VIJAYPAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BY this application filed under Section 438 of the Cr.P.C., applicant Vijaypal has moved the application for grant of anticipatory bail being implicated in Crime No.166/12 registered by P.S. Kalapipal, Distt. Shujalpur for offence under Sections 323, 354, 506, 450 & 376 of the IPC.

(2.) BY this application Counsel for the applicant has moved an application under Section 438 of the Cr.P.C. for grant of anticipatory bail since in the initial complaint registered before the P.S. Kalapipal, Distt. Shujalpur registered offences only under Sections 323, 354 and 506 of the IPC, which were all bailable offences and the applicant was granted bail. However, subsequently on 30.06.12 the complainant prosecutrix moved another written application stating that she had been raped and the case was registered under Section 376 of the IPC by P.S. Kalapipal, and it enhanced the offence under Sections 450 and 376 of the IPC by filing an additional FIR. Counsel placed reliance on judgment passed by this Court in the matter of Umrao v. State of M.P. [Cr. Misc. No.1799 of 1985 (G) reported in M.P.W.N. 1986-I, page-22] whereby this Court under identical circumstances granted anticipatory bail to the applicant. The Counsel for the applicant also relied on Sayera Bi Vs. State of M.P. [2006 Cr.L.R. (M.P.262] Counsel contended that this Court had held that it was well settled that once accused is released on bail in a particular crime and in case of addition of major offence in the charge sheet, he is not required to be taken into custody, unless there are some compelling circumstances to release. This Court has recently already considered the matter in detail in M.Cr.C. No.5911/2012 and I find that there is no impediment if the subsequent offence is also triable by the same Court i.e. Magistrate in case of smaller offences and the Session Court in the matter of grave offences as per the provisions of law. However, the difficulty arises when the graver offences; as in the present case, is triable by different Court i.e., whereas offence under Section 354 of the IPC is triable by Magistrate, offence under Section 376 is triable only by the Court of Session. In such a case the application is not entertainable under Section 439 of the Cr.P.C. But here the proper application has been moved under Section 438 of the Cr.P.C. by which it is sufficient, that there is only apprehension, in the mind of the accused person that he is likely to be apprehended.

(3.) CONSIDERING the above submissions, I place reliance on full Bench judgment of this Court in the matter of Niranjan Singh and another v. Prabhakar Rajamram Kharote and others AIR 1980 SC 785(1) whereby the fine distinction has been drawn by the Apex Court regarding the term "in custody" and also in the matter of [Ramsewak and others v. State of M.P., 1979 Cri.L.J. 1485] whereby under similar circumstances, the Court had held that grant of anticipatory bail would not stand in way of committing the accused to the competent Court and in this light, I find that the application needs to be allowed. It is hereby allowed.