Court No. - 34
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4967 of 2021 Applicant :- Yogesh Kumar Dubey @ Dablu And 4 Others Opposite Party :- State of U.P.
Counsel for Applicant :- Surya Pratap Singh Parmar Counsel for Opposite Party :- G.A.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicants, Sri Vikas Sahai, the learned A.G.A. for the State and perused the record.
The instant application has been moved seeking anticipatory bail in light of the apprehension of the arrest of the applicants in Case Crime No.181 of 2020, under Sections 354, 354-A, 354-D IPC and Section 7/8 POCSO Act, Police Station- Gopiganj, District- Bhadohi.
Undisputedly the applicants have been granted regular bail with reference to Sections 147, 323, 354 IPC. The instant petition for grant of anticipatory bail has been made consequent to the addition of Section 7/8 of the POCSO Act and Sections 354-A, 354-D IPC and the apprehension of arrest also rests on addition of the aforesaid provisions.
Dealing with the procedure which the police and investigating authorities are liable to follow in case of addition of sections in respect of an accused who has already been enlarged on bail, the Supreme Court in Pradeep Ram v. State of Jharkhand [(2019) 17 SCC 327] held thus:-
"19 [Ed. : Para 19 corrected vide Official Letter dated 31-7-2020.] . This Court in Hamida v. Rashid [Hamida v. Rashid, (2008) 1 SCC 474 : (2008) 1 SCC (Cri) 234] held that an accused after addition of serious non-bailable offence is required to surrender and apply for bail for newly added offences. It is, thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not enure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest.
27 [Ed. : Para 27 corrected vide Official Letter dated 31-7-2020.] . We may have again to look into the provisions of Sections 437(5) and 439(2) CrPC. Sub- section (5) of Section 437 CrPC uses the expression "if it considers it necessary so to do, direct that such person be arrested and commit him to custody". Similarly, sub- section (2) of Section 439 CrPC provides:"may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody". A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the court before directing arrest of such accused who has already been granted bail must necessarily cancel his earlier bail. A discretion has been given to the court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-bailable offences. The two-Judge Bench judgment in Mithabhai Pashabhai Patel [Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332 : (2009) 2 SCC (Cri) 1047] uses the word "ordinarily" in para 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before the investigating officer to arrest him due to addition of graver and non-bailable offences.
29. Relying on the abovesaid order, the learned counsel for the appellant submits that the respondent State ought to get first the order dated 10-3-2016 [Pradeep Ram v. State of Jharkhand, 2016 SCC OnLine Jhar 3254] granting bail to the appellant cancelled before seeking custody of the appellant. It may be true that by mere addition of an offence in a criminal case, in which the accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where the accused is bailed out under orders of the court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the court before granting permission to arrest an accused on the basis of new offences. The powers under Sections 437(5) and 439(2) are wide powers granted to the court by the legislature under which the court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437(5) and 439(2) cannot be read into restricted manner that order for arresting the accused and to commit him to custody can only be passed by the court after cancelling the earlier bail."
From the principles enunciated in the aforesaid decision, it is manifest that the respondent cannot proceed to arrest the applicants without obtaining an order from the concerned court cancelling the bail which has been granted to them. The applicants can also be arrested where the court concerned proceeds to cancel the bail earlier granted or where they apply for being accorded bail in respect of the newly added sections and the same is refused. The aforesaid legal position which emerges from the decision in Pradeep Ram is fairly conceded to by learned AGA also.
In view of the aforesaid it is evident that the apprehension of arrest as expressed merely on the addition of Section 7/8 of the POCSO Act and Sections 354-A, 354-D IPC is misconceived. Respective parties would have liberty to adopt the procedure as explained in the aforesaid decision.
The petition shall stand disposed of with liberty reserved to respective parties to proceed further in accordance with law.
Order Date :- 21.5.2021/Vivek Kr.