Hon'ble RATHORE, J.— By this criminal miscellaneous petition, the petitioners seek o challenge the order dated 05.09.2008 (Annexure-8), passed by the learned Additional District and Sessions Judge, Sambhar Lake, District Jaipur. The learned court below while allowing the application under Section 439 (2) Cr.P.C. filed by the prosecution, cancelled the bail granted to the petitioners in F.I.R. No.138/2008, Police Station Renwal, district Jaipur.

2. Briefly stated, the facts of the case are that one Bhagwan Sahai lodged a report on 17.06.2008, in respect of an incident, which had taken place on 16.06.2008. The said report was registered as FIR No. 138/2008 at Police Station, Renwal District Jaipur for the offences under Sections 143, 341, 323, 447 and 379 IPC. Thereafter, the investigation commenced and on conclusion of the same, police filed challan on 07.07.2008 for the offences under Sections 341, 323 & 325 IPC. The offences being bailable one, the petitioners were released on bail on 07.07.2008 (Annexure-1).

3. In this case, the injured namely Smt. Jamna Devi was given medical aid in the hospital at Renwal wherefrom she was referred to SMS Hospital, Jaipur on 17.06.2008. Subsequently, the injured was discharged from hospital on 01.07.08. The injured was re-admitted in SMS Hospital, Jaipur for treatment but she succumbed to her injuries and died on 03.08.2008. After the death of the injured, the complainant filed an application to the police, who had then prepared a Panchnama and also got the postmortem conducted through a Medical Board. As per the opinion given by the Medical Board, in the postmortem report, the cause of death was septicemia as a result of ante-mortem injuries. Therefore, according to the Investigation Agency, an offence under Section 302 IPC was found to be made out in the case.

4. The prosecution then filed an application for cancellation of bail of the accused persons on the ground that the investigation in the matter is to be done. It was also mentioned by the prosecution that the challan, in this case, had been filed in the court of learned Magistrate on 07.07.2008 and the bail-bonds of the accused-petitioners were attested by the learned court as the offences were bailable. Therefore, it was stated by the prosecution that in such view of the matter, it was not possible to take the accused persons in custody. Accordingly it was prayed that the order dated 07.07.2008 may be cancelled so that the accused persons can be arrested and further investigation may be conducted.

Initially an application under Section 437(5) Cr.P.C. was filed before the learned Magistrate concerned who, vide his order dated 06.08.2008, dismissed the application as not maintainable. Subsequently, the prosecution filed an application under Section 439(2) Cr.P.C. before the learned District & Sessions Judge, Sambhar Lake, District Jaipur to which the accused persons filed a reply. The learned court below then decided the application, vide order dated 05.09.2008 and while allowing the same it was ordered that the bail granted to the accused persons in FIR No. 138/2008, registered at Police Station Renwal, Jaipur be cancelled.

5. The learned counsel for the petitioners has submitted that once a bail is granted in minor offence then in a situation when graver offences are added later, then the bail granted earlier cannot be cancelled nor it is necessary for the accused-persons to seek first bail in the matter. In support of his submission, he places reliance on the cases of Prabhu vs. State of Rajasthan & Anr., AIR 1986 RCC 474; Vijendra Kumar vs. State of Rajasthan, 1988 Cr.L.R. (Raj.) 689 and on the case of Sita Ram Singh & Anr. vs. State of Bihar, 2002(2) Crimes 482.

The learned counsel for the petitioners has also submitted that in the instant case, the challan had already been filed on 07.07.2008 and nothing remained pending in the matter. Therefore, he has submitted that further investigation by the police could not have been done witho

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