IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 923 of 2009 Subhash and others. …..…..Applicants. Versus State of Uttarakhand and another. …….. ….Respondents. Hon’ble Alok Singh, J. Mr. Manish Arora, learned counsel for the applicants. Mr. Nandan Arya, learned AGA for the State of Uttarakhand. There is no need to serve notice upon respondent no. 2. Heard learned counsel for the parties. By way of present petition, petitioners / applicants are challenging the order dated 09.11.2009 passed by Judicial Magistrate, Roorkee refusing the request of the petitioners to accept fresh personal bonds and sureties for the newly added section 308 IPC in the chargesheet. Brief facts of the present case are that First Information Report was lodged under sections 325, 325, 504, 506, 323 IPC read with section 34 IPC. Petitioners vide order dated 20.01.2007 were enlarged on bail in case crime no. 198 of 2006 under sections 323, 325, 504, 506 IPC read with section 34 IPC. After investigation chargesheet 2 was filed against the petitioners adding section 308 IPC along with sections 323, 325, 504, 506 IPC read with section 34 IPC. Learned Magistrate vide order dated 17.05.2007 took cognizance on the chargesheet. Thereafter, order dated 17.05.2007 was challenged in revision no. 307 of 2007 on the ground that chargesheet cannot be submitted by the Court Moharir. Thereafter, mistake was corrected and cognizance was taken on 21.10.2007 which was put under challenge in criminal revision no. 8 of 2008. Revision no. 8 of 2008 came to be dismissed on 13.08.2009. After dismissal of the revision against cognizance order petitioners appeared before Trial Court and moved an application on 09.11.2009 requesting the court to accept fresh personal bonds and sureties since section 308 IPC has been added in the chargesheet. Trial Court vide order dated 09.11.2009 rejected the application of the petitioners. Feeling aggrieved petitioners has approached this Court. The sole question before this court is - As to whether accused is required to seek fresh bail when offence triable by Session Court is added in the chargesheet, although accused petitioner was initially released on bail for the offence triable by the Magistrate? As observed above First Information Report was lodged against the petitioners as case crime no. 198 of 2006 P.S. – Bhagwanpur under sections 323, 325, 504, 506 IPC read with section 34 IPC. Petitioners were enlarged on bail in case crime no. 198 of 2006 under sections 323, 325, 504, 506 IPC read with section 34 IPC vide order dated 20.01.2007 passed by Judicial Magistrate, Roorkee. 3 Learned counsel for the petitioners placed reliance upon the judgment passed by learned Single Judge of this court in the case of Jamil Vs. State of Uttaranchal reported in 2005 (3) UC 1698. He further placed reliance on the judgment of Allahabad High Court passed in the case of Raj Kumar Vs. State of U.P. 2005 (51) ACC 133. This Court in the matter of Jamil (supra) in para 7 has observed as under: “It is now well settled law that once the accused has been granted bail in a criminal case, he need not to file fresh bail application for grant of bail in another added section which though seems to be graver than the offence under which he was granted bail earlier.” The Allahabad High Court in the matter of Raj Kumar (supra) in paragraph 4 has observed as under: “4. Now, Section 437 (1) (i) restrains the Court other than High Court or Court of Session (i.e. the Magistrate) from granting bail only in those cases, where a reasonable ground appears for believing that a person is guilty of an offence punishable with death or imprisonment for life. In this view of the matter, there is no fetter on the Magistrate’s right to grant bail in this case and the decision of the Apex Court in Prahlad Singh Bhati vs. NCT, Delhi does not come in the way of this Court permitting the revisionists to continue on the earlier bail granted to them by the Magistrate. Accordingly, this revision is allowed to this extent and the revisionists are permitted to continue to remain on bail also under section 307 4 IPC, provided they furnish fresh bail bonds with sureties to the satisfaction of the Court concerned.” This court has not taken into consideration the judgment passed by Hon’ble Apex Court in the matter of Prahlad Singh Bhati Vs. NCT, Delhi reported in 2001 (4) SCC 280. Although Allahabad High Court has taken into consideration the judgment passed by Hon’ble Apex Court in the matter of Prahlad Singh Bhati (supra). Hon’ble Apex Court in paragraphs 6, 7 and 8 in the matter of Prahlad Singh Bhati (supra) has observed as under: “6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he 5 shall be deemed to be having no jurisdiction to enlarge the accused on bail. 7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction. 8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds 6 for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” I have carefully perused the judgment passed by Hon’ble Apex Court in the matter of Prahlad Singh Bhati (supra). In my opinion Hon’ble Apex Court in the matter of Prahlad Singh Bhati (supra) was not dealing with the question - Once the accused was released on regular bail for the offence triable by the Magistrate would he be required to seek fresh bail for the offence added in the chargesheet or would he be required to furnish only fresh personal bond and sureties for the offence added after the investigation. Section 437 of the Cr.P.C. reads as under: “437. When bail may be taken in case of non bailable offence:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but- (i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he 7 had been previously convicted on two or more occasions [a cognizable offence punishable with imprisonment for three years or more but less than seven years]: Provided that the Court may direct that a person referred to in clause (i) of clause or (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment of life, or imprisonment for seven years or more, be released on bail by the Court under this sub section without giving an opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to 8 commit, any such offence, is released on bail under sub-section (1), [the Court shall impose the conditions - (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence, and may also impose, in the interest of justice, such other conditions as to it considers necessary] (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons, for so doing. (5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 9 From perusal of section 437 of Cr.P.C. and judgment of Prahlad Singh Bhati (supra) it can safely be said that if offence is not punishable with death or life imprisonment, Magistrate can grant bail to the accused on sufficient grounds. However, if offence is punishable with death or life imprisonment, Magistrate has no jurisdiction to enlarge the accused on bail unless case is covered under the proviso of Section 437 of Code of Criminal of Procedure. In the opinion of this Court, once the Magistrate has enlarged the accused on bail for the offences triable by him then asking the accused petitioners to seek fresh bail for newly added offence would not be justified. In that event, learned Trial Court shall release the accused on furnishing fresh personal bond and sureties for the newly added offence in the chargesheet. However, if newly added offence is punishable with death or imprisonment of life then accused has to seek fresh bail. In the present matter initially accused were enlarged on bail for the offence punishable under sections 323, 325, 504, 506 IPC read with section 34 IPC. After investigation section 308 IPC was added in the chargesheet. Offence under section 308 is punishable of either description for the term which may be extended to 7 years or with fine or with both. Since the offence under section 308 is not punishable with death sentence or imprisonment for life, hence, Magistrate has power to enlarge the accused on bail while exercising powers under section 437 Cr.P.C. In view of the above accused / petitioners are not required to seek fresh 10 bail for an offence under section 308 IPC. Petitioners shall be released on furnishing fresh personal bond and sureties to the satisfaction of the Trial Court. Present petition is allowed. Trial Court is directed to release the petitioners / accused on furnishing personal bond and sureties to the satisfaction of the Trial Court. (Alok Singh, J.) 08.12.2009 SKS