IMPORTANT POINTS" When a request is made, the prosecution, can establish its case by showing on a preponderance of probabilities, and not beyond reasonable doubt, that the accused has attempted to tamper or has tampered with its witnesses, or has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice- The power to take back in custody an accused, who has been enlarged on bail, has to be exercised, with care and circumspection but the power, though of an extraordinary nature, is meant to be exercised in appropriate cases.
" Bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the Accused to retain his freedom by enjoying the concession of bail during the trial.

The petitioner herein was granted bail under Section 437 (1) of the Code of Criminal Procedure, 1973 ( the “Code” for brevity) by the learned Magistrate on 23.11.2018 after he was arrested in Crime No.1528 of 2018 registered at the Mundakkayam Police Station on 17.11.2018 under Sections 354 and 354A of the IPC.

2. While the petitioner was enjoying the liberty granted as above, he was served with Annexure-J notice dated 14.12.2018 directing him to appear before the Court below on 17.12.2018. The terse order passed by the court below reads as follows:-

“Heard. On perusal of the CD filed and arguments of counsel and APP, it is clear that prima facie offence under Section 376 IPC is made out. Hence, accused shall appear on 17.12.2018.”

3. The above order is under challenge in this petition filed under Section 482 of the Cr.P.C. The apprehension evidently is that the learned Magistrate has concluded that if prima facie offence under Section 376 of the IPC is made out, he would be remanded to on his appearance.

4. A brief resume of the facts emerging from the case diary needs to be narrated to have an idea of the events which led to the passing of the above order by the learned Magistrate.

5. On 17.11.2018 at about 8.30 p.m., the de facto complainant was sitting on the ladies' seat of a crowded KSRTC bus on her way to Kumarakom. The petitioner herein, who was a co-passenger, is alleged to have inserted his penis through her armpit in an attempt to masturbate. She alleges that she got up and pushed him away. She further alleges that the petitioner managed to ejaculate on her clothes. Whether any such incident happened or not or whether the allegations are improbable need not be delved into detail at this stage as the bone of contention raised in this petition is with regard to the jurisdictional competence of the learned Magistrate to summon the petitioner suo motu.

6. The learned Senior counsel would contend that at the stage of investigation, there is no power or authority available to the Court either by virtue of any statutory provision or by way of judicial precedent to hold that a prima facie case is made out under Section 376 of the IPC when no application for cancellation of bail has been filed by the prosecution. The learned Senior counsel would also refer to the order passed by the learned Magistrate and it was submitted that the Court had taken note of the prosecution allegation that it was a case of rape. However, in view of the fact that the incident had taken place in a crowded bus and taking note of the improbability of the version, the learned Magistrate had decided to grant bail to the petitioner. The petitioner was in custody from 17.11.2018 till 23.11.2018 and it was thereafter that bail was granted on stringent conditions. Essentially, the contention is that bail having been granted in a non bailable offence, further addition of a graver offence will not clothe the Court below to issue an order as has been done in the instant case.

7. I have heard the learned Public Prosecutor, who submitted that there is no reason for this Court to interfere under Section 482 of the Code. It is submitted that the learned Magistrate was well justified in directing the petitioner to appear as the Section 437(5) would clothe him with the powers to issue an order as rendered in the instant case.

8. I have anxiously considered the submissions advanced.

9. There cannot be any doubt that if under Chapter XXXIII of the Code (in short, "the Code"), once bail is granted, it shall be in force unless the same is cancelled by the appropriate court. Sub section (5) of Section 437 of the Code provides that 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 object of Section 437(5) of the Code is to enable the court on sufficient materials being placed before it to cancel the bail granted or to direct