Point of Law: Since petitioner has been granted bail under Section 436, the application under Section 437(5) was not maintainable.

JUDGMENT :

Rule. Rule made returnable forthwith. With consent of the parties, matter is taken up for final hearing.

2. Heard Mr. Aniesh Jadhav learned counsel for the petitioner, Ms. Kaushik, learned Prosecutor for the State and Ms. Abha Singh, learned counsel for the Intervenor.

3. Hon’ble Apex Court in the case of Pradip Ram v. State of Jharkhand (2019) 17 SCC 326 has held that “where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

In paragraph 31 the Hon’ble Apex Court has further held that

“31(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In the event of refusal of bail, accused can certainly be arrested;

(ii) The Investigating agency can seek order from the Court under Section 437(5) or 439(2) Cr.P.C. for arrest of the accused and his custody;

(iii) The Court, in exercise of power under Section 437(5) or 439(2) Code of Criminal Procedure, 1973 can direct for taking into custody the accused who has already been granted bail after cancellation of his bail.

(iv) In a case where an accused has already been granted bail, investigating authority on addition of offence or offences may not proceed to arrest accused, but for arresting the accused on such addition of offence or offences, it needs to obtain order to arrest the accused from the Court, which had granted the bail.”

4. In the case in hand, the petitioner is accused in First Information Report No.43 of 2021 registered by APMC Police Station, Vashi on 7th February, 2021 under Section 304(A), 279, 337, 338 and 427 of the Indian Penal Code, 1860 (‘IPC’ for short) read with Section 184, 134(A)(B) of the Motor Vehicles Act, 1988. All these offences were bailable and, therefore, petitioner was released on bail under Section 436 of the Code of Criminal Procedure, 1973 (“Cr.P.C. for short) by the learned Judicial Magistrate, First Class on 8th February, 2021 on bail bond of Rs.15,000/-.

5. On 13th February, 2021, respondent-State moved an application before the learned Judicial Magistrate, First Class, informing addition of offence under Section 304-II of the Indian Penal Code, 1860 and Section 65(A) of the Prohibition Act. The newly added offence, under Section 304-II is non-bailable and triable by the Court of Sessions. Thereafter respondent moved an application on 22nd February, 2021 before the learned Judicial Magistrate, First Class seeking cancellation of bail granted to the petitioner under Section 436 of the Code of Criminal Procedure, 1973.

6. The learned Judicial Magistrate, First Class vide order dated 26th March, 2021 declined to cancel the bail and also declined police custody of the applicant, as sought by the Investigating Officer. The operative part of the order reads as under:

“1. The cancellation of bail and police custody application filed by I.O. is hereby rejected.

2. The accused is directed to surrender before this Court within 10 days from the date of this order and apply for bail for newly added cognizable and non-bailable offences. 3 On failure to surrender before this Court within specified time. I.O. shall be at liberty to seek arrest of accused.”

7. Feeling aggrieved by the order dated 26th March, 2021, petitioner has approached this Court under Article 227 of the Constitution of India, inter-alia, contending that the prosecution could not have filed an application under Section 437(5) of the Cr.P.C. and further Court had no jurisdiction to entertain the application since the petitioner was granted bail under Section 436 of the Cr.