Judgment

ARIJIT PASAYAT, J.- Leave granted.

2. The informant calls in question legality of the order passed by a learned Single Judge of the Allahabad High Court granting bail to Respondent 2 (hereinafter referred to as "the accused").

3. Background facts sans unnecessary details are as follows:

On 5-2-2000 the complainant lodged the first information report. It was stated therein that when he and his son were attending a marriage party, the respondent-accused started firing shots from his gun. When he was asked not to do so, he did not stop and continued the tiring. The appellants son Saurabh received injuries due to the shots fired by the accused and he died due to the injuries. Initially, the police registered a case alleging commission of offences punishable under Sections 304-A and 338 of the Penal Code, 1860 (in short "IPC"). After investigation charge-sheet was filed under Sections 304 and 338 IPC. Cognizance was taken and process was issued. The accused filed an application for being released on bail. By the impugned order bail has been granted.

4. According to the appellant, the accused was absconding for about 2 years. His prayer for bail was initially rejected. Non-bailable warrant and process under Sections 82 and 83 of the Code of Criminal Procedure, 1973 (in short "the Code") were issued. Subsequently he was arrested. It was submitted for the accused that he was already on bail for offences punishable under Sections 304-A and 338 IPC. On a reading of the FIR and other documents offence under Section 304-A could appear against the accused but "surreptitiously" the same has been converted into offence under Section 304 IPC. With the following observations the High Court granted bail by the impugned order:

"It is said that even if allegations made in the FIR and other papers are accepted to be true on its face value, offence under Sections 304-A and 338 IPC would appear against the accused-applicant in Case Crime No. 2072 of 2002 State v. Dev Kumar, PS Sadar Bazar, District Saharanpur. But surreptitiously it was converted into the offence under Section 304 IPC. It was said that the applicant was already on bail for the offences under Sections 304-A and 338 IPC. Looking to the facts and circumstances of the case, the learned Magistrate is directed also to accept fresh bail bonds for the added offence under Section 304 IPC in Case No. 2702 of 2002.

The application is disposed of accordingly."

5. The complainant has filed this appeal questioning the correctness of the order passed. According to him, the High Court should not have accepted the plea of the accused that the police surreptitiously changed the nature of the offence. It is clearly contrary to the facts. In fact, on completion of investigation it has been noted that the applicable offence is Section 304 IPC and not 304-A. There was no surreptitious act involved and, therefore, grant of bail is (sic not) proper. The High Court has not even indicated any reason for grant of bail. It is pointed out that taking advantage of the fact that the accused is on bail, there is an effort to prolong the trial and hardly any b progress has been made though nearly 5 years have elapsed.

6. In response, learned counsel for Respondent 2 the accused submitted that after considering the relevant factors bail has been granted.

7. We find that the High Court has not indicated any reason for grant of bail. As the facts go to show, the charge-sheet was filed alleging the commission of offence under Section 304 IPC. Merely because at some earlier point of time the investigation proceeded on the line as if the offence punishable under Section 304-A is committed yet there is no embargo on the police filing charge-sheet indicating the appropriate offence. At this juncture it would be appropriate to take note of a decision of this Court in Omar Usman Chamadia v. Abdul1. In para 10, it was observed as follows: [See (Cri) pp. 159-60]

"10. However, before concluding, we must advert to anothe