The court emphasized that the Magistrate is not empowered to cancel bail granted under Section 436 CrPC on the ground of alteration of the Section of law by the police, and highlighted the specific provision under Section 439 (2) CrPC.

ORDER :

The moot question that crops up for consideration of this Court in this Criminal Petition is whether the Magistrate granting bail under Section 436 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), is empowered to cancel the bail under Section 437 (5) CrPC on the ground that the police altered Section of law from Section 324 read with of the Indian Penal Code, 1860 (for short, ‘IPC’) to Section 324, 307 read with 34 IPC.

2. Petitioners herein are accused in crime No.277 of 2020 of Kanigiri police station. Originally, the case was registered against the petitioners for the offence punishable under Section 324 read with 34 IPC on the allegation that there were longstanding disputes between the petitioners and the defacto complainant and others in respect of partition of lands, and on the date of the incident i.e. on 07.10.2020, at about 9.00 AM, when the petitioners were ploughing the land, which is in dispute, the defacto complainant and others questioned them not to plough the land, and in respect of that, a wordy quarrel took place; then, 2nd petitioner beat defacto complainant with an axe on head and beat one Pallapati Suryanarayana with an axe on right hand palm and head; 1st petitioner beat defacto complainant with handle stick of axe on head, and thereafter, both the injured were shifted to Kanigiri hospital. It is pertinent to mention here that the petitioners too got registered a case as against the defacto complainant and others in crime No.278 of 2000 for the offence punishable under Section 324 read with 34 IPC, and during the course of investigation, police altered the Section of law to 147, 148, 324, 307 read with 34 IPC.

3. In the subject case viz. crime No.277 of 2020, the petitioners surrendered before the learned Judicial Magistrate of First Class, Kanigiri and they were enlarged on bail on execution of a personal bond for Rs.25,000/- each, with two sureties for the like sum. After alteration of Section of law, the State filed a petition in Crl.M.P.No.1099 of 2020 under Section 437 (5) CrPC seeking to cancel bail granted to the petitioners, and the learned Magistrate allowed the petition, vide the impugned Order dated 28.12.2020, cancelling the bail granted to the petitioners and directing them to surrender before the Court on or before 05.01.2020. Aggrieved by the same, the present Criminal Petition came to be filed.

4. Section 436 CrPC deals with ‘in what cases bail to be taken’. Section 436 (1) CrPC reads thus:

“(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..”

A plain reading of the aforesaid provision goes to show that when a person is accused of a bailable offence is arrested or appears or is brought before a Court, such person shall be released on bail on his executing a bond.

5. Section 437 CrPC deals with ‘When bail may be taken in case of non-bailable offence’. Section 437 (5) CrPC reads thus:

“Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.”

The abovesaid provision goes to that when the Court releases a person on bail under sub-section (1) or sub-section (2) of Section 437 CrPC, at a later stage, comes to conclusion that it is necessary so to do, direct that such person be arrested and commit him to custody.

6. It is relevant to mention here that the reliefs under Section 437 (1) and (2) CrPC are discretionary ones, in connection with grant of a bail in a non-bailable offence. On a reading of the entire procedure contemplated under Sections 436 and 437 (5) CrPC, it is apparent that once the Magistrate releases an accused on bail