1. - By the impugned order passed on 25.1.2006, the Judicial Magistrate (1St Class) No. 2, Sujangarh allowed the application of the State filed under Section 437(5), Criminal Procedure Code., in Criminal Case No. 85/2005 and issued warrant of arrest cancelling the bail granted earlier to the petitioners. Aggrieved against the said order, the petitioners -have filed the present petition under Section 482, Criminal Procedure Code. praying for restoration of the bail bonds.

2. Facts of the case indicate that F.I.R. was registered with police at P.S. Chhapur (Distt. Churn) alleging offence against the petitioners under Section 498-A, Indian Penal Code. The petitioners preferred application for bail under Section 437, Criminal Procedure Code., and they were allowed bail.

3. It is alleged in the F.I.R. registered on the complaint of Salma Bano, daughter-in-law of Petitioner No. 1 Smt. Jubeda and sister-in-law of Petitioner No. 2 Khatija that the petitioners gave ill-treatment to her and always used to say that Arif (husband of the complainant) would contract nikah with another girl despite the fact that her husband Arif was ready and willing to keep her. As per allegation, on 25.5.2005, at about 7.00 A.M., both the petitioners entered into her room and poured kerosene upon her and lit fire which resulted in serious burn injuries sustained by her. After investigation, the police filed challan under Section 498-A, Indian Penal Code. on 29.6.2005 specifically mentioning that no offence under Section 307 Indian Penal Code., is made out against the accused. Before that, on 27.6.2005, the petitioners were granted bail under Section 437, Criminal Procedure Code.

4. The injured Salma Bano died on 28.7.2005. On the event of death of the injured, the prosecution filed subsequent charge-sheet adding offence under Section 302 Indian Penal Code. and, thereafter, moved application under Section 437 (5), Criminal Procedure Code. for cancellation of bail. As indicated above, the trial Court allowed the application and cancelled the bail granted to the petitioners.

5. It is contended by learned counsel for the petitioners that the subsequent challan adding offence under Section 302 Indian Penal Code. is not permissible to be filed under Section 173, Criminal Procedure Code., inasmuch as after completion of the investigation the police had already filed report under Section 173(2), Criminal Procedure Code. on 29.6.2005 for offence under Section 498-A, Indian Penal Code. and there is no provision under Section 173, Criminal Procedure Code. to permit the prosecution to file another charge-sheet adding offence under Section 302 Indian Penal Code. It is vehemently contended that even offence under Section 307 Indian Penal Code. was not made out at the time of filing the initial charge sheet, therefore, without any provision of law, because the injured subsequently died after one month of filing the challan, offence under Section 302 Indian Penal Code. could not be added.

6. It is further contended that earlier, the investigation having been conducted by the police and no offence under Section 307 Indian Penal Code. was made out against the petitioners, the Court granted bail to the petitioners under Section 437, Criminal Procedure Code. and, thereafter, if subsequent challan. is filed adding offence under Section 302 Indian Penal Code. the liberty already granted to the petitioners on bail under Section 437 of the Code cannot be snatched away by way of passing order upon the application filed by the prosecution.

7. It is argued by learned counsel for the petitioners that discretion lies with the Court under Section 437 (5), Criminal Procedure Code. by virtue of the provision 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. By its very language sub-section (5) of Section 437 of the Code makes it clear th