aba-334-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.334 OF 2011 Zahiruddin Abubakar Ansari & Ors. ... Applicants V/s. The State of Maharashtra, Thru’ J.J. Marg Police Station & Anr. ... Respondents Mr. S.V. Marwadi for the Applicants. Mrs. G.P. Mulekar, APP, for Respondent No.1. Mr. U.P. Warunjikar i/b. Mr. F.A. Ansari for Respondent No.2. CORAM:- A.M. THIPSAY, J. DATED :- 6 TH JUNE, 2011. P.C. : 1. The Applicants were arrested in C.R. No.118 of 2008 of Sir J.J. Marg Police Station, which was registered in respect of offences punishable under Sections 323, 324, 504, 506 IPC read with Section 34 of the IPC. The Applicants were released on bail by the learned Metropolitan Magistrate, 15th Court at Mazgaon, Mumbai. Later on, the investigating agency claimed that the offence disclosed was one punishable under Section 326 of the IPC and sought cancellation of the bail granted on that ground. The said application for cancellation of bail, however, was rejected. Thereafter, the aba-334-11.sxw 2 Dixit First Informant filed a complaint before the Metropolitan Magistrate, 15th Court, Mazgaon with respect to the same incident, alleging commission of an offence punishable under Section 307 of the IPC. In the meantime, the Police had filed a Charge Sheet on the basis of the investigation that had been carried out in the said C.R. Charge was framed against the Applicants on 27th January, 2010 in the said case instituted upon the Police Report. In the complaint case filed by the First Informant, process was issued against the Applicants with respect to an offence punishable under Section 307 of the IPC. The Applicants, therefore, apprehend that they would now be arrested with reference to the said charge i.e. of an offence punishable under Section 307 of the IPC and, therefore, have approached this Court for anticipatory bail. 2. I have heard Mr. Warunjikar, the learned Advocate for the First Informant/Complainant, Mr. Marwadi, the learned Advocate for the Applicants, and Mrs. Mulekar, the learned APP for Respondent No.1. 3. In my opinion, the investigating agency cannot apprehend the Applicants with respect to the allegation of an offence punishable under Section 307 of the IPC, which is based on the same incident regarding which previously an accusation of offences punishable under Section 324/326 of the IPC was aba-334-11.sxw 3 Dixit levelled, without getting the bail granted to the Applicants cancelled. When a person is arrested on the allegation of having committed a particular offence and released on bail; and when, later on, it turns out to be a graver offence or more serious offence, the investigating agency would not be entitled to re-arrest such person without getting the bail granted to him earlier, cancelled. Undoubtedly, that the offence is revealed to be a more serious one than was thought to be at the time of release of the accused on bail, may be a good ground for cancellation of the bail granted earlier; but here the application for cancellation of bail moved by the investigating agency on that ground, has already been rejected. Even then, the learned APP is unable to state that the State would not be arresting the Applicants without getting the bail secured by them cancelled. 4. In my opinion, in such a situation, the Applicants should be protected by grant of anticipatory bail. This is particularly so because the offence has taken place in the year 2008. Even the complaint case is kept for committal to the Court of Sessions. 5. Mr. Warunjikar, the learned Advocate for the First Informant/Complainant, submits that the First Informant/Complainant is likely to make an application for cancellation of bail granted to the Applicants. Needless to say, that the aba-334-11.sxw 4 Dixit First Informant/Complainant would be entitled to do so and in the event of such an application being made, the Court would be bound to consider the same on merits. Such intention of the First Informant/Complainant, however, is not sufficient to refuse to grant anticipatory bail to the Applicants in the circumstances. 6. The application for anticipatory bail is allowed. 7. In the event of the arrest of the Applicants in Case No.1500203/SW/2008, they be released on bail in the sum of Rs.25,000/- each, with one surety each, in like amount, or two sureties in the sum of Rs.12,500/-. 8. Mr. Warunjikar, the learned Advocate for the First Informant/Complainant, at this stage, submits that the operation and effect of this order be stayed for eight weeks. As I have already held that the insistence of the State to arrest the Applicants without getting the bail granted to them cancelled is unjustified, there seems to be no question of staying the operation and/or effect of this order. The oral prayer in that regard, made by Mr. Warunjikar, is rejected. [A.M. THIPSAY, J.]