JUDGMENT Badar Durrez Ahmed, J.
1. This is an application for anticipatory bail. In this case, initially, the FIR was registered for the offences under Sections 147/148/149/308/506/34 IPC. The petitioner was named in the FIR. He was, accordingly, taken into custody on 22.10.2006 and after remaining in custody for over a week, was released on bail on 01.11.2006. Subsequently, the injured (Hetram) passed away on 04.11.2006 and the offence under Section 302 IPC was added. The petitioner now apprehends arrest in respect of the newly added Section 302 and has, therefore, moved this application for anticipatory bail. It was, first of all, contended by the learned Counsel for the State that this application for anticipatory bail is not maintainable because the petitioner was arrested in the same FIR and regular bail had been granted to him on 01.11.2006. According to the learned Counsel for the State, in such a situation, there was no question of entertaining an application for anticipatory bail.
2. The learned Counsel for the petitioner submitted that the application for anticipatory bail was maintainable because the petitioner had earlier been granted bail when the offence punishable under Section 302 was not mentioned in the FIR. At that point of time, the petitioner had been granted bail on the basis of the offences mentioned in the FIR which included the offence under Section 308, but not the offence under Section 302 inasmuch as the deceased (Hetram) had not died by then. He submits that in such an eventuality, when a new graver offence is being added, the petitioner is entitled to move an application for anticipatory bail as he apprehends arrest. The learned Counsel for the petitioner placed reliance on the decision of a learned single Judge of this Court in the case of Jagbir Singh v. State and Anr. 2001 (57) DRJ 768 to submit that once pre-arrest bail is granted, no custodial arrest can be made by the investigating officer without permission of the court in respect of the same FIR. He placed reliance on paragraphs 7 and 8 of the said judgment which read as under:
7. Having heard learned Counsel for the parties, I am of the opinion that once a pre-arrest bail is granted to an accused by a court of competent jurisdiction, no custodial arrest can be made by the Investigating Officer in the same FIR without prior permission of the court in accordance with law. It is not open to the police officer to set at naught the order of pre-arrest bail by merely tinkering with a section in the FIR. The learned Additional Sessions Judge, who has rejected the second application for anticipatory bail on the ground that certain sections have been added in the daily diary, has done grave violence to the judicial authority. I do not subscribe to his interpretation of law.
8. I hold that bail once granted cannot be automatically set at naught by an addition or subtraction of a section of the Indian Penal Code in the FIR. No accused having been admitted to pre-arrest bail can be taken into custody in the same FIR without taking prior permission of the court. In the facts of this case, no restraint other than that imposed by the court can be imposed by the Investigating Officer who, cannot effect custodial arrest of the accused so long as order dated 17.1.2001 has not been modified and/or bail already granted cancelled. In this view of the matter, I set aside the order dated 31.1.2001 of the learned Additional Sessions Judge and direct that order dated 17.1.2001, granting bail, shall remain in operation so long as the court does not deem it fit to modify it.
3. In response to this, the learned Counsel for the State referred to the decision of the Supreme Court in the case of Prahlad Singh Bhati v. NCT of Delhi and Anr. 2001 SCC (Cri) 674. In particular, he referred to paragraph 9 of the said decision which reads as under:
In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where the accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed an irregularity by holding that "I do not agree with the submission made by the learned Prosecutor inasmuch as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not in the spirit of law". With the change of the nature of the offence, the accused becomes disentitled to the liberty grant to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer on him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.
4. The said matter before the Supreme Court emanated from another order of a learned single Judge of this Court wherein the view taken was that if bail is granted once, then, if a new offence is added to the same FIR, non-grant of bail in that eventuality would amount to cancellation of bail. That was the view taken by the Metropolitan Magistrate while passing the order on 22.08.2000. The learned single Judge of this Court, dealing with the matter in CrlM. (M) No. 3262/2000, was of the view that no ground for cancellation of bail had been made out. In that case, initially, the FIR was registered under Sections 406 and 498A IPC. The accused therein were granted anticipatory bail. Consequently, Section 302 IPC was added and a charge-sheet was filed, including the offence under Sections 302, 406 and 498A IPC. Thereafter, the accused was directed to appear before the Metropolitan Magistrate, who, on the appearance of the accused, granted bail even in the case under Section 302 IPC. As indicated above, the Supreme Court was of the view that mere initial grant of anticipatory bail for a lesser offence did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. The Supreme Court also came to the conclusion that neither Section 437(5) nor Section 439(1) of the Code was attracted and there was no question of regarding it as a case of cancellation of the bail earlier granted to the accused for the lesser offences. The Supreme Court was of the view that with the change of the nature of offence, the accused becomes disentitled to the liberty granted to him in relation to the minor offence, if the offence is altered for an aggravated crime. This makes it clear that the view taken by a learned single Judge of this Court in the case of Jagbir Singh (supra) would not hold good in view of the clear dictum of the Supreme Court in the case of Prahlad Singh Bhati (Supra).
5. The position in law, therefore, is that when bail is granted for a lesser offence and subsequently a more serious offence is added during the course of investigation, then the person who apprehends arrest may approach the court for anticipatory bail or if the person is arrested subsequently, he may approach the court for regular bail. The power of the court to grant bail is not taken away nor is the power of the investigating agencies to arrest a person in case an aggravated offence is added. However, that power is subject to the orders that may be passed by the court on an application for bail that may be moved under Sections 438 or 439, as the case may be. The court, once faced with such an application, has to dispose of the application on merits as if it was dealing with the case in the first instance. Therefore, the plea that this application for anticipatory bail is not maintainable is not supported by the law on the subject.
6. Now, the case has to be examined from the standpoint of whether the petitioner is entitled to anticipatory bail on merits.
7. The learned Counsel for the State submitted a report from Rockland Hospital dated 07.12.2006 which indicates that the petitioner allegedly had a history of road traffic accident about three months prior to 17.08.2006 wherein he is said to have sustained a fracture of his right leg bone (tibia) at the time of the accident. The petitioner was admitted to the said hospital on 17.08.2006 and he was diagnosed as a case of non-union of the right tibia and was operated (phemister bone grafting) on 18.08.2006. He was put on a long leg cast after the surgery and the plaster cast has not yet been removed. The removal of the plaster cast would depend upon the healing of the fracture, which is to be seen on serial x-rays. He has been called after two weeks for review. It is reported that the petitioner comes to the hospital for regular follow up and x-rays. Significantly, it is indicated that the petitioner can move freely but he would be on crutches/ walker till his fracture heals completely. It is also indicated that it takes about 4-6 months for this type of fracture to heal after the surgery.
8. These circumstances indicate that from 18.08.2006 till date the petitioner had a long leg cast on his right leg and that although he could move about, he required the assistance of crutches/ walker. The alleged incident occurred on 22.10.2006 at a place which is at a distance of more than 500 meters from the petitioner's place of residence. There are allegations that the petitioner in a group of 15-20 boys came to the spot armed with iron rods, dandas and blunt objects and gave blows to the victims. Thereafter, it is alleged that these persons ran away from the scene of the alleged crime. Looking at the hospital report, prima facie, it appears that the petitioner could not have taken an active part in the alleged incident because of his particular medical condition.
9. Taking this prima facie view, I direct that the petitioner, in the event of his arrest, be released on bail on his furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the arresting officer. It is made clear that this order has been passed based entirely on the basis of the medical condition of the petitioner. His case is different from that of the other co-accused.