Vijaypal vs State of Madhya Pradesh

Hon. Mrs. Justice S.R. Waghmare

By this application filed u/s 438 of the Cr.P.C., applicant Vijaypal has moved the application for grant of anticipatory bail being implicated in Crime No.166/12 registered by P.S. Kalapipal, Distt. Shujalpur for offence under Sections 323, 354, 506, 450 & 376 of the IPC. By this application Counsel for the applicant has moved an application u/s 438 of the Cr.P.C. for grant of anticipatory bail since in the initial complaint registered before the P.S. Kalapipal, Distt. Shujalpur registered offences only under Sections 323, 354 and 506 of the IPC, which were all bailable offences and the applicant was granted bail. However, subsequently on 30.06.12 the complainant prosecutrix moved another written application stating that she had been raped and the case was registered u/s 376 of the IPC by P.S. Kalapipal, and it enhanced the offence under Sections 450 and 376 of the IPC by filing an additional FIR. Counsel placed reliance on judgment passed by this Court in the matter of Umrao v. State of M.P. [Cr. Misc. No. 1799 of 1985 (G) reported in M.P.W.N. 1986-I, page-22] whereby this Court under identical circumstances granted anticipatory bail to the applicant. The Counsel for the applicant also relied on Sayera Bi Vs. State of M.P. [2006 Cr.L.R. (M.P.262] Counsel contended that this Court had held that it was 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 into custody, unless there are some compelling circumstances to release. This Court has recently already considered the matter in detail in M.Cr.C. No.5911/2012 and I find that there is no impediment if the subsequent offence is also triable by the same Court i.e. Magistrate in case of smaller offences and the Session Court in the matter of grave offences as per the provisions of law. However, the difficulty arises when the graver offences; as in the present case, is triable by different Court i.e., whereas offence u/s 354 of the IPC is triable by Magistrate, offence u/s 376 is triable only by the Court of Session. In such a case the application is not entertainable u/s 439 of the Cr.P.C. But here the proper application has been moved u/s 438 of the Cr.P.C. by which it is sufficient, that there is only apprehension, in the mind of the accused person that he is likely to be apprehended.

Counsel for the respondent/State, per contra, has objected to the grant of anticipatory bail, stating that the applicant was not in custody and the same bail bonds cannot be utilised for offence u/s 307 of the IPC which was a graver offence. He prayed for dismissal of the application.

Considering the above submissions, I place reliance on full Bench judgment of this Court in the matter of Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, whereby the fine distinction has been drawn by the Apex Court regarding the term "in custody" and also in the matter of [ Ramsewak and Others Vs. State of M.P., whereby under similar circumstances, the Court had held that grant of anticipatory bail would not stand in way of committing the accused to the competent Court and in this light, I find that the application needs to be allowed. It is hereby allowed.

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

The applicant 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 applicant shall abide by all the conditions enumerated u/s 438(2) of the Cr.P.C.

C. c. as per rules.