Case Note & Summary
The applicant, Majid Nisar Khan, filed an anticipatory bail application under Section 438 of the Code of Criminal Procedure, 1973, before the Bombay High Court. The case arose from an FIR lodged by Rajesh T. Shinde on 29 November 2017, alleging that on 28 November 2017 at about 9:30 pm, unidentified persons entered the office of Nobel Chambers, assaulted the complainant with a stick, and created a ruckus. The FIR initially invoked Sections 323, 324, 504 read with 34 of the Indian Penal Code, 1860. The applicant was arrested on 29 November 2017 and produced before the Metropolitan Magistrate at Ballard Pier, Mumbai, who granted him regular bail on the same day. Subsequently, on 9 December 2017, the police added Section 452 IPC to the crime and directed the applicant to appear before the Magistrate for further proceedings. The applicant then approached the Sessions Court with Anticipatory Bail Application No. 1987 of 2017, which was rejected on 4 January 2018. The High Court noted that the FIR clearly mentioned the incident occurring at 9:30 pm, but Section 452 was not applied initially. The court observed that the addition of Section 452 after the applicant was granted bail appeared to be an afterthought aimed at increasing the gravity of the offence. The court granted anticipatory bail to the applicant, directing him to cooperate with the investigation, not tamper with evidence, and attend the police station as required. The application was disposed of accordingly.
Headnote
A) Criminal Procedure Code - Anticipatory Bail - Section 438 CrPC - Addition of Section 452 IPC after regular bail - The applicant was granted regular bail by the Metropolitan Magistrate under Sections 323, 324, 504 r/w 34 IPC. Subsequently, police added Section 452 IPC as an afterthought to increase gravity. The Sessions Court rejected anticipatory bail. The High Court held that the addition of Section 452 was an afterthought and granted anticipatory bail, directing the applicant to cooperate with investigation and not tamper with evidence. (Paras 6-7)
Issue of Consideration
Whether the applicant is entitled to anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, when Section 452 of the Indian Penal Code, 1860 was added after the applicant was granted regular bail by the Magistrate.
Final Decision
The High Court allowed the anticipatory bail application. The applicant was directed to be released on bail on executing a PR bond of Rs. 25,000/- with one or two sureties. The applicant was directed to attend the concerned police station as and when required and not tamper with the prosecution evidence.
Law Points
- Anticipatory bail
- Addition of Section 452 IPC after bail granted by Magistrate
- Afterthought
- Gravity of offence
- Section 438 CrPC
