ABA/74/2022
2022 Latest Caselaw 1279 UK

                   Office Notes, reports, orders
SL.                or proceedings or directions
          Date                                                     COURT'S OR JUDGES'S ORDERS
No                  and Registrar's order with
                           Signatures


      22.04.2022
                                                   ABA No. 74 of 2022
                                                   Hon'ble Sharad Kumar Sharma, J.

Mr. Gaurav Singh, Advocate, for the applicants.

Mrs. Manisha Rana Singh, AGA, for the State.

The applicants to the present Anticipatory Bail Application have sought their anticipatory bail, qua the offences punishable under Sections 147, 148, 149, 323, 452, 354 of the IPC, which were subsequently added by the learned Magistrate concerned, as a consequence of the submission of the charge sheet and taking of the cognizance in Criminal Case No. 895 of 2018, State Vs. Rajesh Sharma and others, which was emanating from the principle FIR, which was registered as Case No. 0598 of 2018, on 27th June 2018, at police station Laksar, district Haridwar.

When the principle FIR was registered against the applicants they were already released on bail qua the offences punishable under Section 323, 354A and 504 of the IPC, however, due to the subsequent addition of the offences by the trial Court, as detailed above, as would be apparent from the cognizance taken, as well as, from the charge sheet, the present applicants are apprehending, that in all probability, they may be arrested qua the offences, which were subsequently added by the learned Magistrate, while taking cognizance to the charge sheet.

When the matter was taken up Yesterday, the learned Government Advocate has argued the matter from the perspective, that in an eventuality, where a bail has been granted with regards to the principle offences levelled against the applicants by the learned trial Court, in an event, if any subsequent offences are added and consequent thereto a cognizance on the same has been taken by the concerned Magistrate, in that eventuality, in view of the principles laid down by the Hon'ble Apex Court, in a judgment rendered in Criminal Appeal No. 816-817 of 2019, Pradeep Ram Vs. State of Jharkhand and another, as decided by the Hon'ble Apex Court on 1st July 2019. The learned Assistant Government Advocate submits that in view of the parameters which had been laid down in para 29 of the said judgement, which is extracted hereunder, the anticipatory bail application, ought not to be considered by this Court and rather the applicants should be relegated back to the Magistrate concerned, in order to enable them to surrender and seek their regular bail. The para 29 of the aforesaid judgment lays down as under:-

29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.

But, the context and the prospective under which the arguments have been extended by the learned AGA, with regards to the parameters which had been laid down in para 29 of the aforesaid judgement of the Hon'ble Apex Court, this Court is of the opinion, that the adherence to the principles enunciated in para 29 of the said judgement, was only from the viewpoint of a cognizability for the non bailable offences, which could be taken into consideration for the purposes of considering or refusal of a bail. But, in the said paragraph, no such specific embargo has been created or laid down by the Hon'ble Apex Court, that it will be ousting the applicability of the provisions contained under Section 438 of the Code of Criminal Procedure, for considering the anticipatory bail in relation to the offences on which the subsequent cognizance, has been taken by the Magistrate concerned after submission of the charge sheet.

In fact, if the provisions contained under Section 438 itself, are taken into consideration, this Court is of the view, that the grant of an anticipatory bail is exclusively a prerogative and discretion of the Court, and the only parameters, which are required to be considered and precautioned by the Court is qua the conditions which are required to be satisfied, as given in the sub-clauses contained under Section 438 of the Code of Criminal Procedure.

As far as the other factual aspects of the present case addressed in the anticipatory bail application are concerned, for the purpose to meet the arguments as extended by the learned counsel for the applicants that the present applicants will be falling within the exception clauses of Section 438, because if the FIR itself is taken into consideration, in fact, it is an interse disputes, between the uncle, the cousin brothers and the present accused persons, who belong to the same family. In that eventuality, where it is an interse family feud, which is apparently reflected from the contents of the FIR, which was registered against the present applicants on 27th June 2018, this Court is of the view that the applicants' case would be falling under the exception clause provided under (iv) to Section 438 of the Code of Criminal Procedure.

In that eventuality, and for the reasons assigned above, since there is no specific legal embargo or a bar created by law or by any judicial precedents restraining the maintainability of an anticipatory bail application, in an event of addition of offences, on which the cognizance has been taken by the Magistrate concerned later on, the anticipatory bail application, as preferred by the applicants, would stand allowed.

No coercive steps would be taken against the applicants qua the offences, which have been subsequently added by the concerned Magistrate, subject to the condition that they effectively participate in the proceedings and furnish their personal bond and two securities each in the like amount to the satisfaction of the Magistrate concerned.

However, it is made clear, that whatsoever observation, which has been made by this Court while granting the anticipatory bail to the present applicants, is only tentative in nature, exclusively for the purposes of considering the bail applications. It will not prejudice the trial, which has to be decided independently.

Sharad Kumar Sharma, J.) 22.04.2022 Mahinder/