JUDGMENT
Samarendra Pratap Singh, J.
Page 2645
1. Heard learned Counsel for the petitioner, the State and opp.party Nos. 2, 3 and 4.
2. The instant petition has been filed for cancellation of bail allowed to opp.party Nos. 2, 3 and 4, namely, Jay Prakash Choubey, Shankar Bhagwan Choubey and Mithilesh Choubey @ Akhilesh Choubey by order dated 14.6.2006, passed by the Chief Judicial Magistrate, Buxar in Brahmpur P.S. Case No. 90 of 2005, registered for offences under Sections 341, 323, 504/34 of the Indian Penal Code; lodged by the informant on 28.4.2005, who is the petitioner here. In the said case, police after investigation submitted chargesheet and the learned Magistrate took cognizance of the offences under Sections 323, 341, 307 & 504/34 of the Penal Code and summoned the accused, who are opp.parties here to face trial.
3. The prosecution case in short, is that the accused-opp.parties. namely, Ram Niwas Choubey, Jay Prakash Choubey, Shankar Bhagwan Choubey and Mithilesh Choubey came to the house of the petitioner, hurled abuses on account of some dispute and on the order of Ram Niwas Choubey, all accused persons assaulted the informant – petitioner and his cousin. It is further alleged that accused Jay Prakash Choubey assaulted the informant’s cousin with lathi on his head as a result of which blood oozed.
4. The case was registered against all the aforesaid four accused persons under Sections 341, 323, 504/34 of the Penal Code which are all bailable. On their appearance/surrender on 9.4.2005. the learned Magistrate allowed bail to the accused persons under Section 436 of the Code of Criminal Procedure (in short the Code). After investigation. police submitted chargesheet against all the four accused persons under Sections 323, 341, 307 & 504/34 of the Indian Penal Code on 7.10.2005 and the learned Magistrate also took cognizance of the offence accordingly and summons were issued to them to face trial. When inspite of summons dated 19.12.2005 and 18.3.2006. accused persons did not appear, the informant-petitioner filed a petition for issuance of warrant of arrest which was done on 12.4.2006. It is said that on 14.5.2006, the accused persons, filed a bail petition which was allowed by the learned Magistrate in respect of three accused persons, namely, Jai Prakesh Choubey, Bhagwan Choubey and Akhilesh Choubey, as they had not received the summons and bail petition in respect of accused Niwas Choubey was rejected as he failed to promptly appear inspite of receipt of summons The accused opp.parties 2 to 4 had been allowed bail by the learned Magistrate in the light of the decision of this Court made in the case of Mahendra Prasad Singh v. The State of Bihar reported in 2004(3) PLJR 491.
5. It is submitted on behalf of the informant-petitioner that the facts of the aforesaid case of Mahendra Prasad Singh is different from the instant case, as such, the Page 2646 observations made in that case would not be applicable in the present case. He contended that the learned Magistrate by placing reliance on the above mentioned case erred in law in allowing the accused persons opp.parties to be released on bail.
6. On the other hand, learned Counsel appearing for opp.party Nos. 2, 3 and 4 submits that the learned Magistrate keeping in view the provision of law enunciated in the Code and reiterated in the reported decision of this Court in the case of Mahendra Prasad Singh v. The State of Bihar ordered their release on their furnishing requisite bail bond as they had not misused the privilege of bail.
7. In view of quite number of cases involving similar points/issues, this Court finds it expedient to settle the same.
8. In order to deal with the issue involved in this case, it would be useful to notice the facts of the cases, In Mahendra Prasad Singh’s case, the First Information Report was lodged for non-bailable offences and the police during investigation found the case to be true under bailable offences and released the petitioner after taking him into custody on police bail under the provisions of Section 437(2) of the Code.
The police in the said cases, had filed chargesheet under bailable sections. however the learned Magistrate took cognizance of offence under non-bailable offences too.
9. In the present case, the First Information Report was lodged for bailable offences and the learned Magistrate granted the accused-opp.parties bail under the provisions of Section 436(1) of the Code. However, after investigation police submitted chargesheet also under Section 307 of the Indian Penal Cods, a non-bailable offence and the learned Magistrate allowed them bail following the decision reported in the above cited case.
10. In Mahendra Prasad Singh’s case the accused person filed anticipatory bail petition before this Court. This Court disposing of the same observed that as the petitioner was taken into custody and released on police bail, an application for anticipatory bail on the ground that he has apprehension of arrest in the same case is not maintainable. This Court further observed that if accused petitioner appear in the court below within the time granted his prayer for bail will be disposed of in accordance with law keeping in view the well established principle that a person who is already on bail shall not be denied such privilege unless there is allegations of misuse etc.
11. After hearing the parties and noticing the provisions of law it appears that Section 436(1) of the Code grants power to the Magistrate to grant bail in bailable sections, whereas Section 437(2) of the Code vests power with the police to grant bail if the offence in course of investigation is found to be under bailable section. The two relevant provisions of the Code is quoted hereinbelow for easy reference.
Section 436. In what cases bail to be taken (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Section 437 of the Code. When bail may be taken in case of non-bailable offence.(1) When any person accused of or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be releasesd on bail.
Page 2647 (i) xxxx xxxx (ii) xxxx xxxx
(2) If it appears to such officer or Court at any stage of the Investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, (the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail), or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
12. It would be relevant to refer the decision of this Court in the case of Sardari Mistri and Ors. v. The State of Bihar reported in 2005(3) PCCR 163. In this case, this Court was considering the maintainability of anticipatory bail of an accused after filing of chargesheet when the accused was already granted bail by the learned Magistrate under Section 436(1) of the Code. While holding that the anticipatory bail in such case would not be maintainable, this Court held that bail application of such accused who were on previous bail, on surrendering on filing of chargesheet would be disposed of as per the well settled principles of law with regard to the persons who were already granted bail and the conduct in the interregnum etc.
13. In my opinion, the principle as enunciated in Mahendra Prasad Singh’s case will also be applicable when the F.I.R. is lodged under bailable section and learned Magistrate takes cognizance under non bailable sections on submission of chargesheet under the Non bailable sections. The bail granted by the court would be on a firmer footing then the bail granted by the police under Section 437 of the Code.
14. The crucial issue is whether the accused who is already on court bail under Section 436(1) of the Code prior to submission of final report/chargesheet is required to seek bail again on merit. Whether the accused will have to stand the risk of being refused the bail and sent to jail though he may not have misused the privilege of bail in the interegunnam.
15. In my view, the accused are generally to be granted bail or allowed to remain on previous bail on apperance after summons/warrant, save and except for compelling circumstances. For example: If there is misuse of privilege of bail or for some rare and extreme cases where the offence/accusation turns out to be more ghastly and gruesome than what it apparently appears to be initially. (The underlining is for emphasis).
16. In the facts of the case, the learned Magistrate granted bail to opp.party Nos. 2, 3 and 4 finding the accusation levelled in the F.I.R. under the bailable section though the allegation was that opp.party No. 2 had given Lathi blow on the head of the injured. After submission of chargesheet under non-bailable sections, the learned Magistrate allowed the accused persons to remain on bail on their appearance pursuant to issuance of summons/warrant of arrest as it had been submitted that opp.parties had not misused the privilege of bail and their conduct was satisfactory.
17. This Court finds that the accused on bail has not misused the privilege of bail and accusation contained in the chargesheet was not is such as would have warranted any interference in the order granting bail. As such the application for setting aside order dated 14.6.2006, passed by the Chief Judicial Magistrate, Buxar allowing bail to opp.parties is dismissed. No cost.