IMPORTANT POINT
The ground for cancellation of bail already granted should not be merely that a graver offence is found to have been committed as a result of the investigation but there should be circumstance, after grant of bail to govern the question of cancellation of bail.

Headnote:(i) Criminal Procedure Code, 1973-Sections 437(1), 439(1), 437(5) and 439(2) - Principles governing the cancellation of bail already granted-Principles governing the grant of bail under sections 437(1) and 439(1) are different from the principles governing the cancellation of bail under sections 437(5) and 439(2) of the Code-The circumstances, existing at the time of grant of bail- Not to be reconsidered for the purpose of cancelling the bail – The question of cancellation is governed by the circumstances after the grant of bail-Judicial decisions. (Para 6)
       (ii) Criminal Procedure Code, 1973- Section 438- Indian Penal Code, 1860 Sections 452, 147 and 323-Prosecution case against the accused persons for the offences under-Release on bail – Four persons were injured-One died because of brain haemorrhage due to head injury -Addition of the offence under section 302, Indian Penal Code-Application to cancel the bail already granted-Accused persons application under section 438 for grant of anticipatory bail- Whether maintainable? (Yes) - Whether the order of cancellation of bail already granted is legally sustainable considering the Circumstances? (No)
       Held: As far as; the question of maintainability of an application under section 438, Cr.P.C. is concerned, it can be said that in the present circumstances, it would not be fit that the petitioners file a revision petition or even a petition under section 482, Cr.P.C. this application under section 438, Cr.P.C. cannot be said to be inappropriate. After all the petitioners are apprehending their arrest because of the cancellation of their bail and when arrest is apprehended, the petitioners have reasons to believe that they may be arrested on the accusation of having committed a non-bailable offence so they can apply for grant of anticipatory bail. (Para 8)
       Further held: The principle that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to have been committed by him at the time of investigation of the case, is well settled and if the court considers it proper then the bail granted can be cancelled under section 437(5) and section 439 (2), Cr.P.C. So far this principle is well established. However, it can be said that the ground for cancellation of bail should not be merely that a graver offence is found to have been committed as a result of the investigation but should be something different, such as that the accused is likely to abscond, is likely to tamper with the evidence of that he is mis-using his liberty etc. In this case the learned Magistrate has not taken, these factors into consideration while cancelling the bail. What he has observed is that the police have not added a non-bailable offence after investigation, but it is the post-mortem report in which the doctor has given the opinion that, Manni died as a result of cerebral haemorrhage and, the position has become different. The injury to Manni was already there when the Magistrate granted bail and if subsequently this injury has been found to be serious than what appeared to be on an earlier occasion this can be said, to be a development during investigation and not a subsequent act of the accused persons so as to include it into the 'reasons on account' of which bail already granted could be cancelled. The Magistrate should not cancel the bail merely because there is a power to cancel the same what is required is that there should be ground for cancelling the bail and I have no hesitation in saying that the present case the Magistrate has, inspite of an earlier order of I this court that the accused persons cannot be arrested, has ordered the arrest of the accused on the same grounds on which they could not be arrested. It is true that the words "if it considers it necessary so to do" when find, place in section 437(5), Cr.P.C. are not included in section 439(2), Cr.P.C. but every power which the Court of Sessions or High Court can exercise is to be exercised in accordance with the principles of criminal jurisprudence and the absence at these words cannot be said to confer unbridled and arbitrary power of the High Court or the Court of Sessions to cancel a bail of a person already released on bail. (Para 10)
       (iii) Criminal Procedure Code, 1973 - Sections 437(5) and 439-The words if it considers necessary so to do in section 437(5)-Absence of these words under section 439(2) cannot be said to confer unbridled and arbitrary power on the courts to cancel a bail of a person already released on bail-Every power is to be exercised in accordance with the principles of criminal jurisprudence. (Para 10)
       Result
       Petition allowed.

JUDGMENT

Mn. Mohini Kapur, J. - This case has a very chequered history. An incident took place on 30th June, 1988, about which cross complaints went lodged. On the side of the complainant four persons including one Mst. Manni were injured and the case against the accused persons was registered under sections 452, 147 and 323, I.P.C. They were arrested and produced before the Additional Judicial Magistrate, Tonk who accepted their bail application and released them on bail.

2. On 11.7.86, Mst. Manni died and the cause of her death was brain haemorrhage due to head injury. Because, of this development, the offence under section 302, I.P.C. was added. Thereafter the SHO, Police Station, Deoli moved before the Magistrate to cancel the bail already granted to the petitioners and prayed that they should be directed to be arrested. Due to this application, the petitioners applied before the Sessions Judge, Tonk for grant of anticipatory bail and also contested the application which was moved, before the Magistrate. The Sessions Judge, Tonk, dismissed the application for anticipatory bail on 20th July, 1988. The view of the learned Sessions Judge, Tonk was that the court which granted the bail can order the re-arrest of the accused if further offence was added to the already existing offences. The Chief Judicial Magistrate, Tonk ordered the re-arrest of the accused petitioners. Thereafter, the, petitioners came before this Court under section 438, Cr.P.C. and while deciding the same on August 2nd, 1988, it was observed that the learned Chief Judicial Magistrate, Tonk while ordering re-arrest of the petitioners had ignored the provisions of sections 437 (5) and 439 (2), Cr.P.C. and it was ordered that the petitioners could not be re-arrested, unless the bail granted to them was cancelled by a competent court. It was further observed that it was not necessary to order the release of the petitioners on bail as they were already on bait. While arriving at this decision, reliance was placed, on Motilal and others, v. State of Rajasthan1.

3. It was after this; that the prosecution moved an application before, the trial court with the prayer that the bail granted to the petitioners be cancelled. This application has been accepted by the, learned Addl. Judicial

1. 1987 RCC 347.

Magistrate, Tonk vide order dated 25.8.88 and the petitioners have again approached this court under section 438, Cr.P.C. It may be stated that in the order of the learned Magistrate, certain rulings have been quoted and in the end it has been observed that section 437 (5), Cr.P.C. is not applicable as this matter does not arise because of the adding of non-bailable offence because in the post-mortem report the Doctor has mentioned that the death of Mst. Manni was caused due to the head injury, which is brain haemorrhage. Hence, it has a direct contact with the incident which occurred on 30th June, 1988. Again saying that the offence has been converted under section 302, I.P.C. and the matter before the court was under section 437 (5), Cr.P.C., therefore, the application was accepted and the bail granted to the petitioners was cancelled.

4. The above order had led the petitioners to move this second bail application under section 438, Cr.P.C.

5. I have heard learned counsel for the petitioners as well as the learned counsel for the complainant at length. At the outset it can be said that while dealing with the application under section 437 (5), Cr.P.C. the learned Magistrate has not considered the principles governing the cancellation of bail already granted. The main ground of cancellation remains that the offences made out earlier have not been altered arid section 302, I.P.C. had been added. Even in the earlier order, this court had stated that it was not permissible to cancel bail merely because another offence has been added but the learned Magistrate has under the garb of section 437 (5) passed the same order by saying that there were grounds for cancelling the b

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Judicial Analysis

SupremeToday

IMPORTANT POINTThe ground for cancellation of bail already granted should not be merely that a graver offence is found to have been committed as a result of the investigation but there should be circumstance, after grant of bail to govern the question of cancellation of bail.

Cases Referred (6)

Judicial Analysis

IMPORTANT POINT
The ground for cancellation of bail already granted should not be merely that a graver offence is found to have been committed as a result of the investigation but there should be circumstance, after grant of bail to govern the question of cancellation of bail.