Inder Pal Singh and Others vs State of U.P.

Palok Basu, J.—The applicants Inder Pal Singh and seven others were accused in a first information report giving rise to case crime No. 27 of 1988, P.S. Chandi Nagar, district Meerut. Indrapal Singh was arrested on 24-5-88 and on his applying for bail before the magistrate he was released on bail. Balkar surrendered in court on 31-5-88 and was granted bail by the magistrate the same day. Applicants Kanwar Singh, Tek Chand, Gajai Singh, Yashpal, Harbir and Jogendera Singh surrendered before the Magistrate on 23-5-88 and were granted bail the same day. These facts are not disputed. It has been argued that initially the case was not registered u/s 307 IPC.

It has been averred in paragraph 9 of the counter affidavit that a charge sheet has now been filed by the Police after examining the witnesses u/s 161 Code of Criminal Procdeure for an added offence punishable u/s 307 IPC non-bailable warrants were issued against the applicants after the magistrate had taken cognizance of the matter. In paragraph 11 of that affidavit it has been stated that the magistrate had withdrawn the non bailable warrants on the objections filed on behalf of the applicants and then directed issuance of summonses. It is stated that the police now wants to arrest the applicants u/s 307 IPC. Hence this application u/s 482 Code of Criminal Procdeure.

It does not appear that after the applicants were granted bail by the magistrate they in any way, interfered with the prosecution witnesses or abused or misused the bail granted to them. However on facts of the present case Sri P.S. Adhikari, learned AGA appearing on behalf of the State has contended that it was always open to the Investigating Officer to file a charge sheet under some different sections of the Indian Penal Code also if he was of the view that the materials disclosed commission of that offence. This factual and legal position cannot be challenged. The right of the Investigating Officer to challan the accused through the charge sheet against those offences which, according to him, are made out from the statements recorded by the Investigating Officer, is available under'' the law to the Investigating Agency.

The argument of Sri Sharma on the other hand is that grant of bail in such cases where the magistrate has exercised jurisdiction in view of the earlier allegations of the prosecution, should not be called in question simply on the view of the Investigating Officer. In other words, while it is argued that the Investigating Officer has a right to add such sections as are made out according to him during investigation, the bail granted to the accused should not be interfered with. The maximum that can be done in such type of cases, according to the learned Counsel for the applicants, is, that fresh bail bonds should be called from1 the accused. I do not see any reason why the accused should be asked to be taken into custody all over again even though there is no allegation of abuse or misuse against them. True it is, that fresh bonds have to be filed, but the fact remains that unless there is a charge of abuse or misuse the accused should not be straightway taken into custody unless an opportunity to file fresh bonds is extended to them.

In view of the discussions made above, it is hereby directed that, in case the applicants surrender before the court and apply for bail u/s 307 IPC the magistrate will grant time to the applicants to make an application before the Sessions Judge who will, on an application being made before him, decide the same in accordance with law keeping in view the observations made above. It is expected that the Sessions Judge will decide the bail application on the day it is moved before him, unless compelling circumstances prevent him.

A copy of this order shall be delivered to the learned Counsel for the applicants on payment of usual charges within 24 hours.

With the above observations the application is dismissed.