Gheesa And Ors.

vs State Of Rajasthan on 2 August, 1988

Rajasthan High Court Gheesa And Ors. vs State Of Rajasthan on 2 August, 1988 Equivalent citations: 1988 WLN UC 457 Author: M Kapoor Bench: M Kapoor JUDGMENT Mohini Kapoor, J. 1. In an incident which occurred on 30th June, 1988, four persons including one Mst. Manni were injured. The incident occurred when there was a dispute between rival parties about the flow of rain water. A case under Sections 452, 147 and 323, IPC was registered against the accused-petitioners. They were arrested and the trial court namely, Additional Judicial Magistrate, Tonk accepted their bail application and they were released on bail. 2. On 11-7-1988, Mst. Manni died and the cause of her death was given by the Doctor as brain haemorrhage due to the head injury. The offence under Section 302, IPC was added in this case. On 12-7-88, the prosecution applied before the Magistrate that the bail granted to the accused petitioners be cancelled and they should be directed to be arrested. 3. As the offence under Section 302, IPC was added and only a Chief Judicial Magistrate could deal with the matter, the relevant papers along with the application of the prosecution were placed before the Chief Judicial Magistrate, Tonk. He decided this application on 27-7-1988 and after taking into consideration, the facts and circumstances, ordered that the bail granted to the accused petitioners was for the offences under Sections 452, 147 and 323, IPC and this bail order could not be said to be operative in respect of the offence under Section 302, IPC. He clarified that for an offence under Section 302, IPC the Police was competent to arrest the accused without any order from the Magistrate. In other words, he ordered that the bail granted for the offences under Sections 452, 323 and 147, IPC was ineffective for an offence under Section 302 IPC. 4. As soon as the prosecution moved the application for cancellation of bail, the petitioners applied before the learned Sessions Judge, Tonk for grant of anticipatory bail. This application was dismissed on 20th July, 1988. It was contended before the learned Sessions Judge, that when the accused persons are released on bail in a case registered on a particular FIR then they could not be re-arrested if another offence was added in the same FIR. Referring to Section 437(5) Cr.PC it was observed by the Sessions Judge that the Magistrate or the court which granted the bail could order the re-arrest of the accused if a further offence was added in a particular case. The decision of this Court in 1987 RCC 347 was cited before the learned Sessions Judge but he tried to distinguish the same by saying that in that case the police wanted to add an offence under Sections 326 and 307, IPC but in the present case, Section 302, IPC had been added on account of the death of Mst. Manni. Hence the same principle could not be applied. 5. At the outset, it may be stated that the reasoning given by the learned Sessions Judge appears to be based on the premise that because Mst. Manni died the case has to be covered under Section 302, IPC. It appears that, he is of the view that because of the death of Mst. Manni, Section 302 IPC automatically came to be added to the offences made out from the facts of the case, and it is not a case where the Police is seeking orders to add some other offences. The practice of treating every case of death as an Offences under Section 302, IPC. is highly derogatory and it only suggests that the Police or the prosecution do not want to apply their mind in order to decide whether the accused petitioner should be prosecuted for murder of first degree or second degree. The courts should also examine this matter at the time of framing of the charges, instead of treating all cases of death as a case under Section 302 IPC. It cannot be said that an offence can be automatically added to the existing offences.

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Gheesa And Ors. vs State Of Rajasthan on 2 August, 1988

6. Now, I shall come to the main question which has to be decided in this case. When an accused person has been released on bail, in what circumstances, can he be re-arrested? The provisions for this purpose are Section 437(5) and Section 439(5) Cr.PC. Once, a person has been directed to be released on bail either by a Magistrate or a Court of Sessions or by this Court, then only the Court which has directed that the accused person should be released on bail, can order that the accused person should be re-arrested and sent to custody. There is no provision under the Code of Criminal Procedure for the Police arresting the accused person after being released on bail merely because, the facts after investigation disclose some other offences, which were not made out at the time the accused person was released on bail. If such a power is to be given to the Police, then it will be always possible for the Police to add an offence say under Section 307, IPC and arrest a person who has been released on bail for the offences under Sections 331, 333 or 325, IPC etc. Liberty of an individual cannot be made to depend upon some tricks which the Police can play in the matter of adding offences to a particular set of facts and circumstances. It is the court alone, which can deal with the matter of cancellation of bail after it has been granted by it. 7. This very question has been decided in Motilal and Ors. v. The State of Raiasthan 1987 RCC 347. It has been categorically held that when a person has been arrested on account of allegations made in the FIR and released on bail, the position will not change simply by adding a new section of non-bailable offence nor the Police can re-arrest him. 8. I am in respectful agreement with this view as seen above. The learned Chief Judicial Magistrate when he observed that the Police cannot arrest an accused, already released on bail, if another non-bailable offence has been added to the list of the offences made out on the basis of facts in the FIR has completely ignored the provisions of Section 437(5) and 429(2), Cr.PC. 9. In these circumstances, it is ordered that the accused petitioners cannot be re-arrested unless the bail granted to them is cancelled by a competent court. In view of this decision, it is not necessary that the petitioners should be ordered to be released on bail a second time. 10. Accordingly, this petition is, accepted.

Indian Kanoon - http://indiankanoon.org/doc/751736/