The authority of the Magistrate to cancel bail when the offence is altered to a more serious charge was established.

The above Criminal Revision Case is filed against the order dated 7.10.2004 made in Cr.M.P.No.3967 of 2004 by the Court of District Munsif-cum-Judicial Magistrate, Palladam.

2. The brief case of the petitioner is that on 10.5.2004 at about 8.30hrs one L.Jeganathan, lodged a complaint at Kamanaickenpalayam Police Station, Coimbatore District alleging that his brother-in-law Semalaipandaram and his friend Balasubramaniam @ Balan had died of consuming liquor; that the case was originally registered in Crime No.120/2004 under Section 174 Cr.P.C and subsequently, on investigation, it was altered into Section 304(A) I.P.C. on 29.5.2004; that the petitioner was arrested under Section 304(A) IPC on 30.6.2004; that the petitioner was subsequently released on bail by the Judicial Magistrate, Palladam; that the investigation was subsequently transferred from the Inspector of Police, Kamanaickenpalayam Police Station to the respondent as per the orders of the Superintendent of Police, Coimbatore; that again the offence was converted from Section 304(A) IPC to 302 IPC; that the respondent upon suspicion without any substantial materials and on the reason that offence under Section 302 IPC is triable excessively by the Court of Sessions, filed a petition under Section 437(5) Cr.P.C. before the learned Judicial Magistrate, Palladam to cancel the bail granted earlier to the petitioner and prayed for issuance of non-bailable warrant against the petitioner;that the learned Judicial Magistrate, after hearing both sides, cancelled the bail granted earlier to the petitioner and issued a Non-Bailable warrant against him and hence, the petitioner has come forward to file the above Criminal Revision Case against that order.

3. Today, when the above Criminal Revision Case was taken up for consideration the learned counsel for the petitioner would submit that the learned Magistrate has failed to see that there is no material available on record to convert the offence under Section 302 IPC; that once the accused had been granted bail, he cannot be arrested if the case is converted to a serious offence that provides severe punishment; that it is a settled proposition of law that an order of bail granted remains operative unless it is cancelled and merely because a case has been registered for an offence which is exclusively triable by Court of Sessions; that the only provision that can be resorted to for cancellation of bail is under Section 439(2) of Cr.P.c if the accused violates the terms and conditions of bail.

4. In support of his submission, the learned counsel for the petitioner would rely on the decision reported in Kalia @ Saroj Praharaj-vs- State of Orissa(2000(2) Crimes 331) wherein it is held by a learned single Judge of the Orissa High Court that

"Coming to the case in hand, the offence with which the petitioner stood, prosecuted were initially registered under sections 341, 324 and 294 I.P.C. and the same being bailable learned Court below admitted him to bail. But since the case subsequently turned to be one under Section 302, I.P.C, learned S.D.J.M. cancelled his bail. Neither Section 436 nor any other provision of the 1973 Code provides that in such a situation the Court of the first instance which granted bail to the accused can cancel the bail and commit him to custody. The only provision that can be resorted to is Section 439 (2) under which power is conferred upon the High Court or the Court of Sessions, but not upon the Court of the first instance."

On such arguments, the learned counsel for the petitioner would pray to revise the order of cancellation of bail passed by the Court of the Judicial Magistrate, Palladam by his order dated 7.10.2004 made in Crl.M.P.No.3967 of 2004.

5. On the contrary, on the part of the respondent the learned Government Advocate (Crl. Side) would submit that once the Section that has been altered from that of bailable by the the Magistrate to that of the Court of Sessions, the lower court is perf