Doom Dooma Police Station registered a case being Doom Dooma P. S. Case No. 26 of 1985 under Section 147/325, IPC against the respondents and one Shri Rajendra Rai in connection with an occurrence which took place on 19.2.1985. The respondents and Sri Rajendra Rai surrendered on 23.2. 85 before the Court of the Sub-Divisional Judicial Magistrate, Tinsukia. As the offences were bailable, the learned Magistrate released them on bail on 23.2.85 under Section 436 Cr PC. During the investigation, the injured Annaram Pareek died in St. Luk's Hospital. Therefore, the Investigating Officer made a request to the learned Magis­trate that an offence under Section 302, IPC be allowed to be added in the case and also for allowing them to arrest the res­pondent in connection with the case. On 4.3.1985 the learned Sub-Divisional Judicial Magistrate passed an order allowing the prayer of the Investigating Officer. The relevant portion of the Order runs as follows :

"Let Section 302 of the Indian Penal Code be added along with other Sections of Law. As Section 302 or the Indian Penal Code is a non-bailable offence, hence the prayer of 1/0 is allowed. Permission is granter to rearrested the accused persons as prayed."

2. On 6.3.85, the respondents and Rajendra Rai filed Cril. Misc. Case No. 66 of 1985 in the Court of Session; Dibrugarh under Section 438, Cr. PC for granting pre-arrest bail. Records show that on 6.3.85, the present petitioner, Krishnalal Pareek also filed an objection against the granting of the pre-arrest bail. The objection of the present petitioner was registered as Crimi­nal Misc. Case No. 68 of 1985 treating the objection as one for cancellation of the pre-arrest bail. On 6.3.85, the learned Sessi­ons Judge passed an order under Section 438 directing the O.C., Doom Dooma P.S. to allow the accused to go on bail of Rs. 6000/--each with one local surety of each, to his own satisfaction, in the event of their arrest, in connection with Doom Dooma P.S. Case No. 26/85. The learned Sessions Judge also passed an order on 24.4.85 in Criminal Misc. Case No. 68 of 1985 that the petition for cancellation of bail stood rejected. Being aggrieved by the said order, dated 6.3.85 and 24.4.85 the petitioner, Krishaalal Pareek has filed the revision petition in this Court.

3. Mr. J. P. Bhattacharjee, learned counsel for the petitioner has submitted that the petition for grant of pre-arrest bail was not maintainable, and that in view of the decision of the Supreme Court in Pokar Ram vs. State of Rajastnan, AIR 1985 SC 969, the order of the learned Sessions Judge granting bail cannot be allo­wed to stand. Mr. S. Birmiwal, learned counsel for the respon­dent has submitted that in view of the order passed by the learned Magistrate to arrest the accused persons, they had no other alternative but to approach the Sessions Court for the pre-arrest bail and that the decision in Pokar Ram (Supra) cannot be applied in the present case.

4. The question which arises for consideration is whether the order of the Sessions Judge granting the pre-arrest bail can be allowed to stand. The learned Sessions Judge granted the pre-arrest bail on the grounds (a) that the accused persons who were already granted the bail on 23.2.85 had to face rear rest under order dated 4.3.85 without cancelling of their earlier bail: (b) that no notice was given to the accused to show cause as to why the bail bonds should not be cancelled; (c) that the learned Magistrate straightway gave the direction to the police to arrest the accused under the same case; (d) that the status of the petitioner would not be changed even if the offence was converted into one under section 302, IPC from that of Section 325, IPC; (e) that there was no report against the accused for violation or misuse or abuse of the direction of the Court.

5. Under Section 436, there is no provision for cancella­tion of bail. However, under sub-section (2) of Section 436, the Court may refuse to release the accused on bai

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