JUDGMENT :

By way of filing the present petition under Section 482 of the Code of Criminal Procedure, 1973, the State of Tripura, as petitioner, has challenged the order dated 12.07.2019 passed by the Ld. Judicial Magistrate 1st Class (Smt. Chandita Debnath), Court No.7, Agartala, West Tripura, in case No.2019WAWPS029, rejecting the prayer of the prosecution for according permission to arrest the accused, the respondent herein upon addition of non-bailable offences.

2. Shorn of unnecessary details, I propose to discuss the relevant facts, necessary to decide the case.

3. On the basis of an FIR, lodged by one Sunit Sarkar dated 10.05.2019, the Officer-in-Charge of West Agartala Women Police Station had registered a case, bearing No.2019 WAW 029 against the accused-respondent under Section 501 of IPC on the allegation that he had posted provocative malicious defamatory publication and photographs in the social media concerning the Chief Minister and the other leaders of the State.

4. The accused-respondent was arrested by police in New Delhi on 12.06.2019 in connection with another case registered earlier in West Agartala PS Case No.2019/WAG/83 dated 26.04.2019 under Sections 464/469/501/120B of IPC. The accused was granted bail in the said police case by the Metropolitan Magistrate, Tishazari Court, New Delhi, but no bail-bond was furnished and the accused was produced before the Chief Judicial Magistrate, West Tripura, Agartala on 16.06.2019 upon transit remand. At that stage, some non-bailable offences were added against the accused by the Ld. Court on the prayer of the I.O. and the accused was remanded to police custody and jail custody, and subsequently he was granted bail.

5. Prior to release of the accused-respondent on bail in both the aforesaid cases, the Ld. Judicial Magistrate First Class, Court No.7, added Section 505(1)(c)/153(A) of the Indian Penal Code, which are non-bailable in connection with case No.2019WAW029 on 27.06.2019. The accused did not make any prayer for bail in respect of said non-bailable offences. Being released from jail, the prosecution moved before the Ld. Judicial Magistrate First Class, Court No.6 on 10.07.2019 for according permission to arrest the accused in case No.2019 WAW 029 in connection with non-bailable offences in which the accused even did not pray for bail despite his knowledge about the incorporating some offences which were of non-bailable under the Indian Penal Code.

6. According to the prosecution, the arrest of the accused-respondent was required for unearthing the connection of the accused with other offender/s and conspirator/s and for the purpose of interrogation. More so, the prosecution had pleaded that despite his knowledge of addition of some provisions of the Indian Penal Code which are of non-bailable in nature, the accused did not feel it necessary to pray for fresh bail, against such non-bailable offences.

7. The petition, seeking permission to arrest the accused was moved before the Ld. Judicial Magistrate 1st Class, Court No.6 as the Ld. Judicial Magistrate 1st Class, Court No.7 was not available due to holiday. The Ld. Judicial Magistrate 1st Class, Court No.6 on 10.07.2019 posted the petition for permission to the next day before the Ld. Judicial Magistrate 1st Class, Court No.7 and ultimately it was finally heard on 12.07.2019 after furnishing notice to the accused-respondent.

8. After hearing the learned counsels at length, both on points of fact and law, the Ld. Court had rejected the prayer vide order dated 12.07.2019 passed in 2019WAW029 in the following manner:-

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I find that admittedly, this Court allowed the accused bail U/S 436 Cr.P.C and not U/S 437(1) or U/S 437(2) of Cr.P.C. and as per the decision made in the Hon’ble Apex Court, this Court have the only power to order for re-arrest under Secton-437(5) Cr.P.C. which this Court can not apply in a case the bail has been granted under Section-436 Cr.P.C.

Unless and until a bail has been granted U/S 437(1) or