1. Heard the learned counsel for the petitioner and the learned Additional Government Advocate.
2. By consent, heard finally.
3. The petitioner is one of the accused in the charge-sheet No.262 of 2014 filed on 08.11.2014 in the court of Additional Chief Judicial Magistrate-IV, Court No.28, District Lucknow. Initially, the crime was registered in respect of the offences punishable under Sections 380, 411 of the IPC. The accused was arrested and was released on bail by the Court of Sessions. However, subsequently, when the charge-sheet came to be filed, one more offence viz.- offence punishable under Section 413 of the IPC, was added therein. The Magistrate observed that the petitioner had not obtained bail with respect to that offence and, therefore, issued a non-bailable warrant for the arrest of the petitioner. Being aggrieved thereby, the petitioner has approached this Court by filing the present petition, invoking the inherent powers of this Court and praying that the order issuing non-bailable warrant as passed by the learned Magistrate, be quashed.
4. It is not in dispute that when the petitioner was released on bail, the Investigating Agency had not mentioned anything about the offence punishable under Section 413 of the IPC. Thus, it is not that the bail obtained by the petitioner was by suppressing the facts.
5. The learned Additional Government Advocate submits that it was open for the Investigating Officer to delete some of the charges, or to add some of the charges, which were not initially levelled, as a result of the investigation. This proposition cannot be faulted.
6. However, the procedure adopted by the learned Magistrate was not proper or legal. The petitioner is on bail in the same case and by adding one offence in the list of the offences, the case does not become a different case. The bail in this case had been granted by the Court of Sessions. It is not the case that the petitioner had committed any breach of the terms and conditions of the bail. The proper course, for the Magistrate, therefore, would have been to summon the petitioner and to hear him on the question of bail in view of the additional accusation of a more serious offence, i.e., of an offence punishable under Section 413 of the IPC.
7. In the circumstances, the order issuing non-bailable warrant is not just and proper.
8. The learned counsel for the petitioner submits before me that the petitioner is ready to appear before the Magistrate.
9. In my opinion, the petitioner should be allowed to remain on the same bail, unless the Magistrate thinks it necessary to cancel the bail granted to him in view of the addition of a new charge. It is made clear that in a such case the Magistrate shall issue a notice to the petitioner and give him an opportunity of being heard against the cancellation of bail; and then pass an order in accordance with the law.
10. The petition is disposed of in the aforesaid terms.
[Abhay Mahadeo Thipsay, J.] Order Date :- 18.7.2016 Mustaqeem