Mohini Kapoor, J. - (1.) IN an incident which occurred on 30th June, 1988, four persons including one Mst. Manni were injured. The incident occurred when there was a dispute between rival parties about the flow of rain water. A case under Sections 452, 147 and 323, IPC was registered against the accused -petitioners. They were arrested and the trial court namely, Additional Judicial Magistrate, Tonk accepted their bail application and they were released on bail.
(2.) ON 11 -7 -1988, Mst. Manni died and the cause of her death was given by the Doctor as brain haemorrhage due to the head injury. The offence under Section 302, IPC was added in this case. On 12 -7 -88, the prosecution applied before the Magistrate that the bail granted to the accused petitioners be cancelled and they should be directed to be arrested. As the offence under Section 302, IPC was added and only a Chief Judicial Magistrate could deal with the matter, the relevant papers along with the application of the prosecution were placed before the Chief Judicial Magistrate, Tonk. He decided this application on 27 -7 -1988 and after taking into consideration, the facts and circumstances, ordered that the bail granted to the accused petitioners was for the offences under Sections 452, 147 and 323, IPC and this bail order could not be said to be operative in respect of the offence under Section 302, IPC. He clarified that for an offence under Section 302, IPC the Police was competent to arrest the accused without any order from the Magistrate. In other words, he ordered that the bail granted for the offences under Sections 452, 323 and 147, IPC was ineffective for an offence under Section 302 IPC.
(3.) AS soon as the prosecution moved the application for cancellation of bail, the petitioners applied before the learned Sessions Judge, Tonk for grant of anticipatory bail. This application was dismissed on 20th July, 1988. It was contended before the learned Sessions Judge, that when the accused persons are released on bail in a case registered on a particular FIR then they could not be re -arrested if another offence was added in the same FIR. Referring to Section 437(5) Cr.PC it was observed by the Sessions Judge that the Magistrate or the court which granted the bail could order the re -arrest of the accused if a further offence was added in a particular case. The decision of this Court in, 1987 RCC 347 was cited before the learned Sessions Judge but he tried to distinguish the same by saying that in that case the police wanted to add an offence under Sections 326 and 307, IPC but in the present case, Section 302, IPC had been added on account of the death of Mst. Manni. Hence the same principle could not be applied.;