G. K. SHARMA, J. - (1.) THE petitioners have come to this Court for releasing them on bail u/s 438 Cr. P. C.
(2.) A report was lodged against the petitioners and an FIR No. 152/86 was registered at PS-Todaraisingh, u/ss. 147, 452, 323 & 380 IPC. After registering the case, the accused-petitioners were arrested on 24th Dec. , 38. They then moved a bail application u/s 437 Cr. P. C. before the Magistrate, which was accepted and they were ordered to be released on bail. Thereafter, investigation proceeded, and the police found that a case u/s 326 or 307 IPC was also prima facie made out against the petitioners. The petitioners apprehended that they would be re-arrested by the police for offence u/s 326 or 307 I. P. C. An application was moved u/s 438 Cr. P. C. before the Sessions Judge, Tonk, who dismissed the said application on 19th Jan. , 87. Mr. Narendra Jain, the learned counsel for the petitioners argued that FIR No. 152/86 was registered against the petitioners at PS- Todaraisingh and that in that FIR they have been released on bail. Initially the FIR was registered u/ss. 147, 452, 323 & 380 I. P. C. Offences u/s 452 & 380 IPC are non-bailable offences, so, they were arrested and later on, were released on bail. It seems that after the receipt of the X-ray report, the investigating officer found that a case u/s 326 or 307 IPC has been prima facie made out against the petitioners. The apprehension of the petitioners is that while adding an offence u/s 326 or 307 IPC, they would be re-arrcsted, and hence, they have come before this Court for anticipatory bail. This is a legal question to be judged. The controversy is that when a person has been arrested for a non-bailable offence and has thereafter been released on bail by the court u/s 437 Cr. P. C. and later on, the police found that an offence of another section which is also a non-bailable in nature, has been prime facie made out against that person whether in that circumstance, can that person be re-arrested. The simple question is that when an FIR was registered under some non-bailable offence, and the person has been relased on bail, and subsequently, some new non-bailable offence is added against him, can that person be re-arrested ? 4. The offence was added to the same FIR. Once the person has been arrested on account of the allegations in the FIR, simply by adding a new section of non-bailable offence, it does not change the position, nor does it permit the police to re-arrest him. In this case, previously also, a non-bai!able offence was alleged against the petitioners in FIR No. 152/86, and for that non-bailable offence, they have been released on bail by the Court. Simply adding a new section of non-bailable offence, does not change the position. The FIR sremaing the same. The allegations against the petitioners also remain the same Previously, the case was registered u/s 323 IPC, because, medical report was not clear, whether any case u/s 326 IPC was made out or not. Later on when the X-ray report was received by the police, they thought that a serious offence has been committed. So, instead of an offence u/s 323 IPC, the police thought that an offence u/s 326 or 307 IPC, has been committed by the petitioners. So simply according to further investigation, gravity of the offence has been pointed Out by the police. The petitioners who have been released on bail in the same FIR, cannot be re-arrested by the police simply alleging that a new offence u/s 326 or 307 IPC has been prima facie made out against them. These offences are also non-bailable offences for which the petitioners have been released on bail. Therefore, in such circumstances, when a new section is added to the allegations in the FIR, and when the persons have been released on bail, the allegations being the same of non-bailable offence, they cannot be re-arrested by adding a new section of non-bailable offence. Hence, this bail application deserves to be accepted. As observed, the petitioners who were arrested for some non-bailable offence and have been released on bail by the court, cannot be re-arrested for a new non-bailable offence after adding a new section to the same matter.
(3.) THE application for anticipatory bail is therefore, accepted. THE SHO/ Arresting Officer/investigating Officer, PS-Todaraisngh is directed that in the event of arrest of the petitioners, they be released on bail on their furnishing a personal bond in the sum of Rs. 2,000/- on the following conditions:- 1. That they shall make themselves available for interrogations by a police Officer as and when required; 2. that they shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuide him from disclosing such facts to the court or to any police officer; 3. that they shall not leave India without the previous permission of this Court. .;