Jagannath and Others vs State of Madhya Pradesh

S.R. Waghmare, J.—By this application filed u/s 438 of the Cr.P.C., applicants Jagannath, Radheshyam, Jitendra, Pradeep and Rahul have moved the application for grant of anticipatory bail u/s 438 of the Cr.P.C. being implicated in Crime No. 298/12 registered by P.S. Betma, Distt. Indore for offence under Sections 332, 294, 506/34, 324 & 307 of the IPC. Counsel for the applicants has vehemently urged the fact that it was a case of false implication. Moreover Counsel stated that the applicants were already released on bail in the same crime number registered by P.S. Betma for offence under Sections 323, 294 & 506 of the IPC and were released on bail as the offences were bailable. However, now the investigating agency has added offence u/s 307 of the IPC. Counsel submitted that a cross-case has already been registered against the complainant party by the same police station at the instance of accused applicant No. 1 in the present case. The injured Dilip was referred to X-ray at M.Y. Hospital and no bony injury was found on the skull. However later on a city scan was done at the private diagnostic center and fracture of the skull has been discovered and that is why the enhancement in the offence.

Counsel relied on Sayera Bi Vs. State of M.P. [2006 Cr.L.R. (M.P.) 262] for grant of anticipatory bail. Counsel submitted that this Court had already held that:

It is well settled that once accused is released on bail in a particular crime and in case of addition of major offence in the charge sheet, he is not required to be taken in custody and usually such person is required to be released on bail, unless there are some compelling circumstances to release him on bail in case of death of a injured person and under the heinous offence etc.

In the present case it appears that the allegations are the same right from beginning but, lateron offence u/s 326 has been added on the basis of medical report to the effect that injured Shabnam sustained fracture of nosal bone caused by knife.

Counsel also submitted that for grant of anticipatory bail, it is sufficient that there is apprehension that a person has reason to believe that he may be apprehended. Moreover provisions of clause-b of Section 209 under which the Magistrate has to commit the accused, do not envisage the cancellation of bail but on the contrary it envisages that while so committing the Magistrate shall remand the accused subject to the "provisions of the Code relating to bail". In this view of the matter it cannot be said with any stretch of imagination that Section 438 does not empower High Court and the Court of Session to grant bail as it would amount to interference with the discretion given to the committing Magistrate under cl. (b) of S. 209. He relied on [ Ramsewak and Others Vs. State of M.P., .

He submitted further that the Apex Court had also reiterated the same ratio in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, to state that bail can be granted u/s 439 only when the applicant is in custody, the case of Section 438 is to be distinguished in this regard and custody in the context of Section 439 does not necessarily mean that the offender should actually be in custody when the police arrest him. He can be said to be in the custody when he is produced before a Magistrate and he is in the physical presence of the Court with submission to the jurisdiction and orders of the Court. In the said case the accused applied for bail before the Magistrate who refused the bail but granted stay to move the Sessions Court. The Apex Court held that such an order of stay could not have been made under the provisions of law but in the Sessions Court the accused surrendered himself to in the custody and the Sessions Court granted bail in favour of the applicant/accused. The same was upheld by the High Court and in these circumstances the Apex Court stated that it was not necessary to upset the order of the Magistrate. Counsel prayed for grant of bail especially relying on Sayera Bi (supra).

Counsel for the objector, per contra, has opposed the submissions and placing reliance on 3 judgments of the Allahabad High Court stated that if the newly added offence was not triable by Magistrate, the High Court cannot under its inherent powers direct the trial Court to accept fresh bonds under the newly added sections. He relied on Suresh and Others Vs. The State of U.P. and Sri Charan Singh, , Raj Kumar & others v. State of U.P. [2008 Cri.L.J. (NOC) 64 (All) & Bankey Lal Sharma Vs. State of U.P. and Dev Raj Singh, . He vehemently urged the fact that the applicants cannot be allowed to remain on the same bail bonds for offence u/s 307 of the IPC. He placed reliance in the case decided by the Apex Court in the matter of Prahlad Singh Bhati Vs. N.C.T. Delhi and Another, whereby the Apex Court considered the case when the accused had been granted anticipatory bail for offence under Sections 306 and 498-A of the IPC, the offence was altered to one u/s 302 of the IPC and the accused appeared before the Metropolitan Magistrate who granted him bail even in the case of offence u/s 302 of the IPC. The release on bail by the Magistrate was held to be illegal by the Apex Court, stating that the basic principles governing the grant of bail had been ignored by the Magistrate, since the offence was punishable with the death or imprisonment for life and was triable exclusively by Court of Sessions. The High Court also committed an illegality in not cancelling the bail and did not consider the question of law that the Magistrate did not have the jurisdiction to grant bail unless the matter was covered by the provisos attached to Section 437 of the Code. The Apex Court set aside the orders impugned, however, granted liberty to the accused to apply to regular bail before the trial Court. Thus Counsel prayed for dismissal of the application.

Counsel for the respondent/State has fully supported the arguments of the Counsel for the objector. He prayed for dismissal of the application.

On considering the above submissions, I find that the basic question that requires to be decided is whether in the present case is anticipatory bail can be granted to the applicant on the basis of Sayera Bi (supra). I find as follows:

Primarily; because, the offence in the present case has been enhanced from Ss.294, 323, 506/34 of the IPC to one u/s 307 of the IPC and whereas offences u/s 323 and the others are triable by Magistrate, offence u/s 307 of the IPC can be tried only by the Court of Sessions or the High Court. And in this light the application u/s 439 of the Cr.P.C. would not be maintainable before a Magistrate and the applicant cannot be allowed to remain on the same bail bonds. However in the matter of Niranjan Singh (supra) a fine distinction has been drawn between Section 439 which requires the applicant to be in custody; while distinguishing the fact that application u/s 438 only requires an apprehension in the mind of person to be arrested and does not preclude the applicant from applying for anticipatory bail. Undoubtedly the Magistrate has to consider that the accused can be granted bail only by the High Court or a Court of Session u/s 439 of the Cr.P.C. However Section 438 would not interfere with the distinction given to the committing Magistrate under Clause (b) of Section 209 and the accused cannot be precluded from taking benefit conferred on him by Section 438 of the Cr.P.C. and in this light, I find that the application needs to be allowed.

Consequently the application is allowed and it is directed that in the event of arrest, the applicants shall be released on bail for the period of 30 days (thirty days) upon their furnishing personal bond to the tune of Rs. 25,000/ (Rupees Twenty five thousand only) each with one surety in the like amount to the satisfaction of the Arresting Officer for their further appearance as and when directed.

The applicants shall apply for regular bail within the aforesaid period of 30 days which shall be dealt with forthwith by the trial Court in accordance with law. It is also directed that the applicants shall abide by all the conditions enumerated u/s 438(2) of the Cr.P.C.

C.c. as per rules.