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2009 Supreme(UK) 604
2010 (1) N.C.C. 621
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Alok Singh
Criminal Misc. Application No. 923 of 2009
SUBHASH & ORS. – Applicants
Versus
STATE OF UTTARAKHAND & ANR. – Respondents
Decided on : 08.12.2009
For the Applicants :Mr. Manish Arora, Advocate
For the Respondent: Mr. Nandan Arya, A.G.A.
Headnote:Criminal Procedure Code, 1973, Sec. 437 — Grant of Bail — Powers of Magistrate — Exercise of — In cases, where the Magistrate has enlarged the accused on bail for the offences triable by him seeking fresh bail for newly added offence not justified, if newly added offence is not punishable with death or imprisonment of life — The Magistrate can grant bail to the accused on sufficient grounds.
(Paras 15, 16)
n.M izfd;k lafgrk] 1973] /kkjk 437 & tekur eatwj djus esa n.Mkf/kdkjh ds vf/kdkjksa dk iz;ksx & tgk¡ ij n.Mkf/kdkjh }kjk vfHk;qDr dks vius }kjk gh fopkj.kh; vijk/kksa esa tekur ij eqDr fd;k x;k gks rks uohu vijk/kksa ds tksM+s tkus ij fQj ls tekur dk ekaxk tkuk U;k;ksfpr ugha gS & ;fn uohu tksM+h xbZ vijkfèkd /kkjkvksa esa vijk/k dh ltk e`R;qn.M vFkok vkthou dkjkokl ugha gS rks Hkh mfpr ugha gS & n.Mkf/kdkjh i;kZIr vk/kkj ij vfHk;qDr dks tekur Lohdr dj ldrk gSA
¼izLrj 15] 16½
Mr. Manish Arora, learned counsel for the appellants.
2. Mr. Nandan Arya, learned AGA for the State of Uttarakhand.
3. There is no need to serve notice upon respondent no.2.
4. Heard learned counsel for the parties.
5. By way of present petition, petitioners/applicants are challenging the order dated 09.11.2009 passed by Judicial Magistrate, Roorkee refusing the request of the petitioners to accept fresh personal bonds and sureties for the newly added section 308 IPC in the chargesheet.
6. Brief facts of the present case are that First Information Report was lodged under Sections 325, 325, 504, 506, 323 IPC read with section 34 IPC. Petitioners vide order dated 20.01.2007 were enlarged on bail in case crime no. 198 of 2006 under sections 323, 325, 504, 506 IPC read with section 34 IPC. After investigation charge-sheet was filed against the petitioners adding section 308 IPC along with section 323, 325, 504, 506 IPC read with section 34 IPC. After investigation charge-sheet was filed against the petitioners adding section 308 IPC along with sections 323, 325, 504, 506 IPC read with section 34 IPC. Learned Magistrate vide order dated 17.05.2007 took cognizance on the charge-sheet. Thereafter, order dated 17.05.2007 was challenged in revision no. 307 of 2007 was challenged in revision no. 307 of 2007 on the ground that charge-sheet cannot be submitted by the Court Moharir. Thereafter, mistake was corrected and cognizance was taken on 21.10.2007 which was put under challenge in criminal revision no. 8 of 2008. Revision no. 8 of 2008 came to be dismissed on 13.08.2009.
7. After dismissal of the revision against cognizance order petitioners appeared before Trial Court and moved an application on 09.11.2009 requesting the court to accept fresh personal bonds and sureties since section 308 IPC has been added in the charge-sheet. Trial Court vide order dated 09.11.2009 rejected the application of the petitioners. Feeling aggrieved petitioners has approached this Court.
8. The sole question before this Court is – As to whether accused is required to seek fresh bail when offence triable by Session Court is added in the charge-sheet, although accused petitioner was initially released on bail for the offence triable by the Magistrate?
9. As observed above First Information Report was lodged against the petitioners as case crime no. 198 of 2006 P.S. – Bhagwanpur under sections 323, 325, 504, 506 IPC read with section 34 IPC. Petitioners were enlarged on bail in case crime no. 198 of 2006 under sections 323, 325, 504, 506 IPC read with section 34 IPC vide order dated 20.01.2007 passed by Judicial Magistrate, Roorkee.
10. Learned counsel for the petitioners placed reliance upon the judgment passed by learned Single Judge of this court in the case of Jamil Vs. State of Uttaranchal reported in 2005 (3) UC 1698. He further placed reliance on the judgment of Allahabad High Court passed in the case of Raj Kumar Vs. State of U.P. 2005 (51) ACC 133. This Court in the matter of Jamil (supra) in para 7 has observed as under:
“It is now well settled law that once the accused has been granted bail in a criminal case, he need not to file fresh bail application for grant of bail in another added section which though seems to be graver than the offence under which he was granted bail earlier.”
11. The Allahabad High Court in the matter of Raj Kumar (supra) in paragraph 4 has observed as under:
“4. Now, Section 437(1)(i) restrains the Court other than High Court or Court of Session (i.e. the Magistrate) from granting bail only in those cases, where a reasonable ground appears for believing that a person is guilty of an offence punishable with death or imprisonment for life. In this view of the matter, there is no fetter on the Magistrate’s right to grant bail in this case and the decision of the Apex Court in Prahlad Singh Bhati vs. NCT, Delhi does not come in the way of this Court permitting the revisionists to continue on the earlier bail granted
