.C in Crime case no.06 dated
10.02.2019 U/s 302 IPC are annexed herewith
and marked as Annexure P-4 and Annexure P-
5.
27.02.2019 That during the investigation Usman Khan, who
is the main complainant in the FIR in question
and also the maternal uncle of the
Accused/Respondent no.1, has stated U/s 161
Cr.P.C that he has doubt of murder of the
deceased Saddam by his real nephew Latif Khan
i.e. Accused/Respondent, who is also heard to
be habitual of having unnatural sex and in
search of new-new persons for the said purpose.
True translated copy of the statement dated
27.02.2019 of Usman Khan U/s 161 Cr.P.C in
Crime case no.06 dated 10.02.2019 U/s 302
IPC is annexed herewith and marked as
Annexure P-6.
28.02.2019 That during the investigation statement of Rafiq
Khan Son of Mathar Khan was recorded U/s
161 Cr.P.C. who confessed that he is habitual of
having unnatural sex and had been doing
unnatural sex with Latif Khan i.e. the
Accused/Respondent no.1 for four years as Latif
Khan is also habitual of having unnatural sex.
He further stated that on dated 09.02.2019, he
met with the Accused Latif in front of the mobile
soap of Anil Khatri at Village Sam where Latif
indicated him to have sex and there both of us
moved to old Hospital at Sam where we had sex
with Latif 4-5 days before. He further stated
that when he entered into the inside room of the
Hospital he found one dead body was lying
inside the room upon enquiry Latif i.e. the
Accused/Respondent no.1 admitted that he
brought the deceased Saddam for having Sex
but as he started making noise, he pressed
saddam’s mouth and noise with shawl due to
which he died. He further stated that
Accused/Respondent no.1 Latif clearly
threatened him not to disclose this fact to
anyone otherwise he would be also killed or
implicated in false case by him. He further
stated that due to threat of
Accused/Respondent no.1 Latif, he could not

speak this fact earlier to anyone. Thereafter on
28.02.2019 the police got the call details report
of Accused/Respondent no.1 Latif Khan,
witness Rafiq Khan and deceased Saddam from
concerned operator which indicates Accused
Latif made calls to deceased Saddam on the day
of incident and it was also found that Accused
Latif used to call witness Rafiq and location of
the Accused Latif was also found near the dead
body of the Saddam was found. On the basis of
the aforesaid information the
Accused/Respondent no.1 Latif Khan was
arrested by the Police on 28.02.2019. True
translated copy of the statement dated
28.02.2019 of Rafiq Khan U/s 161 Cr.P.C in
Crime case no.06 dated 10.02.2019 U/s 302
IPC and True translated copy of the call details
report of Accused Latif, witness Rafiq and
deceased Saddam are annexed herewith and
marked as Annexure P-7 and Annexure P-8
respectively.
02.03.2019 That after recording the statement of Rafiq Khan
on 28.02.2019 U/s 161 Cr.P.C, his statement
U/s 164 Cr.P.C was got recorded before the
Chief Judicial Magistrate, Jaisalmer on

02.03.2019 wherein he reiterated his statement
gave U/s 161 Cr.P.C to the Police on
28.02.2019. True translated copy of the
statement of Rafiq Khan recorded U/s 164
Cr.P.C before the Chief Judicial Magistrate;
Jaisalmer is annexed herewith and marked as
Annexure P-9.
09.04.2019 That on 09.04.2019, Visera Report of deceased
Saddam was prepared by the Doctors of
Regional Forensic Science Laboratory, Jodhpur,
Rajasthan. True typed copy of the Visera Report
dated 09.04.2019 of deceased Saddam as
prepared by the Doctors of Regional Forensic
Science Laboratory, Jodhpur, Rajasthan is
annexed herewith and marked as Annexure P-
10.
03.05.2019 That after completion of the investigation, the
Police filed the charge-sheet no.1 dated
03.05.2019 against the Accused/Respondent
no.1 Latif Khan U/s 302 IPC R/w section
5m./6/18 of POCSO Act, 2012 before the Court
on 03.05.2019. True translated copy of the
Charge sheet o.1 dated 03.05.2019 in FIR No.
0006 dated 10.02.2019 U/s 302 IPC lodged at
Police Station Sam, District Jaisalmer is

11.
28.05.2019 That the Accused/Respondent moved a regular
bail application no. 16/2019 U/s 439 Cr.P.C
before the Special Court of POCSO whereby the
Ld. Trial Court vide its well-reasoned order
dated 28.05.2019 was pleased to reject the bail
application of the Accused/Respondent no.1
considering the gravity of heinous offence U/s
302 IPC R/w section 5m./6/18 of POCSO Act,
2012 as well as the material evidence on record.
True translated copy of the order dated
28.05.2019 passed by the Ld. Trial Court in Bail
Application no. 16/2019 U/s 439 Cr.P.C is
12.
16.06.2019 That on 16.06.2019, the Doctors who conducted
the post mortem of the deceased on 10.02.2019
gave his opinion on the cause of death of
deceased Saddam is Asphyxia on the basis of
chemical analysis of visera of the deceased
Saddam. True typed copy of the relevant portion
of part of the Port Mortem report where opinion
of doctors for death of the deceased Saddam is

mentioned is annexed herewith and marked as
Annexure P-13.
15.07.2019 That after rejecting the regular bail application
of the Accused by the Ld. Trial Court vide its
well-reasoned order dated 28.05.2019, the
Accused/Respondent preferred the SB Criminal
Miscellaneous Bail Application No.7197/2019
U/s 439 Cr.P.C before the Hon’ble High Court
for Judicature of Rajasthan at Jodhpur whereby
the Hon’ble High Court vide its impugned order
dated 15.07.2019 has been pleased to release
the Accused/Respondent no.1 on bail. It is
submitted that despite being accused of such a
heinous offence punishable U/s 302 IPC R/w
section 5(m), 6, 18 of POCSO Act 2012, the
Hon’ble High Court has been failed to consider
the gravity/seriousness of the offence
committed by the Accused/Respondent no.1
while releasing him on bail by passing a
unreasoned impugned order against a well-
reasoned order rejecting the bail application of
the Accused/Respondent no.1 by the Ld. Trial
Court. It is respectfully submitted that while
enlarging the accused on bail, the Honourable
High Court has not passed any reasoned order

as per the settled law laid down by this Hon’ble
Court in catena of Judgments while setting
aside the unreasoned bail order passed by the
various High Courts time to time.
16.07.2019 That the Ld. Trial Court after considering the
material evidence on record against the
Accused/Respondent no.1, has been pleased to
frame the charge U/s 302 IPC R/w sections
5(m)/6/18 of POCSO Act, 2012 in session case
no. 09/19 in FIR No. 0006/2019 dated
10.02.2019 U/s 302 IPC lodged at police station
Sam, District Jaisalmer, Rajasthan and
subsequently set the Trial of the case in motion
against the Accused/Respondent no.1. True
translated copy of court proceeding dated
16.07.2019 where charge has been framed
against the Accused/Respondent no.1 is
14.
20.07.2019 That on 17.07.2019 immediately after release on
bail, the Accused/ Respondent no.1 attempted
to kidnap and threatened the main material
witness of the case namely Rafiq Khan for
which a written complaint was submitted to the
police station on 17.07.2019 by Rafiq Khan and

after initial investigation of the incident, an FIR
no.30 dated 20.07.2019 U/s 365/511 IPC has
been lodged at police station Sam, District
Jaisalmer against the Accused/Respondent no.1
by Rafiq Khan and investigation of the said case
is still going on. True translated copy of the
written complaint dated 17.07.2019 and FIR
no.30 dated 20.07.2019 U/s 365/511 IPC
lodged at police station Sam, District Jaisalmer
is annexed herewith and marked as Annexure
P-15 and Annexure P-16.
_.08.2019 Hence the present Special Leave Petition
(Criminal) before this Hon’ble Court.

WITH PRAYER FOR INTERIM RELIEF
BETWEEN
POSITIO
N OF
PARTIES
IN THE IN THE IN THIS
TRIAL HIGH COURT
COURT COURT
Fakiro Khan , Not A party Not-A- Petitioner
Party
S/o Kaji Khan
R/o – Village- Kaji Ki Dhani
P.S. - Sam,
District- Jaisalmer
(Rajasthan )
//VERSUS/
/
1 Latif Khan Accused Applicant Contestin
. g
S/o Shri Kunde Khan, Responde
B/c Musalman, nt No.1
R/o-Village- Kaji ki Dhani,

P.S. Sam, District-
Jaisalmer (Rajasthan)
2 State of Rajasthan Prosecution Responde Contestin
. nt g
Through PP, Responde
Department of Home, nt No.2
State Secretariat Jaipur

(Rajasthan)
A PETITION UNDER ARTICLE 136 OF THE CONSTITUTION

OF INDIA
To,
The Hon’ble Chief Justice of India and his Companion Justices of
the Supreme Court of India, New Delhi
The Humble Petition
of the
Petitioner above named.
MOST RESPECTFULLY SHOWETH:
1. That the petitioner prefers the present Special Leave
Petition (Criminal) against the final judgment & order
dated 15-7-2019 passed by the Hon’ble High Court of
Judicature for Rajasthan at Jodhpur in S.B. Criminal
Misc. Bail Application No.7197 of 2019, whereby the
Hon’ble High Court has been pleased to allow the bail
application of the Respondent no.1 herein.
2. QUESTION OF LAW: -
That the impugned judgment raises the following questions
of law, which deserve consideration of this Hon’ble Court:
A. Whether the Hon’ble High Court has been judiciary
erred in not appreciating the reasoned order dated
28.05.2019 passed by the Ld. Trial court while rejecting
the bail application of the Accused/Respondent no.1

and ordered the release of the Accused/Respondent
no.1 on bail by passing impugned unreasoned non
speaking order.
B. Whether while enlarging the accused on bail, the
Honourable High Court has been failed to pass a
reasoned speaking order as per the settled law laid
down by this Hon’ble Court in catena of Judgments
while setting aside the unreasoned bail order passed by
the various High Courts time to time.
C. Whether the impugned order in question passed by the
Honble High Court of Judicature for Rajasthan at
Jodhpur is liable to be set aside by this Honourable
court for being an non speaking order and without
appreciating the material evidence on record as
appreciated by the Ld. Trial Court while rejecting the
bail application of the Accused/Respondent no.1.
D. Whether the impugned order is liable to be set aside in
view of the fact that immediately after releasing from jail
on bail, the Accused has threatened and attempted to
kidnap the main material witness of the case for which
FIR has already been lodged and investigation is under
way and will try to temper/influence the other material
evidence/witness during the trial if his bail order is not
cancelled and he is not taken in custody again.

E. Whether the impugned order passed by Hon’ble High
Court is wrong in view of the Judgment passed by this
Hon’ble Court in the matter of Omar Usman Chamadia
v. Abdul and Anr., JT (2004) 2 SC 176, Ram Govind
Upadhyay Vs. Sudarshan Singh & Ors. (2002) 3 SCC
598 apart from many other judgments.
3. DECLARATION IN TERMS OF RULE 2 (2)
The Petitioner states that he has not filed any other
petition seeking leave to appeal earlier before this Hon’ble
Court against the final judgment & order dated 15-7-2019
passed by the Hon’ble High Court of Judicature for
Rajasthan at Jodhpur in S.B. Criminal Misc. Bail
Application No.7197 of 2019
4. DECLARATION IN TERMS OF RULE- 4:
The Annexures-P/1 to P/ 13 produced along with the
Special Leave Petition are true copies of the
pleadings/documents which formed part of the Records of
the case in the Courts below against which order the leave
to appeal is sought for in this petition.
5. GROUNDS
That the Petitioner is filing the present Special Leave
Petition on the following grounds amongst other:
GROUNDS
A. It is respectfully submitted that the Hon’ble High Court has
been judiciary erred in not appreciating the reasoned order
dated 28.05.2019 passed by the Ld. Trial court while
rejecting the bail application of the Accused/Respondent
no.1 and ordered the release of the Accused/Respondent
no.1 on bail by passing impugned unreasoned non
speaking order.
B. It is respectfully submitted that while enlarging the accused
on bail, the Honourable High Court has not passed any
reasoned order as per the settled law laid down by this
Hon’ble Court in catena of Judgments while setting aside
the unreasoned bail order passed by the various High
Courts time to time.
C. It is respectfully submitted that the Hon’ble High Court has
been failed to appreciate that one 13 years old school going
minor son (deceased) of the petitioner was subjected to
attempt of unnatural sex by the Accused/Respondent no.1
and due to fear of arrest on raising the voice by the
deceased, he was murdered by putting cloths on his mouth
and noise. It is submitted that despite being accused of
such a heinous offence punishable U/s 302 IPC R/w
section 5(m), 6, 18 of POCSO Act 2012, the Hon’ble High
Court has been failed to consider the gravity/seriousness of
the offence committed by the Accused/Respondent no.1
while releasing him on bail by passing a unreasoned

impugned order against a well-reasoned order rejecting the
bail application of the Accused/Respondent no.1 by the Ld.
Trial Court.
D. It is therefore respectfully submitted that the impugned
order in question passed by the Honble High Court of
Judicature for Rajasthan at Jodhpur is liable to be set
aside by this Honourable court for being an non speaking
order and without appreciating the material evidence on
record as appreciated by the Ld. Trial Court while rejecting
the bail application of the Accused/Respondent no.1. It is
respectfully submitted that the reasoned order is one of the
very basic requirement of natural justice.
E. It is respectfully submitted that the impugned order is
liable to be set aside in view of the fact that immediately
after releasing from jail on bail, the Accused has threatened
and attempted to kidnap the main material witness of the
case for which FIR has already been lodged and
investigation is under way and will try to temper/influence
the other material evidence/witness during the trial if his
bail order is not cancelled and he is not taken in custody
again.
F. It is pertinent to mention that the Hon’ble High Court has
been failed to put any condition upon the
Accused/Respondent no.1 to ensure the free and fair trial

of the case in question while releasing the
Accused/Respondent no.1 on bail due to which the
immediately after his release on bail via attempt to kidnap
and threatened the main material witness of the case
namely Rafiq Khan for which an FIR no.30 dated
20.07.2019 U/s 365/511 IPC has been lodged at police
station Sam, District Jaisalmer against the
Accused/Respondent no.1 by Rafiq Khan.
G. It is respectfully submitted that the Hon’ble High Court has
been failed to appreciate the cause of death as opined by
the board of doctors after receiving the FSL Report of the
Visera of the deceased Saddam which corroborates and
strengthen the statement of the main material witness
namely Rafiq Khan against the Accused/Respondent no.1.
H. It is respectfully submitted that the impugned order
passed by Hon’ble High Court is wrong in view of the
Judgment passed by this Hon’ble Court in the matter of
Omar Usman Chamadia v. Abdul and Anr., JT (2004) 2 SC
176, Ram Govind Upadhyay Vs. Sudarshan Singh & Ors.
(2002) 3 SCC 598 apart from many other judgments.
6. GROUNDS OF INTERIM RELIEF

Because if the operation of the impugned order is not
stayed then the accused who has been released on bail
shall keep threatening and tempering the evidence and this

may endanger the safety of the Petitioner and witnesses of
the case and adversary effect the trial as for saving himself
from being punished in the present case the
accused/Respondent no.1 may commit another offence too.
7. MAIN PRAYER
For the facts, circumstances and grounds set out herein
above, it is respectfully prayed that this Hon’ble Court be
pleased to::
a) Grant Special Leave to Appeal against the final
judgment & order dated 15-7-2019 passed by the
Hon’ble High Court of Judicature for Rajasthan at
Jodhpur in S.B. Criminal Misc. Bail Application
No.7197 of 2019; and
b) Pass such other or further orders which this
Hon’ble Court deems just and proper in the ends
of justice and in the circumstances of this case.
8. INTERIM PRAYER
For the facts, circumstances and grounds set out herein
above, it is respectfully prayed that this Hon’ble Court be
pleased to::
c) Grant an ad interim ex-parte stay the operation of
final judgment & order dated 15-7-2019 passed
by the Hon’ble High Court of Judicature for
Application No.7197 of 2019; and

d) Pass such other or further orders which this
Hon’ble Court deems just and proper in the ends
of justice and in the circumstances of this case.
AND FOR THIS ACT OF KINDNESS AND JUSTICE, YOUR
PETITIONER, AS IN DUTY BOUND, SHALL EVER PRAY.
Filed on: -8-2019 Filed by
(S.R.SETIA)
Advocate for the
Petitioner
IN THE MATTER OF:

Fakiro Khan .....………Petitioner
//VERSUS//
Latif Khan & Anr. ....……Respondents
CERTIFICATE
Certified that the Special Leave Petition [Crl.] is confined
only to the pleadings before the Court/ whose order is
Challenged and the other documents relied upon in those
proceedings. No additional facts, documents or grounds have
been taken therein or relied upon in the Special Leave Petition. It
is further certified that the copies of the document/ Annexures
attached to the Special Leave Petition are necessary to answer
the questions of law raised in the petition or to make out grounds
urged in the Special Leave Petition for consideration of this
Hon’ble Court. This certificate is given on the basis of the
instructions given by the petitioner/ person authorized by the
petitioner whose Affidavit is filed in support of the S.L.P.
FLED BY
FILED ON: -8 -2019
(S.R.SETIA)
ADVOCATE FOR THE PETITIONER

CRL. M.P. No. OF 2019
IN
IN THE MATTER OF :-
Fakiro Khan ....………Petitioner
//VERSUS//
AN APPLICATION FOR PERMISSION TO FILE SPECIAL LEAVE
PETITION AGAINST THE IMPUGNED ORDER DATED 15-07-
2019 AS THE PETITIONER WAS NOT PARTY BEFORE THE
HON’BLE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
To,
The Hon’ble the Chief Justice of India and his Companion
Justices of the Supreme Court of India
The Humble petition of the
Petitioners above-named
MOST RESPECTFULLY SHEWETH:
1. That the petitioner has preferred the present Special Leave
Petition against the final judgment & order dated 15-7-

2019 passed by the Hon’ble High Court of Judicature for
Application No.7197 of 2019, whereby the Hon’ble High
Court has been pleased to allow the bail application of the
Respondent no.1 herein and subsequently the Respondent
no.1/Accused was released on bail.
2. It is pertinent to mention that the Hon’ble High Court has
been failed to put any condition upon the
Accused/Respondent no.1 to ensure the free and fair trial
of the case in question while releasing the
Accused/Respondent no.1 on bail due to which the
immediately after his release on bail via attempt to kidnap
and threatened the main material witness of the case
namely Rafiq Khan for which an FIR no.30 dated
20.07.2019 U/s 365/511 IPC has been lodged at police
station Sam, District Jaisalmer against the
Accused/Respondent no.1 by Rafiq Khan.
3. It is respectfully submitted that the Petitioner is the father
of the deceased/victim who was just 13 years old minor son
of the Petitioner and was subjected to attempt of unnatural
sex and murdered by the Respondent no.1/Accused.
4. It is respectfully submitted that the Petitioner was not
made party by the Respondent no.1/Accused before the

Hon’ble High Court in the Bail application even the Hon’ble
High Court did not give any opportunity to the Petitioner to
oppose the bail application filed of the Respondent
no.1/Accused and the Petitioner is adversely effected by
the non speaking order granting bail to the Respondent
no.1/Accused by the Hon’ble High Court vide impugned
order dated15.07.2019.
5. That being aggrieved the Petitioner has filed the
accompanying Special Leave Petition against the impugned
judgment and order dated 15.07.2019 and therefore the
Petitioner is filing the present application seeking
permission to file the accompanying Special Leave Petition.
6. That the Petitioner is the father of the deceased Saddam in
the case and is adversely effected by the impugned
judgment and order dated 15.07.2019 and thus entitled to
file the accompanying Special Leave Petition inspite of not
being a party to the bail application before the Hon’ble High
Court.
7. That this application is being made bonafide and in the
interest of justice.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court
may be pleased to:

a. permit the non petitioner to file the accompanying Special
Leave Petition against the impugned judgment and order
15-7-2019 passed by the Hon’ble High Court of Judicature
for Rajasthan at Jodhpur in S.B. Criminal Misc. Bail
Application No.7197 of 2019;
b. Pass such other and further order/or orders as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN

DUTY BOUND SHALL EVER PRAY.
Filed on: -8-2019 FILED BY
(S.R.SETIA)
Advocate of the petitioners

IN
IN THE MATTER OF :-
Fakiro Khan ....………Petitioner
//VERSUS//
AN APPLICATION FOR EXEMPTION TO FILE THE CERTIFIED

COPY OF THE IMPUGNED JUDGEMENT/ORDER DATED
15.07.2019 PASSED BY THIS HON’BLE COURT
To,
The Hon’ble the Chief Justice of India And His Companion

Justices of the Supreme Court of India
The Humble petition of the

Petitioners above-named
MOST RESPECTFULLY SHOWETH:-

Respondent herein.
2. That the certified copy of the impugned judgment dated
06.06.2016 passed by this Hon’ble Court is not available
with the Petitioner at this stage.
3. That to avoid any further delay in the hearing of this
special leave petition the Petitioner is filing a true copy of
the said order and pray that the petitioner may be
exempted from filing a certified copy of the said order
alongwith the accompanying Special Leave Petition.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court
may graciously be pleased to:-
a) Exempt the petitioner from filing the Certified copy of the
Judgment/order dated 15-7-2019 passed by the Hon’ble High
Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal
Misc. Bail Application No.7197 of 2019.
b) pass any other or further orders as may be deemed fit and
proper in the Circumstances of the Case.
Filed by,
Filed on: -8-2019

(S.R. Setia)
Advocate for the
petitioner

IN
IN THE MATTER OF :-
Fakiro Khan ..………Petitioner
//VERSUS//
AN APPLICATION FOR EXEMPTION FROM FILING OFFICIAL
TRANSLATION OF ANNEXURES P-1 to P-15 ANNEXED TO
THE SPECIAL LEAVE PETITION.
To,
The Hon’ble the Chief Justice of India and His Companion
Justices of the Hon’ble Supreme Court of India.
The humble petition of the
Petitioner above-named
Respondent herein.
2. That since the original of Annexures P-1 to P -15 is in
Hindi/hand written, the petitioner in order to avoid any
delay in the hearing of the case has got the same
translated/typed through his local counsel and is filing the
true English translation/typed copy thereof and prays that
he may be exempted from filing this annexure translated
officially.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble
Court may
graciously be pleased to:-
a) exempt the petitioner from filing the Official Translation
of Annexures P-1 to P-15 ; and
b) pass any other or further orders as may be deemed fit
and proper in the Circumstances of the Case.
Filed on: -8-2019
FILED BY
(S.R.Setia)
Advocate of the Petitioner

IN
IN THE MATTER OF :-
Fakiro Khan ..………Petitioner
//VERSUS//
AN APPLICATION SEEKING PERMISON TO FILE ADDITIONAL
DOCUMENTS AS ANNEXURE P-14 AND P-15 ALONGWITH
THE ACCOMPANYING SPECIAL LEAVE PETITION
To,
The Hon’ble the Chief Justice of India and His Companion
Justices of the Hon’ble Supreme Court of India.
The humble petition of the
Petitioner above-named

Respondent herein.
3. That after passing of the impugned judgment and order
dated 15.07.2019 by the Hon’ble High Court, the Ld. Trial
Court has been pleased to frame the charge against the
Accused/Respondent no.1 vide order dated 16.07.2019 in
the case in question which is a very relevant document and
marked as Annexure P-14 for consideration of this Hon’ble
Court while hearing of the present accompanying Special
Leave Petition.
4. That immediately after released on bail vide impugned
order dated 15.07.2019, the Respondent no.1/Accused has
attempted to kidnap and threatened one of the main
material witness of the case on 17.07.2019 for which
incident an FIR no. 30 dated 20.07.2019 has been
registered by witness Rafiq Khan at police station Sam
District Jaisalmer which is also a very relevant document
and marked as Annexure P-15 to be considered by this
Hon’ble Court while hearing of the accompanying Special
Leave Petition.
5. That Annexure P-14 and Annexure P-15 are very relevant
and related to the subsequent development after passing of
the impugned order dated 15.07.2019 and thus the
petitioner is seeking leave of this Hon’ble Court to place the
same before this Hon’ble Court alongwith the
accompanying Special Leave Petition.

PRAYER
It is, therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to:-
a) allow the present application and take the Annexure P-
14 and Annexure P-15 on record and considered the same
while hearing the accompanying Special Leave Petition.
b) pass any other or further orders as may be deemed fit
and proper in the Circumstances of the Case.
Filed on: -8-2019
FILED BY
(S.R.Setia)
Advocate of the Petitioner

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
CASE:-CRIMINAL MISC. BAIL APPLICATION NO.7197 OF

2019
MEMO OF PARTIES
Latif Khan …….Petitioner

S/o Kunde Khan,
R/o- Village- Kaji ki Dhani,
P.S. Sam, District- Jaisalmer,
Rajasthan
//Versus//
. State of Rajasthan.
Through Public Prosecutor, …….Respondent
Filed on -8 -2019 Filed by
(S.R.SETIA)
Advocate for the petitioner
in Supreme Court of India
APPENDIX
INDIAN PENAL CODE
302. Punishment for murder.—whoever commits murder shall
be punished with death, or 1[imprisonment for life], and shall
also be liable to fine.
365.:Kindnapping or abducting with intent secretly and
wrongfully to confine person : Whoever kidnaps or abducts any
person with intent to cause that person to be secretly and
wrongfully confined, shall be punished with imprisonment of
either description for a term which may extent to seven years,
and shall also be liable to fine.
511.: Punishment for attempting to commit offences
punishable with imprisonment for life or other
imprisonment.- Whoever attempts to commit an offence
punishable by this Code with (imprisonment for life) or
imprisonment, or to cause such an offence to be committed, and
in such attempt does any act towards the commission of the
offence, shall, where no express provision is made by this code
for the punishment of such attempt, be punished (with
imprisonment of any description provided for the offence, for a
term which may extend to one -half of the imprisonment for life
or as the case may be on half of the longest term of
imprisonment provided for that offence) or with such fine as is
provided for the offence or with both.
POCSO ACT, 2012 (as Amended)

5. Aggravated penetrative sexual assault
5(m).: Whoever commits penetrative sexual assault on a child
below twelve years; or
6.Punishment for aggravated penetrative sexual assault :
Whoever, commits aggravated penetrative sexual assault, shall
be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may extend to
imprisonment for life and shall also be liable to fine.
18.Punishment for attempt to commit an offence: Whoever
attempts to commit any offence punishable under this Act or to
cause such an offence to be committed, and in such attempt,
does any act towards the commission of the offence, shall be
punished with imprisonment of any description provided for the
offence, for a tem which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of the
longest term of imprisonment provided for that offence or with
fine or with both.
CODE OF CRIMINAL PROCEDURE, 1973
439: Special powers of High Court or Court of Session
regarding bail- : (1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified
in sub-section (3) of section 437, may impose any condition
which it considers necessary for the purposes mentioned in
that sub-section;
(b) that any condition imposed by a Magistrate when releasing
any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall,
before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session
or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail
to the Public prosecutor unless it is, for reasons to be
recorded in writing, of opinion that it is not practicable to
give such notice.
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter
be arrested and commit him to custody.
//True copy//
SECTION II
SPECIAL LEAVE PETITION (CRL.) NO. 1278 OF 2017
IN THE MATTER OF ::
Aman Tiwari ……
Petitioner/Applicant
//VERSUS//
Malkhan Singh & Anr. .. ..……
Respondents
INDEX OF FILING
S.No. DESCRIPTION COPIES COURT

FEES
1. FILING OF THE 1 + 3
APPLICATION FOR
DIRECTION ON BEHALF OF
THE APPELLANTS
2. 1 + 3
ANNEXURE-A/ 1 to A/
3. Crl. M.P.No. /2017 [An 1 + 3
application for Exemption
from filing O.T. with affidavit.
10.
(S.R. SETIA ) Code

No. 714
Advocate for the
petitioner
New Delhi. 323, New Lawyers
Chamber’s
Dated: -4- 2017 Supreme Court of
India
Ph:
2307006

Fakiro Khan (CRL.) SLP - 2019

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IN THE SUPREME COURT OF INDIA

[CRIMINAL APPELLATE JURISDICTION]

IN THE MATTER OF:

(FOR INDEX PLEASE SEE INSIDE)

Sl. Particulars of Page No. Remar

(i) (ii) (iii) (iv) (v)

Animat U/s 161

case no.06 dated

Khan U/s 161

case no.06 dated

case no.06 dated

copy of the call

witness Rafiq and

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. ……………….…. OF

S.No. DESCRIPTION COPIES COURT

3. Copy of the final Common 1 + 3

(S.R. SETIA ) Code No.

THE CASE PERTAINS TO (PLEASE TICK/CHECK THE

Section : U/s. 302 IPC and 5 (M) 06/18 of POCSO Act

Impugned Final Order/Decree: (Date) 15-07-2019

1. Nature of Matter: Criminal

(d) Sentence Awarded: Under Trial

(c) Date of Section 17 notification: N.A.

Date -8 -2019 (S. R. SETIA )

IN THE MATTER OF:

OFFICE REPORT ON LIMITATION

1. The Petition is /are within limitation.

2. The Petition is barred by time and there is delay of … …

days in filing the same against Order dated 15–7-2019

and petition for Condonation of …………days delay has

petition for Condonation of ……….. days delay in Refiling

has been filed.

New Delhi (Branch

Supreme Court of India

The aggrieved Petitioner, who is father of the deceased 13 years

against the impugned order dated 15.07.2019 passed in S.B.

Criminal Miscellaneous Bail Application No.7197/2019 passed

by the Hon’ble High Court of judicature for Rajasthan at Jodhpur

application of the Accused/Respondent no.1 filed under section

439 Cr.P.C. and subsequently directed to release the

Accused/Respondent no.1 on bail in connection with FIR

no.06/2019, U/s 302 IPC R/w section 5(m), 6, 18 of POCSO Act

2012, lodged at Police Station Sam, District Jaisalmer provided

he executes a personal bond in a sum of Rs.50,000/- with two

sound and solvent sureties of Rs.25,000/- each to the

satisfaction of learned trial court for his appearance before that

court on each and every date of hearing and whenever called

upon to do so till the completion of the trial.

It is pertinent to mention that the Hon’ble High Court has

been failed to put any condition upon the Accused/Respondent

releasing the Accused/Respondent no.1 on bail due to which the

Accused/Respondent no.1 dare to commit another offence

immediately after his release on bail via attempt to kidnap and

threatened the main material witness of the case namely Rafiq

the Accused/Respondent no.1 by Rafiq Khan.

It is respectfully submitted that the Hon’ble High Court

has been judiciary erred in not appreciating the reasoned order

dated 28.05.2019 passed by the Ld. Trial court while rejecting

the bail application of the Accused/Respondent no.1 and ordered

the release of the Accused/Respondent no.1 on bail vide