Crl. Misc. No. M-5923 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-5923 of 2011(O&M) Date of Decision: 24.02.2011 Sonu @ Rinku @ Lambu .... Petitioner Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. Rahul Rampal, Advocate for the petitioner Mr. K.D. Sachdeva, Addl. A.G. Punjab 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) Learned counsel for the petitioner states that earlier an FIR was registered against petitioner and other co-accused for an offence punishable under Sections 382, 34 IPC; petitioner was enlarged on regular bail; however, during the investigation Section 397 IPC was also added against the petitioner and other co-accused. Learned counsel has further stated that an offence under Section 397 IPC is punishable with maximum imprisonment for 7 years and is not punishable with death or life imprisonment. Therefore, on furnishing bail bonds for the newly added offence, petitioner should be allowed to continue on bail and he is not supposed to seek fresh bail for the added section. Notice of motion. Crl. Misc. No. M-5923 of 2011(O&M) 2 On being asked, Mr. K.D.Sachdeva, Addl. AG, Punjab accepts notice on behalf of respondent – State. With the consent of both the counsel, present petition is being disposed of finally today itself. Perusal of the record reveal that earlier FIR No.58 dated 3.6.2010 at Police Station Division No. 8, Ludhiana was registered against the petitioner and other co-accused for an offence under Section 382, 34 IPC. Petitioner was enlarged on regular bail, however, subsequently, during the investigation Section 397 was also added against the petitioner. Offence under Section 382, 34 IPC is triable by the Magistrate, however, an offence under Section 397 IPC is triable by the Court of Sessions. Learned Addl. A.G. Punjab has vehemently argued that in view of the dictum of the Apex Court in the matter of Prahlad Singh Bhatti Vs. NCT, Delhi and another, (2001) 4 Supreme Court Cases 280, petitioner has to seek fresh bail for newly added Section 397 IPC which is triable by the Sessions while petitoenr was enlarged on bail for the offence under Section 382, 34 IPC triable by the Court of Magistrate. Hon'ble Apex Court in the matter of Prahlad Singh Bhatti(supra) has observed as under: - “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, Crl. Misc. No. M-5923 of 2011(O&M) 3 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. 9. In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. 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. Neither Section 437 (5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that "I do not agree with the submission made by the Ld. Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is Crl. Misc. No. M-5923 of 2011(O&M) 4 certainly not the spirit of law". 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. Instead of referring to the grounds which entitled the respondent- accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.” In the case of Prahlad Singh (supra) initially accused was released on bail for an offence under Sections 498-A,306 and 406 IPC, however, on account of death of the victim due to the injuries suffered by her, later on Section 302 IPC was added. Hon'ble Apex Court has ruled that if during the investigation offence punishable minimum with imprisonment of life or death is added then the accused has to seek fresh bail. In the opinion of this Court, Hon'ble Apex Court has not ruled that if offence not punishable with minimum life imprisonment or death penalty is added then also accused has to seek fresh bail. In the opinion of this Court once an accused was enlarged on bail for certain offence and if during the investigation new Section is added for which minimum punishment is not life imprisonment or death penalty then Magistrate will be within its jurisdiction to ask the petitioner to furnish fresh bonds for the newly added Section. However, it is clarified that if newly added section is punishable minimum with life imprisonment or death penalty then Crl. Misc. No. M-5923 of 2011(O&M) 5 Magistrate shall not be within its jurisdiction to ask the accused to furnish the fresh bail bonds for the newly added section unless case is covered under the proviso of Section 437 IPC. However, facts remain that since only 397 IPC is punishable with maximum imprisonment for 7 years and is not punishable with death or life imprisonment, therefore, Magistrate shall be well within its jurisdiction to ask the accused to furnish fresh bonds for the newly added Section. I find support from the judgment of learned Single Judge of Allahabad High Court in the case of Raj Kumar vs. State of U.P. Reported in 2005 Cri.L.J. 1378. Learned Single Judge of Allahabad High Court in paragraph No. 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 IPC, provided they furnish fresh bail bonds with sureties to the satisfaction of the Court Crl. Misc. No. M-5923 of 2011(O&M) 6 concerned.” Present petition is allowed. Petitioner shall furnish fresh bonds (personal and sureties) to the satisfaction of learned Magistrate for the newly added Section 397 IPC and on furnishing fresh bonds shall continue on the same bail. (ALOK SINGH) 24.02.2011 JUDGE reena