YASHWANT VARMA,J. - (1.) Heard learned counsel for the applicant, Sri Om Prakash, the learned A.G.A. for the State, Sri Sandeep Kumar Singh for the informant and perused the record.
(2.) The instant application has been moved seeking anticipatory bail in light of the apprehension of the arrest of the applicant in Case Crime No.499 of 2019, under Sections 147, 323, 307, 504, 506 IPC, police station Sector-58 NOIDA District Gautam Budh Nagar.
(3.) The instant application for grant of anticipatory bail has been preferred solely on account of addition of Section 307, 504 and 506 IPC during the course of investigation. Insofar as the first information report as it originally stood is concerned, it is fairly stated that the applicant has been granted regular bail by the concerned Court. In view of the above, it is evident that the apprehension of arrest is misplaced. The Court in this regard bears in mind the following principles as enunciated by the Supreme Court in Pradeep Ram v. State of Jharkhand [2019 SCC OnLine SC 825]:- "10. Learned counsel for the parties have also relied on several judgments of different High Courts in regard to the circumstance when new cognizable and nonbailable offences are added. We may briefly refer to few of the decisions of the High Courts in the above regard. Patna High Court in Sita Ram Singh and Anr. Vs. State of Bihar, 2002 (2) BLJR 859 had considered the case where case was initially instituted under Section 307 I.P.C. FIR was lodged on 24.08.2000 under Section 307 I.P.C. The accused was granted bail on 01.09.2000. Thereafter, due to death of the injured on 06.09.2000, Section 302 I.P.C. was added. Informant had applied for cancellation of the bail. The bail earlier granted was cancelled in view of subsequent development. In the above context, Patna High Court relying on judgment of this Court in Prahlad Singh Bhati Vs. NCT, Delhi, (2001) 4 SCC 280 held that on a serious change in the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach of the Court concerned would be to apply its mind afresh as to whether the accused is entitled for grant of bail, in the changed circumstances. 11. Rajasthan High Court in Sukhpal Vs. State of Rajasthan, 1988 (1) RLW 283 has also made following observations in paragraph No.4:- "4. I am, therefore, of the opinion that the legal position is beyond doubt that once an accused is ordered to be released on bail under any of the Section of Chapter XXXIII of the Cr.P.C. the police had no power to arrest him by merely adding another section which may be non-bailable. The police must seek an order from the Court for cancellation of bail granted to a person..............." 12. Another judgment of Madras High Court in Dhivan Vs. State, (2010) 2 MWN (Cr.) also took the same view. In paragraph No.11, following was observed:- "11. In view of the above discussions, I have no hesitation to hold that simply because a penal provision is added in the case in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to rearrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court..............." 13. There are few decisions of Allahabad High Court also where the issue has been addressed. One judgment of the High Court namely Bijendra and Ors. Vs. State of U.P., (2006) CriLJ 2253 has also been referred to and relied in the impugned judgment. In paragraph No.25, following observations have been made by Allahabad High Court:- "25. After hearing the learned Counsels for the both sides at a great length and after analyzing Section 437 Cr.P.C. it transpires that Section 437 relates with bail in cases of non-bailable offence by the magistrate. So far as the first contention which the learned Counsel for the applicants advanced, that because the bail has been granted in the same crime number and therefore by mere change of section accused cannot be sent to jail is concerned it is to be noted that case crime number is nowhere mentioned in the aforesaid section, which is the number of police for identification of the case and is a procedural number of the police station. Crime number has no relation with bail under Cr. P. C. In this view of the matter the contention of learned Counsel for the applicant cannot be accepted and is therefore rejected. Coming to the second contention of the learned Counsel for the applicant that there is no bar for this Court to direct the Magistrate to accept fresh bail bonds for the newly added offence triable by Court of Session's it is noted that this direction will amount to asking the Magistrate to do something de-hors the law. The contention is devoid of merit. Section 437 Cr.P.C. relates to an offence, therefore, on addition of a new offence, the accused is required to appear before the court and seek bail. His bail cannot be considered unless and until he surrenders and is in custody in that offence. Any accused who is not in custody in an offence cannot be granted bail. Custody is sine qua non for consideration of bail prayer. Consequently when the accused is guilty of an added offence and is not on bail, he cannot be allowed to furnish bond without being in custody in that offence. For getting bail in newly added offences the accused has to surrendered in that offence........" 14. In another case of Allahabad High Court in Bankey Lal Sharma Vs. State of U.P., (2008) CriLJ 3779 rejecting the submission that the applicant should not be required to obtain fresh bail on addition of new offences, following was observed in paragraph No.14:- "14. At this stage, learned Counsel for the applicant submits that the applicant should not be required to obtain fresh bail under the newly added section. This relief cannot be granted in view of the decision of the Apex Court in Hamida v. Rashid alias Rasheed and Ors. (LVIII)2007 ACC 577, wherein it has been mentioned that without surrender prayer for bail in the newly added Section cannot be considered." 15. Learned counsel for the appellant has also relied on judgment of High Court of Jammu and Kashmir in CRMC No.270/2018 - Fayaz Ahmad Khan Vs. State, decided on 03.10.2018, where Jammu and Kashmir High Court relying on judgment of this Court in Manoj Suresh Jadhav. (supra) took the view that simply because a penal provision is added in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to rearrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court. 16. We may also notice a pertinent observation made by this Court in Prahlad Singh Bhati (supra). In the above case, a case was registered under Sections 306 and 498-A I.P.C. Application for anticipatory bail was dismissed, however, while dismissing the application, the Additional Sessions Judge had observed that if on facts a case under Section 302 is made out against the accused, State shall be at liberty to arrest the accused. After investigation, charge sheet was filed under Sections 302, 406 and 498-A. The accused was directed to appear before the Magistrate since he did not appear, non-bailable warrants were issued. The accused had filed an application under Section 482 Cr.P.C. in the High Court. Subsequently, the accused appeared before the Magistrate, he was admitted on bail even in a case under Section 302 IPC. The revision petition was dismissed by the High Court against the order releasing the accused on bail. The complainant had approached this Court. In paragraph Nos. 4 and 9, following observations have been made by this Court:- "4. From the facts, as narrated in the appeal, it appears that even for an offence punishable under Section 302 IPC, the respondent-accused was never arrested and he manipulated the prevention of his arrest firstly, by obtaining an order in terms of Section 438 of the Code and subsequently by a regular bail under Section 437 of the Code from a Magistrate. 9. ..........With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.................." 17. This Court in Hamida Vs. Rashid alias RasheeD, (2008) 1 SCC 474 held that an accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences. It is, thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not enure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest. 18. Whether after addition of new non-bailable offence, police authority can straightaway arrest the accused, who is already granted bail by the Court, in reference to offences prior to addition of new offences or the police is to necessarily obtain an order from the Court either of cancellation of the bail or permission to arrest the accused in changed circumstances are questions where different views have been expressed by different High Courts. In the present case, the appellant was not arrested by the police after addition of offences under the Unlawful Activities (Prevention) Act, 1967, rather the police authorities had made an application before the Court for issue of production warrant since the accused was already in custody in jail in reference to another case. ......... 21. Both Sections 437(5) and 439(2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power under Sections 437(5) and 439(2). The principles and grounds for cancelling a bail are well settled, but in the present case, we are concerned only with one aspect of the matter, i.e., a case where after accused has been granted the bail, new and serious offences are added in the case. A person against whom serious offences have been added, who is already on bail can very well be directed to be arrested and committed to custody by the Court in exercise of power under Sections 437(5) and 439(2). Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course of the action, which can be adopted while exercising power under Sections 437(5) and 439(2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the Court can direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted. 22. One of the judgments, which needs to be noticed in the above reference is Hamida Vs. Rashid alias Rasheed (supra). In the above case, the accused was granted bail for offences under Sections 324, 352 and 506 IPC. The victim succumbed to his injuries in the night intervening 16.06.2005 and 17.06.2005. The offence thereafter was converted into Section 304 IPC. An application was filed in the High Court by the accused to permit them to remain on same bail even after conversion of the offence into one under Section 304 IPC, which was allowed by the High Court. The complainant filed an appeal by special leave in this Court against the judgment of the Allahabad High Court. This Court allowed the appeal and set aside the order of the High Court and directed the accused to be taken into custody with liberty to apply for bail for the offences for which he was charged before proper Court in accordance with law. This Court further held that accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. This Court laid down following in paragraph Nos. 10, 11 and 12:- "10. In the case in hand, the respondents-accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondents-accused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition under Section 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439 CrPC, though available to the respondents-accused, having not been availed of, the exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside. 11. Learned counsel for the appellant has submitted that charge under Section 302 IPC has been framed against the respondents-accused by the trial court and some subsequent orders were passed by the High Court by which the accused were ordered to remain on bail for the offence under Section 302 read with Section 34 IPC on furnishing fresh sureties and bail bonds only on the ground that they were on bail in the offence under Section 304 IPC. These orders also deserve to be set aside on the same ground." ;