Addition of a graver and non-bailable offense after grant of bail leads to cancellation of bail.

JUDGMENT :

MAHENDAR KUMAR GOYAL, J.

1. This criminal misc. bail cancellation application has been filed by the complainant seeking quashment of the order dated 24.10.2016 passed by the learned Additional Sessions Judge No. 19, Sanganer, Jaipur Metropolitan, whereby, the application filed by the State of Rajasthan under Section 439(2) Cr.P.C. seeking cancellation of the bail extended to the non-petitioners No. 2 to 4 by the investigating agency under Section 436 Cr.P.C., on addition of graver and non-bailable offence under Section 308 IPC, has been rejected.

2. The brief facts as emerge are that the complainant has lodged an FIR No. 286 dated 26.6.2015 with the Police Station Sanganer Sadar, Jaipur (East) under Sections 143, 452, 323, 341, 379, 427, 148, 504 and 506 IPC. After investigation, the investigation agency found the allegations to be prima facie proved under Sections 147, 148, 149, 323, 341, 324, 325, 504, 506 and 427 IPC and since all the offences were bailable, the non-petitioners were extended benefit of bail by the investigating agency under Section 436 Cr.P.C. However, later on Section 308 IPC was added and the same being non-bailable offence, the State Government moved an application under Section 439(2) Cr.P.C., which came to be rejected, as aforesaid, which has been assailed herein.

3. The learned counsel for the petitioner submitted that once the graver and non-bailable offence was added, the benefit of bail already extended to the accused-non-petitioners No. 2 to 4, was liable to be cancelled and no discretion was left with the learned Additional Sessions Judge in rejecting the application. He relies upon judgment of the Hon'ble Apex Court of India in Pradeep Ram vs. State of Jharkhand & Ors. 2019 (9) SCALE 120 and the judgment of a coordinate bench of this Court in Abdul Gafoor vs. State of Rajasthan, S.B. Criminal Misc. Petition No. 1290/2012 dated 14.6.2012 to fortify his submissions.

4. Learned Public Prosecutor supported the submissions made by the learned counsel for the petitioner and prayed that the application seeking cancellation of bail, be allowed.

5. Per contra, the learned counsel appearing for the accused-non-petitioners No. 2 to 4 submitted that the law does not mandate cancellation of bail in each and every situation where after the benefit of bail, a graver and non-bailable offence is added. He submits that the learned Additional Sessions Judge has, after perusal of the entire material on record, rightly rejected the application seeking cancellation of bail, which does not warrant any interference by this Court under its concurrent jurisdiction. He further submits that the petitioner did not move any application seeking cancellation of bail before the learned Sessions Court as it was moved by the State Government, which has not assailed the order impugned dated 24.10.2016 and hence the application, on behest of the complainant, is not maintainable. He, therefore, prayed for rejection of the application seeking cancellation of bail.

6. Heard the learned counsels for the parties and perused the record.

7. The Hon'ble Apex Court has, in Prahlad Singh Bhati vs. NCT, Delhi & Anr. (2001) 4 SCC 280, held in para 9 as under:

"9. In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted