MOHINI KAPUR, J.—This case has a very chequered history. An incident took place on 30th June, 1988, about which cross complaints were lodged. On the side of the complainant four persons including one Mst. Manni were injured and the case against the accused persons was registered under sec. 452, 147 and 323 IPC. They were arrested and produced before the Additional Judicial Magistrate, Tonk who accepted their bail application and released them on bail.

2. On 11.7.88, Mst. Manni died and the cause of her death was brain haemorrhage due to head injury. Because of this development, the offence u/s. 302 IPC was added. Thereafter the SHO, Police Station, Deoli moved before the Magistrate to cancel the bail already granted to the petitioners and prayed that they should be directed to be arrested. Due to this application, the petitioners applied before the Sessions Judge, Tonk for grant of anticipatory bail and also contested the application which was moved before the Magistrate. The Sessions Judge, Tonk dismissed the application for anticipatory bail on 20th July, 1988. The view of the learned Sessions Judge, Tonk was that the court which granted the bail can order the re-arrest of the accused if further offence was added to the already existing offences. The Chief Judicial Magistrate, Tonk ordered the rearrest of the accused petitioners. Thereafter, the petitioners came before this Court under Sec. 438 Cr.P.C. and while deciding the same on August 2nd, 1988 it was observed that the learned Chief Judicial Magistrate, Tonk while ordering re-arrest of the petitioners had ignored the provisions of sec. 437 (5) and 439 (2) Cr.P.C. and it was ordered that the petitioners could not be re-arrested unless the bail granted to them was cancelled by a competent court. It was further observed that it was not necessary to order the release of the petitioners on bail as they were already on bail. While arriving at this decision, reliance was placed on Motilal v. State of Rajasthan (1).

3. It was after this, that the prosecution moved an application before the trial court with the prayer that the bail granted to the petitioners be cancelled. This application has been accepted by the learned Addl. Judicial Magistrate, Tonk vide order dated 25 8.88 and the petitioners have been again approached this court under sec. 438 Cr.P.C. It may be stated that in the order of the learned Magistrate, certain rulings have been quoted and in the end it has been observed that sec. 437 (5) Cr.P.C. is not applicable as this matter does not arise because of the adding of non-bailable offence because in the post-mortem report the Doctor has mentioned that the death of Mst. Manni was caused due to the head injury, which is brain haemorrhage. Hence, it has a direct contact with the incident which occurred on 30th June, 1988. Again saying that the offence has been converted under sec. 302 IPC and the matter before the court was under sec. 437 (5) Cr.P.C , therefore, the application was accepted and the bail granted to the petitioners was cancelled.

4. The above order had led the petitioners to move this second bail application under Sec. 438 Cr.P.C.

5. I have heard learned counsel for the petitioners as well as the learned counsel for the complainant at length. At the outset it can be said that while dealing with the application under sec. 437 (5) Cr.P.C. the learned Magistrate has not considered the principles, governing the cancellation of bail already granted. The main ground of cancellation remains that the offences made out earlier have not been altered and section 302 IPC had been added. Even in the earlier order, this court had stated that it was not permissible to cancel bail merely because another offence has been added but the learned Magistrate has under the garb of sec. 437(5) passed the same order by saying that there were grounds for cancelling the bail, already granted to the petitioners.

6. Before coming to the contentions of both the sides, I may look into the

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