Full Judgment
Gopal Krishna Sharma, J.
1. The petitioners have come to this Court for releasing them on bail under Section 438 Cr. P.C.
2. A report was lodged against the petitioners and an FIR No. 152/86 was registered at PS, Todaraisingh, under sub-Sections 147, 452, 323 & 380 I.P.C. After registering she case the accused-petitioners were arrested on 24-12-86 They then moved a bail application under Section 437, Cr. P.C. before the Magistrate which was accepted and they were ordered to be released on bail. Thereafter, investigation proceeded, and the police found that a case under Section 326 or 307 I.P.C. was also prima facie made out against the petitioners-The petitioners apprehended that they would be re-arrested by the police for offence under Section 326 or 307 I.P.C. An application was moved under Section 438 Cr. P.C. before the Sessions Judge, Tonk, who dismissed the said application on 16th Jan, 1987.
3. Mr. Narendra Jain, the learned Counsel for the petitioners argued that FIR No. 152/86 was registered against the petitioners at PS, Todaraisingh and that in that FIR they have been released on bail. Initially the FIR was registered under Sections 452, 323 & 380, I.P.C. Offences under Sections 452 & 380 I.P.C. are non-bailable offences, so they were arrested and later on, were released on bail. It seems that after the receipt of the X-ray report, the Investigating Officer found that a case under Section 326 or 307, I.P.C. has been prima facie made out against the petitioners, The apprehension of the petitioners is that while adding an offence under Section 326 or 307 I.P.C. they would be re-arrested, and hence, they have come before this Court for anticipatory bail.
4. This is a legal question to be judged. The controversy is that when a person has been arrested for a non-bailable offence and has thereafter been released on bail by the court under Section 437 Cr. P.C. and lateron, the police found that an offence of another section which is also non-bailable in nature, has been prime facie made out against that person, whether in that circumstance, can that person be re-arrested. The simple question is that when an FIR was registered under some non-bailable offence, and the person has been released on bail, and subsequently, some new non-bailable offence is added against him, can that person be re arrested?
5. The offence was added to the same FIR. Once the person has been arrested on account of the allegations in the FIR, simply by adding a new section of non-bailable offence, it does not change the position, nor does it permit the police to re-arrest him. In this case, previously also, a non-bailable offence was alleged against the petitioner in FIR No. 152/86, and for that non-bailable offence, they have been released on bail by the Court. Simply adding a new section of non-bailable offence, does not change the position, the FIR remaining the same. The allegations against the petitioners also remain the same previously, the case was registered Under Section 323, I.P.C. because, medical report was not clear whether any case Under Section 326 I.P.C. was made out or not. Later on, when the X-ray report was received by the police, they thought that a serious offence has been committed. So, instead of an offence Under Section 323 I.P.C. the police thought that an offence Under Section 326 or 307 I.P.C. has been committed by petitioners. So. simply according to further investigation; gravity of the offence has been pointed out by the police. The petitioners who have been released on bail in the same FIR, cannot be re-arrested by the police simply alleging that a new offence Under Section 326 or 307 I.P.C. has been prima facie made out against them. These offences are also non-bailable offences for which the petitioners have been released on bail Therefore, in such circumstances. when a few section is added to the allegations in the FIR, and when the persons have been released on bail, the allegations being the same of non-bailable offence, they cannot be re-arrested by adding a new section of nonbailable offence.
6. Hence, this bail application deserves to be accepted
7. As observed, the petitioners who were arrested for some nonbailable offence and have been released on bail by the court, cannot be re-arrested for a new non-bailable offence after adding a new section to the same-matter.
8. The application for anticipatory bail is therefore, accepted. The SHO/Arresting Officer/Investigating Officer, PS, Todaraisingh is directed that in the event of arrest of the petitioners, they be released on bail on their furnishing a personal bond in the sum of Rs. 2000/- on the following conditions:
(1) That they shall make themselves available for interrogation by a Police Officer as and when required;
(2) that they shall not directly or indirectly make any inducement threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer;
(3) that they shall not leave India without the previous permission of this Court.