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2011 DIGILAW 572 (PNJ)

Rakesh v. State of Haryana

2011-02-14

ALOK SINGH

body2011
JUDGMENT ALOK SINGH, J (ORAL) 1. Very interesting and important question of law arises for consideration before this Court – as to whether an accused, who has been enlarged on regular bail by the Magistrate, shall have to seek fresh bail for the newly added offence during the investigation triable by Magistrate? 2. The facts of the present case inter alia are that present petitioner/accused was arrested for an offence under Sections 324/506/34 of the Indian Penal Code, Safidon, FIR case No.350 dated 18.11.2010. Accused was enlarged on regular bail by the Sub Divisional Judicial Magistrate, Safidon, vide order dated 20.11.2010 for an offence under Sections 324/506/34 IPC P.S. Safidon. During the investigation, Sections 326 and 323 were also added against the accused. Accused thereafter had applied for anticipatory bail for newly added Sections i.e. 326 and 323 IPC, however, his bail application was dismissed by learned Additional Sessions Judge vide order dated 12.1.2011, observing therein as under: - “It is case of prosecution that on 17.11.2008 at 6.30 PM, an altercation had taken place between Parveen Kumar and Mahender with accused Rakesh, which ultimately led to a fighting, in which petitioner gave gandasi blow to Wazir. On his statement, initially a case was registered under Sections 324 and 506 IPC. Later on after receiving opinion of doctor, this case was converted into an offence punishable under Section 326 IPC. It is true that initially, accused persons were produced in the court for offence under Sections 324 and 506 IPC but as per doctor's opinion it was converted into Section 326 IPC. Grievious injury has been attributed to the present accused persons. His case, therefore, cannot be equated with co-accused, who has not caused grievous hurt. Thus, no ground is made out for anticipatory bail. Authorities, cited are not applicable here in this case. Hence, the application filed by the petitioner is rejected. Bail application file be consigned to the record room.” 3. I have heard the learned counsel for the parties and have carefully perused the relevant law and record of the present case. 4. Hon'ble Apex Court in the matter of Prahlad Singh Bhatti Vs. NCT, Delhi and another, (2001) 4 Supreme Court Cases 280 has observed as under: - “7. Bail application file be consigned to the record room.” 3. I have heard the learned counsel for the parties and have carefully perused the relevant law and record of the present case. 4. Hon'ble Apex Court in the matter of Prahlad Singh Bhatti Vs. NCT, Delhi and another, (2001) 4 Supreme Court Cases 280 has observed as under: - “7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction. 9. In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437 (5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that "I do not agree with the submission made by the Ld.Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law". With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.” 5. In the case of Prahlad Singh (supra) initially accused was released on bail for an offence under Sections 498-A,306 and 406 IPC, however, on account of death of the victim due to the injuries suffered by her later on Section 302 IPC was also added. Hon'ble Apex Court in view of the peculiar facts and circumstances of the case has held that the accused becomes dis-entitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime triable exclusively by Court of Session punishable with sentence of death or imprisonment for life.. 6. In the present case, as observed herein above, initially FIR was lodged for an offence under Sections 324/506/34 IPC. Petitioner was enlarged on regular bail vide order dated 20.11.2010. During the investigation offences under Sections 326/323 IPC are added and both of them are triable by the Magistrate, therefore, in the opinion of this Court, accused is not supposed to seek fresh bail for the offences added by the investigating agency. Accused shall be asked to furnish fresh bail bond and personal bond for the added Sections. 7. This Court vide order dated 20.1.2011 while issuing notice on the bail application has granted interim relief to the petitioner to release him on bail on furnishing personal bond and one surety bond to the satisfaction of the Magistrate for offences added later on. Learned Magistrate in compliance of order dated 20.1.2011 has enlarged the petitioner on bail for added Sections also, hence present petition is allowed making order dated 20.1.2011 absolute. Petition allowed.