IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 2261 of 2014
ABHAY SINGH YADAV ..... Petitioner
Through: Mr. Manjit Singh Chauhan, Advocate.
versus
THE STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Mr. Rajat Katyal, APP.
Inspector Sube Singh and SI Vijay Pal, P.S.
Sagar Pur.
Mr. Shanti Prakash, Advocate for the
Complainant.
CORAM: JUSTICE S. MURALIDHAR
ORDER
10.11.2014
1. This is an application under Section 438 Cr PC seeking anticipatory bail in FIR No. 14 of 2014 registered at Police Station („PS‟) Sagar Pur under Sections 307/302/34 IPC.
2. This order should be read as a continuation of the previous order passed by the Court on 15th October 2014 which sets out the facts in detail.
3. Initially, the Petitioner was arrested from his house on 13th January 2014. He was released on bail by this Court by an order dated 21st February 2014. At that stage the case was still one under Section 307/34 IPC.
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4. The subsequent event was that as a result of the burn injuries suffered by the daughter-in-law of the Petitioner, she expired on 2nd July 2014 while undergoing treatment in the hospital. Thereafter, Section 302 IPC was added.
5. As noticed in the previous order dated 15th October 2014, the question that arose was whether the police can re-arrest the Petitioner as a result of Section 302 IPC having been added, without seeking cancellation of the regular bail granted by the Court by its order dated 21st February 2014.
6. Learned counsel for the Petitioner has placed reliance on a number of judgments of the High Courts to urge that once bail is granted it cannot be automatically set at naught merely because a non-bailable offence is subsequently added. He further contended that the prosecution has to first seek cancellation of the earlier bail order before seeking to arrest the Petitioner. He has referred to the decisions in Jagbir Singh v. State 2001 (2) RCR (Criminal) 289, Biju v. State of Kerala 2000 (2) KLT 495, Prafulla Kumar Nayak v. State of Orissa 1995 (1) CCR 184, Gheesya v. State of Rajasthan 1989 CriLR (Rajasthan) 84, Chandra Pal Singh Choudhary v. Vijit Singh 2009 Crl.LJ 3516, and Manjit Kaur v. State of Punjab 2014 (1) Crimes 504 (P&H).
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7. Mr. Rajat Katyal, learned APP for the State, in reply, pointed out that the above decisions had not referred to two decisions of the Supreme Court. The first was Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 in which the Supreme Court held that merely because the accused was initially granted anticipatory bail for a lesser offence, that would not entitle him to grant of a regular bail when subsequently he was found to be involved in a graver offence like murder under Section 302 IPC. In Hamida v. Rashid @ Rasheed (2008) 1 SCC 474, the Supreme Court held that where the accused had been granted regular bail for a bailable offence and later the offence was converted to one under Section 304 IPC, the High Court erred in continuing the bail earlier granted.
8. Learned counsel for the Petitioner states that both the aforesaid judgments of the Supreme Court are distinguishable on facts. He pointed out to the decision of the Andhra Pradesh High Court in Kantheti Jaggaiah v. Sub-Inspector of Police, Pattabhipuram Police Station, Guntur 2002 (Supp 2) ALD 85 and the decision of the Madras High Court in Dhivan v. State (2010) 3 MLJ (Crl) 35.
9. The above submissions have been considered. In Prahlad Singh Bhati v. NCT, Delhi (supra), the Supreme Court was dealing with a case which initially had been registered under Sections 306 and 498A Bail Application No. 2261 of 2014 Page 3 of 6 IPC and the accused has been granted anticipatory bail by the learned Additional Sessions Judge („ASJ‟). While doing so, the learned ASJ observed that if on the facts, a case under Section 302 IPC was made out against the accused, the State would be at liberty to arrest the accused. Subsequently, a charge sheet was filed for the offence under Section 302, 406 and 498A IPC and the accused was asked to appear before the learned Metropolitan Magistrate („MM‟). Since the accused failed to appear before the MM on that date, non-bailable warrants („NBW‟) were issued against him. The accused then moved the High Court under Section 482 Cr PC to quash the NBW. The High Court opined that no ground has been made out for cancellation of the bail granted to the accused. As a result, the accused remained on bail. The Supreme Court reversed the High Court and held that "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." It was further observed that "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."
10. The Court is unable to agree with the approach of the Andhra Pradesh High Court in Kantheti Jaggaiah (supra) in distinguishing the above decision on facts.
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11. Turning to the decision in Hamida v. Rashid @ Rasheed (supra) it is seen that initially a regular bail was granted in the bailable offences. Subsequently, the charge was converted into a more serious offence under Section 304 IPC. The accused did not apply for regular bail but filed a petition under Section 482 Cr PC praying that he should continue to remain on bail. The High Court granted that relief. The Supreme Court reversed the High Court holding that the inherent power under Section 482 Cr PC could not have been exercised by the High Court to continue the bail notwithstanding that the case has been converted into one under Section 304 IPC.
12. The Court is not prepared to adopt the approach of the Madras High Court in Dhivan v. State (supra) in holding that, notwithstanding the decision in Hamida, the earlier bail granted to the accused will not automatically stand cancelled even if a more serious offence is added subsequently.
13. Turning to the case in hand, the Court is of the view that in light of the subsequent developments where Section 302 IPC has been added on the death of the Petitioner‟s daughter-in-law and the medical opinion shows that the death was on account of ante mortem infected thermal burn injuries that covered about 30% of the total body surface Bail Application No. 2261 of 2014 Page 5 of 6 area, the earlier bail granted to the Petitioner by this Court by its order dated 21st February 2014 cannot be said to continue in respect of the graver offence under Section 302 IPC. The Court is inclined to follow the decisions of the Supreme Court in Prahlad Singh Bhati and Hamida (supra) to conclude that since the offence now added is a far graver one, the Petitioner is disentitled to continuation of the bail granted by the order dated 21st February 2014. Thus there is no impediment to the arrest of the Petitioner at this stage.
14. As far as the merits of the case is concerned, the Court is of the view that at this stage no ground has been made out for extending the interim protection granted to the Petitioner by this Court by the order dated 15th October 2014.
15. The application is dismissed. It is clarified that this order will not preclude the Petitioner applying for regular bail after his arrest.
16. Order be given dasti to learned counsel for the parties.
S. MURALIDHAR, J.
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