Point of Law : Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody accused who has already been granted bail after cancellation of his bail.

ORDER :

Anticipatory bail plea at the instance of accused 1 to 3 in Crime No.261 of 2022 of Kalladicode Police Station, Palakkad is the subject matter of consideration in this petition filed under Section 438 of the Code of Criminal Procedure.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. The learned counsel appeared for the defacto complainant also was heard. Perused the case diary and the relevant decisions placed by the contesting parties.

3. The pertinent question arose for determination is, what is the procedure to be followed when accused were released on bail in a crime where initially bailable offence/offences was/were alleged and subsequently non bailable offence also got incorporated ?

4. The prosecution case is that at 10.15 p.m. on 30.08.2022, accused Nos.1 to 3 brought the defacto complainant on the pretext of settling a dispute in relation to the brother of the defacto complainant. Thereafter, the accused assaulted the defacto complainant with intention to murder him, after sharing common intention to do so. The specific allegation is that the 1st accused beat on the head of the defacto complainant by using a lever. When the defacto complainant fell down, the other accused beat and kicked the defacto complainant on his head and thereby the defacto complainant sustained fracture to his neck bone and other parts of the body. On this premise, the prosecution initially registered a crime alleging commission of offences punishable under Section 341, 323, 325 and 294(b) r/w 34 of the Indian Penal Code (hereinafter 'IPC' for short). Subsequently, offence under Section 307 of IPC also was incorporated on the allegation that accused Nos.1 to 3 assaulted the defacto complainant with intention to murder him.

5. It is submitted by the learned counsel for the petitioner that bailable offences alone were alleged to be committed at the time of registration of FIR, and accordingly the accused were released on bail. The learned counsel for the petitioners would submit further that since non bailable offence under Section 307 of IPC also was incorporated subsequently, the petitioners have the right to approach this Court seeking anticipatory bail, by resorting to Section 438 of Cr.P.C.

6. The learned Public Prosecutor and the learned counsel for the defacto complainant opposed bail on the submission that the police has right to arrest, interrogate and recover the weapon, if any, when non bailable offence/offences also was/were incorporated subsequently on the basis of the materials collected by the investigation team. It is submitted further that, in the case at hand, as a result of attack at the instance of the petitioners herein, the defacto complainant sustained very serious injuries, as could be read out from the discharge certificate of police cases issued from the Medical College Hospital, Thrissur. Thus the allegation of the prosecution that the accused herein, with intention to do away the defacto complainant, attacked and he sustained very serious head injuries. In such a case, incorporation of Section 307 IPC is very well justified, prima facie. That apart, arrest, custodial interrogation and recovery of weapons used by the accused are absolutely necessary to accomplish effective investigation and meaningful prosecution.

7. To be on the crux of the matter, indubitably, initially bailable offences alone were alleged to be committed. Subsequently, offence under Section 307 of IPC also was added based on statements of the defacto complainant, the witnesses, including the Doctor and also based on the treatment certificate showing very serious injuries. On perusal of the case diary, it is discernible that the prosecution rightly incorporated offence punishable under Section 307 of IPC, as contended by the learned Public Prosecutor, since commission of the said offence could be prima facie seen from the materials collected. It is relevant to note that in the discharge certificate for polic