1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL WRIT PETITION NO.501 OF 2011 (Vishwanath s/o Namdeo Bawankule ..vs.. The State of Maharashtra, through PSO Lakhandur, District Bhandara) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri S.K.Kotwal, Advocate for the petitioner, Shri A.S. Fulzele, A.P.P. for the respondent/State. C ORAM : P.V. HARDAS AND S.B.DESHMUKH, JJ. DATED : 11-10-2011 This is a petition under Article 226 of the Constitution of India, by which the very strange prayer is made in this petition i.e. this Court should issue a writ directing the Sessions Judge, Bhandara to release the petitioner on bail as per the previous order of the Sessions Judge, Bhandara dated 06-3-2010 by setting aside order dated 02-9-2011, which came to be passed subsequently by the Sessions Judge, Bhandara. 2. The facts in brief as are necessary for the decision of the writ petition may briefly be stated thus :- It appears that the petitioner was arrested on 21-2-2010 in Crime No.27/2010 for an offence punishable under Section 307 of the Indian Penal Code. The petitioner had submitted an application under 2 Section 439 of the Code of Criminal Procedure before the Sessions Judge, Bhandara seeking his release on bail in the aforesaid crime. The Sessions Judge, Bhandara by order dated 06-3-2010 directed to release the petitioner on bail in Crime No.27/2010 under Section 307 of the Indian Penal Code. Since the case had not been committed to the Court of Session, the petitioner approached the concerned Magistrate seeking his release on bail. It appears that on account of certain difficulties, particularly relating to incorrect crime number being stated etc. the petitioner ultimately was not released though an order of bail came to be passed in his favour. Meanwhile, the injured succumbed to his injuries and the offence, which was initially registered under Section 307 of the Indian Penal Code, came to be altered to Section 302 of the Indian Penal Code. 3. Since the petitioner was not released on bail pursuant to the order dated 06-3-2010, the petitioner continued to remain in custody in respect of an offence now registered under Section 302 of the Indian Penal Code. The petitioner accordingly applied for his regular bail under Section 439 of the Code of Criminal Procedure before the Sessions Judge, Bhandara. The Sessions Judge, Bhandara rejected the aforesaid application filed by the petitioner, by order dated 08-12-2010. The petitioner being aggrieved by the rejection of the application by the Sessions Judge, Bhandara preferred an application under Section 439 of the Code of Criminal 3 Procedure before the learned Single Judge of this Court seeking his release on bail in the offence punishable under Section 302 of the Indian Penal Code. The learned Single Judge of this Court also rejected the application of the petitioner by order dated 10-6-2011. 4. The petitioner thereafter moved an application before the Sessions Judge, Bhandara seeking his release on bail on the basis of the earlier order of the Sessions Judge, Bhandara dated 06-3-2010. It may be useful to mention at this stage that bail had been granted to the petitioner in respect of an offence punishable under Section 307 of the Indian Penal Code, which subsequently came to be altered under Section 302 of the Indian Penal Code on account of demise of the injured. The Sessions Judge, Bhandara, by order dated 02-9-2011, rejected the application of the petitioner. The principal ground for rejection of the application of the petitioner was that the earlier order i.e. order dated 06-3-2010 had merged with the subsequent orders passed by this Court rejecting the application of the petitioner seeking his release on bail in respect of an offence punishable under Section 302 of the Indian Penal Code. The petitioner, by this petition has prayed for the relief, to which we have adverted above. 5. According to us, this petition is a frivolous petition. The earlier order i.e. seeking his release on bail for an offence punishable under Section 307 of the Indian Penal 4 Code obviously was rendered ineffective on account of the demise of the injured and alteration of the offence from Section 307 to 302 of the Indian Penal Code. As pointed by us above, the petitioner had never been released on bail in respect of an offence punishable under Section 307 of the Indian Penal Code and consequently, there was no question of the petitioner being rearrested without cancellation of the earlier bail granted to the petitioner. The order dated 06-3-2010 granting bail to the petitioner for an offence punishable under Section 307 of the Indian Penal Code was an ineffective order in the light of the addition of Section 302 of the Indian Penal Code in place of Section 307 of the Indian Penal Code. The petitioner had also applied for bail before the Sessions Judge as well as the High Court for his release on bail under Section 302 of the Indian Penal Code, but the aforesaid applications came to be rejected. The petitioner now cannot contend that he be released as he had been granted bail by order dated 06-3-2010 for an offence punishable under Section 307 of the Indian Penal Code as the offence no longer now exists in the light of the registration of the offence under Section 302 of the Indian Penal Code. 6. Learned Counsel for the petitioner has placed reliance upon the judgment of the Single Judge of the Karnataka High Court in Ataulla and another ..vs. State of Karnataka, 1998 Cri.L.J. 913. In this case, the accused therein had been arrested in respect of bailable 5 offence and had been released on bail. Subsequently, the charge was altered and non-bailable offence was included in the crime against the accused. The learned Single Judge of the Karnataka High Court held that the petitioner/accused therein could not be arrested in respect of non-bailable offence without cancelling the earlier bail granted by the same Court. Obviously, in the light of the facts narrated by us above, the ratio of this judgment is wholly inapplicable to this case. 7. We have already held that the application, which was moved by the petitioner before the Sessions Judge, Bhandara and which came to be rejected by order dated 02-9-2011, was wholly misconceived application. The learned Single Judge has held that the petitioner was not entitled to be released on bail for an offence punishable under Section 302 of the Indian Penal Code. This Court in the exercise of its writ jurisdiction cannot direct the Sessions Judge to release the petitioner in respect of an offence punishable under Section 307 of the Indian Penal Code, in the light of the fact that the aforesaid offence now no longer exists on account of alteration from Section 307 to 302 of the Indian Penal Code. This petition, therefore, being without merit is summarily dismissed with no order as to costs. JUDGE JUDGE pma