Hamida vs Rashid @ Rasheed & Ors

3. The appellant Hamida lodged an FIR at P.S. Kotwali, Muzaffarnagar at 00.10 hours on 13.6.2005 alleging that when her husband Balla was participating in a Panchayat of the Biradari (community) the four accused respondents lodged an attack upon him with licensed and illegal arms, exhorting that they would kill him. Naushad accused assaulted him with a 'chhuri' (long knife) due to which Balla received serious injuries. The other accused fired from their respective weapons and thereafter ran away from the scene of occurrence. On the basis of the FIR lodged by the appellant, a case was registered as Crime No. 792 of 2005 under Sections 324, 352 and 506 IPC at P.S. Kotwali, Muzaffarnagar. The injured Balla was rushed to the District Hospital, where he was medically examined at 11.10 p.m. on 12.6.2005. He had sustained serious stab wound in his abdomen from which loops of intestines were coming out.

4. Two accused respondents were arrested by the police and were produced before the learned Chief Judicial Magistrate on 13.6.2005 for the purpose of seeking remand. The accused also moved a bail application seeking bail in Case Crime No.792 of 2005 which had been registered against them. The complainant-appellant Hamida also put in appearance through a counsel and filed an affidavit stating that as a serious injury had been caused to the injured Balla and accused had resorted to firing, the offence committed by them was one under Section 307 IPC, but the police in collusion with the accused had registered the case only under Sections 324, 352 and 506 IPC. It was also submitted that on account of the serious injuries received by the injured Balla, he had been referred to the Medical College, Meerut, and the bail application should be heard after summoning the medical examination report. The learned CJM, however, observed that remand of the accused had been sought only in the offences in which the case had been registered against them and as the offences were bailable, they were entitled to bail. He accordingly passed an order on the same day i.e. 13.6.2005 granting bail to the accused Rashid and Arshad. It was, however, made clear in the order that if the case was converted into a more serious offence, the accused would not get any benefit of the bail being granted to them. Subsequently, the remaining two accused were also released on bail. Balla succumbed to his injuries in the night intervening 16th and 17th of June, 2005. Thereafter, the offence was converted into one under Section 304 IPC. It was at this stage that the four accused respondents filed a petition under Section 482 Cr.P.C. before the High Court seeking a direction to the Chief Judicial Magistrate, Muzaffarnagar, to permit them to remain on same bail even after conversion of the offence into one under Section 304 IPC. The only submission made before the High Court was that on the same facts and circumstances, the accused had been granted bail by the learned Chief Judicial Magistrate and they had not misused the privilege of the bail and, therefore, they should be allowed to remain on bail even after conversion of offence. The High Court accepted the prayer made on behalf of the accused respondents and the relevant part of the order, which is under challenge, is being reproduced below :-

12. In the result, the appeal is allowed. The impugned order dated 1.7.2005 passed by the High Court and all other subsequent orders whereby the accused respondents were directed to remain on bail for the offence under Section 302 read with Section 34 IPC on furnishing fresh sureties and bail bonds are set aside. The accused respondents shall be taken into custody forthwith. It is, however, made clear that it will be open to the accused respondents to apply for bail for the offences for which they are charged before the appropriate Court and in accordance with law.