S.B. Shukre, J.

1. Heard finally by consent. Admit.

2. It has been submitted on behalf of the applicant-complainant in Crime No. 151/2013 initially registered for the offences punishable under Sections 147, 148, 341, 324, 325,294, 506, 452 read with Section 149 of the Indian Penal Code against the non-applicant Nos. 2 to 11 and later on also under Section 326, read with Section 149 of the Indian Penal Code that the learned Magistrate Digras could not have exercised suo motu powers to release the non-applicant Nos. 2 to 11 or the accused persons on bail for subsequently added offence punishable under Section 326 of the Indian Penal Code, without these accused persons asking for their release on bail for the said Sections. He submits, relying upon the ratio of the case of Prahlad Singh Bhati vs. N.C.T. Delhi and another, reported in AIR 2001 SC 1444 : [2001 ALL MR (Cri.) 739 (S.C.)], which had been followed in the case of Uttamkumar s/o. Chandrakant Wagh and another vs. State of Maharashtra, reported in 2013 (1) Mh.L.J. (Cri.) 695 : [2012 ALL MR (Cri.) 3468] that when newly added Section prescribes maximum punishment of life imprisonment or death penalty, the only course available to the Magistrate is to direct the accused persons to be taken into custody and commit them to Magisterial Custody Remand, unless their case is covered under the proviso to Section 437 of the Criminal Procedure Code.

3. Learned A.P.P. for the respondent No. 1/State submits that it is a fact that the learned Magistrate had exercised suo moto powers in this case, but such exercise of the power not having resulted in failure of justice, cannot be seen to be providing a sufficient ground for making interference with the impugned order.

4. It is true that some time after, the prosecution added section 326 offence in crime No. 151/2013 that was registered at Police Station Digras against the non-applicant Nos. 2 to 11 and when this offence was added against them, the non-applicant Nos. 2 to 11 were already enlarged on bail. After addition of the offence, the propriety required that the non-applicant Nos. 2 to 11 were given notice of the addition of the said offence against them and heard on the need of their being committed to Magisterial Custody. It appears that the non-applicant Nos. 2 to 11 were not given any such notice and the notice that was given to them was of the application filed by the complainant praying for sending of non-applicant Nos. 2 to 11 to jail in view of the registration of the offence punishable under Section 326of the Indian Penal Code by Digras Police, which offence was punishable with maximum sentence of life imprisonment. The non-applicant Nos. 2 to 11 simply sought time to file their say which they did not file, even on 13th August, 2013. On 13th August, 2013, in the absence of any say of the non-applicant Nos. 2 to 11, the learned Magistrate rejected the application dated 7.8.2013 of the applicant and directed the non-applicant Nos. 2 to 11 to furnish fresh bail bonds.

5. In fact, the application filed on 13th August, 2013 by the non-applicant Nos. 2 to 11 was not for grant of bail to them under Section 326 of the Indian Penal Code. It was for grant of time to furnish fresh bail bonds for securing their release on bail under Section 326 of the Indian Penal Code. In other words, the non-applicant Nos. 2 to 11 took it for granted that the learned Magistrate had already granted bail to them under Section 326, which was not the fact established on record. The bail was yet to be granted, and there was also no application moved by the accused persons praying for their release on bail. Even, the learned Magistrate thought that there was no need on his part to pass a specific order granting bail to the non-applicant Nos. 2 to 11 under Section 326 of the Indian Penal Code and what was done by the learned Magistrate was only issuing a direction on 13th August, 2013 to the non-applicant Nos. 2 to 11 to furnish fresh bail. This order pa