PAWAN KUMAR GUPTA Vs. STATE NCT OF DELHI

JUDGEMENT

(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 Another: 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:-

(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 Another: 2001 SCC (Cri) 674. In particular, he referred to paragraph 9 of the said decision which reads as under:-