Decided on September 15,1985

Kishanlal Pareek Appellant
Prahlad Agarwalla And Ors. Respondents


Manisana, J. - (1.)DOOM Dooma Police Station registered a case being Doom Dooma P.S. Case No. 26 of 1985 under Section 147/325, IPC against the Respondents and one Shri Rajendra Raj in connection with an occurrence which took place on 19.2.1985. The Respondents and Sri Rajendra Rai surrendered on 23.2.85 before the Court of the Sub -Divisional Judicial Magistrate, Tinsukia. As the offences were bailable, the learned Magistrate released them on bail on 23.2.85 under Section 436 Code of Criminal Procedure. During the investigation, the injured Annaram Pareek died in St. Luk's Hospital. Therefore, the Investigating Officer made a request to the learned Magistrate that an offence under Section 302, IPC be allowed to be added in the case and also for allowing them to arrest the Respondent in connection with the case. On 4.3.1985 the learned Sub -Divisional Judicial Magistrate passed an order allowing the prayer of the Investigating Officer. The relevant portion of the Order runs as follows:
Let Section 302 of the Indian Penal Code be added along with other Sections of Law. As Section 302 or the Indian Penal Code is a non -bailable offence, hence the prayer of 1/0 is allowed. Permission b granted to rearrest the accused persons as prayed.

(2.)ON 6.3.85, the Respondents and Rajendra Rai filed Cril. Misc. Case No. 66 of 1985 in the Court of Session; Dibrugara under Section 438, Code of Criminal Procedure for granting pre -arrest bail. Records show that on 6.3.85, the present Petitioner, Krishnalal Pareek also filed an objection against the granting of the pre -arrest bail. The objection of the present Petitioner was registered as Criminal Misc. Case No. 68 of 1985 treating the objection as one for cancellation of the pre -arrest bail. On 6.3.85, the learned Sessions Judge passed an order under Section 438 directing the O.C., Doom Dooma P.S. to allow the accused to go on bail of Rs. 6003/ -each with one local surety of each, to his own satisfaction, in the event of their arrest, in connection with Doom Dooma P.S. Case No. 26/85. The learned Sessions Judge also passed an order on 24.4.85 in Criminal Mile Case No. 63 of 1985 that the petition for cancellation of hall stood rejected. Being aggrieved by the said order, dated 6.3.85 and 24.4.83 the Petitioner, Kriahaalal Pareek has filed the revision petition in this Court.
Mr. J.P. Bhattacharjee, learned Counsel for the Petitioner has submitted that the petition for grant of pre -arrest bail was not maintainable, and that in view of the decision of the Supreme Court in Pokar Ram v. State of Rajasthan : AIR 1985 SC 969, too order of the learned Sessions Judge granting bail cannot be allowed to stand. Mr. S. Birraiwal, learned Counsel for the Respondent has submitted that in view of the order passed by the learned Magistrate to arrest the accused persons, they bad no other alternative but to approach the Sessions Court for the pre -arrest bail and that the decision in Pokar Rant (Supra) cannot be applied in the present case.

(3.)THE question which arises for consideration is whether the order of the. Sessions Judge granting the pre -arrest bail can be allowed to stand. The learned Sessions Judge granted the pre -arrest bail on the grounds (a) that the accused persons who were already granted the bail on 23.2.85 bad to face rearrest under order dated 4.3.85 without cancelling of their earlier bail: (b) that no notice was given to the accused to show cause as to why the bail bonds should not be cancelled; (c) that the learned Magistrate straightway gave the direction to the police to arrest the accused under the same case; (d) that the status of the Petitioner would not be changed even if the offence was converted into one under Section 302, IPC from that of Section 325, IPC; (c) that there was no report against the accused for violation or misuse or abuse of the direction of the Court.

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