Mohit And Others vs State Of Haryana

CRM-M-37344 of 2020(O&M) Date of decision:01.12.2020

Mohit and others ... Petitioner(s)

versus

State of Haryana ... Respondent (s)

CRM-M-37598 of 2020(O&M)

Ram Singh and others .... Petitioners

Versus

State of Haryana

Coram: Hon'ble Mr. Justice Jasgurpreet Singh Puri

Present: Mr. Ramnish Puri, Advocate for the petitioners.

Mr. Munish Sharma, AAG, Haryana.

Through Video Conference

Jasgurpreet Singh Puri, J.(Oral)

Both the cases are taken up together for decision as the petitioners in

both the cases are accused in the same FIR No.220 dated 12.05.2020 registered

under Sections 147, 149, 323, 188, (325, 341, 506, 427 and 307 added later on)

IPC at Police Station Khol, District Rewari and this Court vide order dated

16.11.2020 in CRM-M-37598 of 2020 had directed that it be heard alongwith

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CRM-M-37344 of 2020. The petitioners in CRM-M-37344 of 2020 are on regular

bail which was granted by the learned Trial Court whereas the petitioners in CRM-

M-37598 of 2020 were earlier granted interim anticipatory bail which was

thereafter, dismissed by the learned Additional Sessions Judge, Rewari.

CRM-M-37344 of 2020

Present petition has been filed under Section 438 Cr.P.C seeking

anticipatory bail in FIR No.220 dated 12.05.2020 registered under Sections 147,

149, 323, 188, (325, 341, 506, 427 and 307 added later on) IPC at Police Station

Khol, District Rewari.

Learned counsel for the petitioners has submitted that in the present

case an FIR was lodged against the petitioner under Sections 325, 341, 427, 506

IPC on 12.05.2020 and it was a case of cross version. All the petitioners were

arrested and were released on bail by the learned Magistrate on 15.05.2020.

Thereafter, during the investigation process, an offence under Section 325 IPC was

added on 21.05.2020 and thereafter, on the receipt of the medical opinion report

which indicated injury on the head of one Baljeet which was declared to be

dangerous to life, an offence under Section 307 IPC was added on 08.07.2020.

Learned counsel for the petitioners has submitted that the petitioners are already on

bail and now since Section 307 IPC has been added, they have filed present

petition for grant of anticipatory bail.

Learned counsel has further submitted that till the time the bail of the

petitioners is not cancelled, they cannot be re-arrested. He placed reliance upon

the judgment of the Hon'ble Supreme Court in Pradeep Ram versus State of

Jharkhand and another; 2019(3) R.C.R.(Criminal) 538 to contend that once an

accused is on bail then he cannot be arrested on the basis of addition of another

section unless the earlier bail granted to the accused is canceled. He has further

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submitted that in view of the aforesaid legal position the petitioners are entitled to

grant of anticipatory bail.

On the other hand, learned State counsel has submitted by referring to

an affidavit filed by Deputy Superintendent of Police, Headquarters, District

Rewari that the present FIR was registered under Sections 147, 149, 323, 188 IPC

and subsequently upon investigation Sections 341, 506, 427 IPC were added and

thereafter, petitioners were arrested and produced before the Court of learned Area

Magistrate on 15.05.2020 and were released on bail. Thereafter, during

investigation offence punishable under Section 325 IPC was added on 21.05.2020

and on 08.7.2020 consequent upon the receipt of medical opinion vide which the

injury on the head of Baljeet was declared as dangerous for life, offence punishable

under Section 307 IPC was added and accordingly, an application was moved

before the learned Area Magistrate seeking permission to re-arrest the petitioners

and other accused in the present case.

Learned State counsel has submitted that the present petition filed by

the petitioners is totally misconceived. He also relied upon the judgment of the

Hon'ble Supreme Court rendered in Pradeep Ram's case(supra) and has referred to

para 29 of the aforesaid judgment which is reproduced as under:-

"29. In view of the foregoing discussions, we arrive at following

conclusions in respect of a circumstance where after grant of bail to an

accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly

added cognizable and non-bailable offences. In event of refusal of bail,

the accused can certainly be arrested.

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(ii) The investigating agency can seek order from the court

under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and

his custody.

(iii) The Court, in exercise of power under Section 437(5) or

439(2) of Cr.P.C., can direct for taking into custody the accused who

has already been granted bail after cancellation of his bail. The Court

in exercise of power under Section 437(5) as well as Section 439(2) can

direct the person who has already been granted bail to be arrested and

commit him to custody on addition of graver and non-cognizable

offences which may not be necessary always with order of cancelling of

earlier bail.

(iv) In a case where an accused has already been granted bail,

the investigating authority on addition of an offence or offences may

not proceed to arrest the accused, but for arresting the accused on

such addition of offence or offences it need to obtain an order to arrest

the accused from the Court which had granted the bail.

Learned State counsel has submitted that as per the law laid down by the

Hon'ble Supreme Court, it has been held that where after the grant of bail to an

accused, further cognizable and non-bailable offences are added, then the accused

can surrender and apply for bail for newly added non-bailable offences and

cognizable offences and in the event of refusal of bail the accused can certainly be

arrested and investigating agency can also seek an order from the court under

Section 437(5) or 439(2) Cr.P.C for arrest of the accused and his custody and in the

case where an accused is already on bail, the investigating authority on addition of

an offence or offences may not proceed to arrest the accused but for arresting the

accused on such addition of offence or offences, it need to obtain an order to arrest

the accused from the Court which had granted the bail. Learned State counsel has

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further submitted that State has already adopted the aforesaid procedure in

accordance with the law laid down by the Hon'ble Supreme Court. While again

referring to an affidavit which has been filed by the Deputy Superintendent of

Police, Headquarters, District Rewari wherein in para No.5 it has been specifically

stated that an application was moved before the learned Area Magistrate for

seeking permission to re-arrest the petitioners and the other accused. He has

submitted that once an application has been filed for seeking permission from the

Court for re-arresting the petitioners and other co-accused there was no occasion

for the petitioners to have filed the present petition for seeking anticipatory bail.

He has further submitted on instructions that due procedure will be followed in

accordance with law laid down by the Hon'ble Supreme Court. He has also

submitted that even otherwise also there is no averment in the present petition with

regard to any apprehension even remotely suggested by the petitioner that they are

apprehending any arrest without following procedure. He has therefore, prayed for

dismissal of the present petition.

I have heard the learned counsel for the parties and perused the

available record.

The law with regard to the permissibility to re-arrest the accused who

is on bail on the basis of addition of cognizable offence is no longer res integra.

In Pradeep Ram's case(supra), the Hon'ble Supreme Court has laid down the law

in this regard. In the affidavit which has been filed by the State, it has been

categorically stated in para 5 that the State has moved an application before the

learned Area Magistrate seeking permission to re-arrest the petitioner and the other

accused, and therefore, apparently the State has followed the procedure in

accordance with the law laid down by the Hon'ble Supreme Court. The pleadings

as well as argument raised by the learned State counsel does not suggest an iota of

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apprehension in the minds of the petitioners that would be arrested by the police

without following the procedure.

Hon'ble Supreme Court dealt with sub-section (1) of Section

438 Cr.P.C--which came up for interpretation before it in the case of Gurbaksh

Singh Sibbia and others vs. State of Punjab (1980) 2 SCC 565 in which it has been

held that the 'reason to believe' should not be misrepresented as 'reason of fear'. The principles which have been laid down by the Hon'ble Supreme Court in

Gurbaksh Singh Sibbia's case (supra) state that there is no doubt that an application

for anticipatory bail can be entertained and is perfectly maintainable even prior to

the Stage of filing of the FIR but at least the condition sine qua non which is a

condition precedent as contained under Section 438(1) Cr.P.C has to be satisfied.

The relevant part of aforestated judgment is reproduced as under:-

"Section 438(1) of the Code lays down a condition which

has to be satisfied before anticipatory bail can be granted. The

applicant must show that he has "reason to believe" that he may

be arrested for a non-bailable offence. The use of the

expression "reason to believe" shows that the belief that the

applicant may be so arrested must be founded on reasonable

grounds. Mere 'fear' is not 'belief', for which reason it is not

enough for the applicant to show that he has some sort of a

vague apprehension that some one is going to make an

accusation against him, in pursuance of which he may be

arrested. The grounds on which the belief of the applicant is

based that he may be arrested for a non- bailable offence, must

be capable of being examined by the court objectively, because

it is then alone that the court can determine whether the

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applicant has reason to believe that he may be so

arrested. Section 438(1), therefore, cannot be invoked on the

basis of vague and general allegations, as if to arm oneself in

perpetuity against a possible arrest. Otherwise, the number of

applications for anticipatory bail will be as large as, at any

rate, the adult populace. Anticipatory bail is a device to secure

the individual's liberty; it is neither a passport to the

commission of crimes nor a shield against any and all kinds of

accusations, likely or unlikely."

It has been held by the Hon'ble Supreme Court while interpreting

Section 438 Cr.P.C that when any person has reason to believe that he may be

arrested on accusation of having committed a non-bailable offence, he may apply

for anticipatory bail. A perusal of the entire petition filed by the petitioners would

show that the petitioners have not expressed any apprehension at anywhere with

regard to the same. Apart from this, once the State itself has taken a stand in the

form of an affidavit that they have themselves moved an application before the

learned Area Magistrate for seeking permission to re-arrest the petitioners then the

same is certainly in accordance with the law laid down by the Hon'ble Supreme

Court in Pradeep Ram's case(supra). Therefore, the present petition being

misconceived is hereby dismissed.

CRM-M-37598 of 2020

Present petition has been filed under Section 438 Cr.P.C seeking

anticipatory bail in FIR No.220, dated 12.05.2020 registered under Sections 147,

149, 323, 188(325, 341, 506, 427 and 307 added later on) IPC at Police Station

Khol, District Rewari.

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Learned counsel for the petitioners has submitted that in the present

case the petitioners have been falsely implicated and earlier the petitioners were

granted interim anticipatory bail by the learned Additional and Sessions Judge,

Rewari on 01.07.2020 and later on 08.07.2020 on the basis of the opinion of the

doctor that the injury No.1 on the person of Baljeet Singh was dangerous to life,

Section 307 IPC was added and therefore, vide orders dated 09.07.2020, the

learned Additional Sessions Judge, Rewari vacated the interim anticipatory bail

and dismissed the main application. Learned counsel for the petitioners has further

submitted that in the present case, no role was attributed to the petitioners and there

was no specific injury attributed to the petitioners and furthermore, it was a case of

cross-version and initially, the FIR was registered under Sections 147, 149, 323,

325, 188, 341, 506, 427 IPC and the petitioners have been granted interim

anticipatory bail on 01.07.2020. Thereafter, medical opinion was received with

regard to the injury No.1 on the person of Baljeet Singh and then on adding of

Section 307 IPC, the anticipatory bail was dismissed on 09.07.2020 without any

justifiable reason. He has submitted that it was a case of cross-version and that the

petitioners were not at fault and therefore, has prayed for the grant of anticipatory

bail to the petitioners. He has also relied upon the judgment of the Hon'ble

Supreme Court in Pradeep Ram's case(supra) by submitting that once bail has been

granted to the petitioners then on the mere addition of an offence under Section

307 IPC the petitioners cannot be arrested.

Per contra, learned State counsel has submitted that it is a case where

direct allegations have been attributed to the petitioners who have been named in

the FIR alongwith other accused and there are total 28 accused in the present FIR.

He has submitted that as per the allegations, a group of these people had attacked

in ambush and one of the accused namely, Bhaskar had given injury on the head of

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Baljeet Singh with an axe and thereafter, all the accused had attacked with lathi

and dandas. He has further submitted that it has been specifically mentioned in the

FIR that all the accused had attacked with lathis and dandas and the complainant

on hearing the screaming and to rescue the injured but all the accused surrounded

the complainant from all sides and started beating with wooden sticks and injured

him. Therefore, Baljeet Singh became unconscious on the road and fell down and

various other allegations have been made in the FIR. He has further submitted that

during the investigation an offence under Section 325 IPC was added on

21.05.2020 and thereafter, on 08.07.2020 consequent upon the receipt of medical

opinion wherein it was stated that the injury on the head of Baljeet Singh was

declared to be dangerous to life, offence punishable under Section 307 IPC was

added. He has further submitted that although there is a cross version of the

occurrence also and regarding which an FIR No.222, dated 12.05.2020 has also

been registered against the complainant party for commission of offence

punishable under Section 147, 149, 188, 323 and 506 IPC, however, he has

submitted that mere fact that it was a case of cross-version does not entitle the

petitioner for grant of anticipatory bail particularly in view of the fact that on the

basis of medical opinion report the injury on the head of Baljeet Singh has been

declared to be dangerous to life. Learned State counsel has further submitted that

it was a case where group of people had attacked aforesaid Baljeet Singh which

caused head injury and therefore, the mere fact that particular attack was made

with an axe by one Bhaskar cannot become a ground for anticipatory bail to the

other accused who participated in the offence

Referring to the contents of the FIR, learned State counsel has

submitted that a group of people including the petitioners had attacked together

and it has been stated in the FIR that all the accused attacked with lathis and

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dandas and therefore, custodial investigation is very essential in the present case

especially for the recovery of the weapons and regarding the involvement of other

persons who participated in the offence.

Learned State counsel has further submitted that the aforesaid

judgment in Pradeep Ram's case (supra) would not apply in the present case in

view of the fact that the petitioners were not on regular bail but were only on

interim anticipatory bail which was granted on 01.07.2020 and when offence under

Section 307 IPC was added on 08.07.2020 then on the very next date

i.e.,09.07.2020 the anticipatory bail was dismissed.

I have heard the learned counsel for the parties and perused the

available record.

In the present case, petitioners were granted interim anticipatory bail

by the Additional Sessions Judge, Rewari on 01.07.2020 and thereafter, on

09.07.2020 the anticipatory bail was dismissed. Bare perusal of the FIR would

show that all the petitioners in the present case has been named in the FIR

alongwith 28 total accused and the allegations are that all the accused had attacked

the injured. The mere fact that one of the co-accused namely, Bhaskar had given

injury on Baljeet's head with an axe would not entitle the petitioners for grant of

anticipatory bail solely on this ground. Once there is an alleged gang attack, the

petitioners cannot claim the concession of anticipatory bail only on the ground that

out of the entire gang the role attributed to them was not pertaining to injury on the

head of the injured which was ultimately declared to be dangerous to life. Reliance

upon Pradeep Ram's case(supra) by the learned counsel for the petitioners is also

misconceived in view of the fact that in the present case the petitioners were only

on interim bail granted by interim anticipatory bail which has been ultimately

dismissed on 09.07.2020.

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Therefore, considering the totality of circumstances in the present

case, I do not deem it fit and appropriate to grant concession of anticipatory bail to

the petitioners, consequently, the petition is hereby dismissed.

However, anything observed hereinabove shall not be treated as an

expression of opinion on merits of the cases and is meant only for the purpose of

decision of present petitions.

1st December, 2020 [JASGURPREET SINGH PURI] Shivani Kaushik JUDGE Whether speaking/reasoned Yes/No Whether Reportable Yes/No

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