Abhay Singh Yadav vs The State (Govt Of Nct Of Delhi)

THE STATE (GOVT OF NCT OF DELHI) ..... Respondent Through: Mr. Rajat Katyal, APP. Inspector Sube Singh and SI Vijay Pal, P.S. Sagar Pur. Mr. Shanti Prakash, Advocate for the Complainant.

CORAM: JUSTICE S. MURALIDHAR

ORDER

10.11.2014

1. This is an application under Section 438 Cr PC seeking anticipatory

bail in FIR No. 14 of 2014 registered at Police Station („PS‟) Sagar

Pur under Sections 307/302/34 IPC.

2. This order should be read as a continuation of the previous order

passed by the Court on 15th October 2014 which sets out the facts in

detail.

3. Initially, the Petitioner was arrested from his house on 13th January

2014. He was released on bail by this Court by an order dated 21st

February 2014. At that stage the case was still one under Section

307/34 IPC.

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4. The subsequent event was that as a result of the burn injuries

suffered by the daughter-in-law of the Petitioner, she expired on 2nd

July 2014 while undergoing treatment in the hospital. Thereafter,

Section 302 IPC was added.

5. As noticed in the previous order dated 15th October 2014, the

question that arose was whether the police can re-arrest the Petitioner

as a result of Section 302 IPC having been added, without seeking

cancellation of the regular bail granted by the Court by its order dated

21st February 2014.

6. Learned counsel for the Petitioner has placed reliance on a number

of judgments of the High Courts to urge that once bail is granted it

cannot be automatically set at naught merely because a non-bailable

offence is subsequently added. He further contended that the

prosecution has to first seek cancellation of the earlier bail order

before seeking to arrest the Petitioner. He has referred to the decisions

in Jagbir Singh v. State 2001 (2) RCR (Criminal) 289, Biju v. State

of Kerala 2000 (2) KLT 495, Prafulla Kumar Nayak v. State of

Orissa 1995 (1) CCR 184, Gheesya v. State of Rajasthan 1989 CriLR

(Rajasthan) 84, Chandra Pal Singh Choudhary v. Vijit Singh 2009

Crl.LJ 3516, and Manjit Kaur v. State of Punjab 2014 (1) Crimes

504 (P&H).

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7. Mr. Rajat Katyal, learned APP for the State, in reply, pointed out

that the above decisions had not referred to two decisions of the

Supreme Court. The first was Prahlad Singh Bhati v. NCT, Delhi

(2001) 4 SCC 280 in which the Supreme Court held that merely

because the accused was initially granted anticipatory bail for a lesser

offence, that would not entitle him to grant of a regular bail when

subsequently he was found to be involved in a graver offence like

murder under Section 302 IPC. In Hamida v. Rashid @ Rasheed

(2008) 1 SCC 474, the Supreme Court held that where the accused

had been granted regular bail for a bailable offence and later the

offence was converted to one under Section 304 IPC, the High Court

erred in continuing the bail earlier granted.

8. Learned counsel for the Petitioner states that both the aforesaid

judgments of the Supreme Court are distinguishable on facts. He

pointed out to the decision of the Andhra Pradesh High Court in

Kantheti Jaggaiah v. Sub-Inspector of Police, Pattabhipuram Police

Station, Guntur 2002 (Supp 2) ALD 85 and the decision of the

Madras High Court in Dhivan v. State (2010) 3 MLJ (Crl) 35.

9. The above submissions have been considered. In Prahlad Singh

Bhati v. NCT, Delhi (supra), the Supreme Court was dealing with a

case which initially had been registered under Sections 306 and 498A Bail Application No. 2261 of 2014 Page 3 of 6 IPC and the accused has been granted anticipatory bail by the learned

Additional Sessions Judge („ASJ‟). While doing so, the learned ASJ

observed that if on the facts, a case under Section 302 IPC was made

out against the accused, the State would be at liberty to arrest the

accused. Subsequently, a charge sheet was filed for the offence under

Section 302, 406 and 498A IPC and the accused was asked to appear

before the learned Metropolitan Magistrate („MM‟). Since the accused

failed to appear before the MM on that date, non-bailable warrants

(„NBW‟) were issued against him. The accused then moved the High

Court under Section 482 Cr PC to quash the NBW. The High Court

opined that no ground has been made out for cancellation of the bail

granted to the accused. As a result, the accused remained on bail. The

Supreme Court reversed the High Court and held that "the mere initial

grant of anticipatory bail for lesser offence, did not entitle the

Respondent to insist for regular bail even if he was subsequently

found to be involved in the case of murder." It was further observed

that "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."

10. The Court is unable to agree with the approach of the Andhra

Pradesh High Court in Kantheti Jaggaiah (supra) in distinguishing

the above decision on facts.

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11. Turning to the decision in Hamida v. Rashid @ Rasheed (supra) it

is seen that initially a regular bail was granted in the bailable offences.

Subsequently, the charge was converted into a more serious offence

under Section 304 IPC. The accused did not apply for regular bail but

filed a petition under Section 482 Cr PC praying that he should

continue to remain on bail. The High Court granted that relief. The

Supreme Court reversed the High Court holding that the inherent

power under Section 482 Cr PC could not have been exercised by the

High Court to continue the bail notwithstanding that the case has been

converted into one under Section 304 IPC.

12. The Court is not prepared to adopt the approach of the Madras

High Court in Dhivan v. State (supra) in holding that, notwithstanding

the decision in Hamida, the earlier bail granted to the accused will not

automatically stand cancelled even if a more serious offence is added

subsequently.

13. Turning to the case in hand, the Court is of the view that in light of

the subsequent developments where Section 302 IPC has been added

on the death of the Petitioner‟s daughter-in-law and the medical

opinion shows that the death was on account of ante mortem infected

thermal burn injuries that covered about 30% of the total body surface

Bail Application No. 2261 of 2014 Page 5 of 6 area, the earlier bail granted to the Petitioner by this Court by its order

dated 21st February 2014 cannot be said to continue in respect of the

graver offence under Section 302 IPC. The Court is inclined to follow

the decisions of the Supreme Court in Prahlad Singh Bhati and

Hamida (supra) to conclude that since the offence now added is a far

graver one, the Petitioner is disentitled to continuation of the bail

granted by the order dated 21st February 2014. Thus there is no

impediment to the arrest of the Petitioner at this stage.

14. As far as the merits of the case is concerned, the Court is of the

view that at this stage no ground has been made out for extending the

interim protection granted to the Petitioner by this Court by the order

dated 15th October 2014.

15. The application is dismissed. It is clarified that this order will not

preclude the Petitioner applying for regular bail after his arrest.

16. Order be given dasti to learned counsel for the parties.

S. MURALIDHAR, J.

NOVEMBER 10, 2014 Rk

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