JUDGMENT
Mohini Kapoor, J.
1. 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 Sections 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 11-7-1988, Mst. Manni died and the cause of her death was brain haemorrhage due to head injury. Because, of this development the off nee under Section 302 IPC was added. There after the SHO, Police Station, Deoli moved application 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 anticiptory 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 re-arrest of the accused petitioners. There after, the petitioners came before this Court under Section 438 Cr.PC 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 Section 437(5) and 439(2) Cr.PC 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 and Ors. v. State of Rajasthan 1987 RCC 347
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 Additional Judicial Magistrate, Tonk vide order dated 25-5-1988 and the petitioners have again approached this court under Section 438 Cr.PC. 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 Section 437(5) Cr.PC is not applicable as this matter does not arise because of the adding of non-bailable offence but 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 Section 302 IPC and the matter before the court was under Section 437(5) Cr.PC. 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 Section 438 Cr.PC.
5. I have heard learned Counsel for the petitioners as well as the learned Counsel for the complainant at length. At the out set it can be said that while dealing with the application under Section 437(5) Cr.PC 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 ha\e 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 1 as under the garb of Section 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 have looked into the decisions which can be said to be relevant in this connection.
7. In Khagendra Nath Bayan and Anr. v. The State of Assam 1982 Cr.LJ 2109, it has been held that:
the power of cancellation of bail be exercised with care and circumspection. It was observed that it should be remembered that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection in appropriate cases, when by preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. The court has to strike a balance between the necessities, namely necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until he is found guilty.
As there was no discussion about any supervening circumstances like abuse of liberty, tempering with witnesses, likelihood of absconding etc. the order of the Sessions Judge cancelling the bail is set-aside.
8. The Supreme Court had occasion to deal with the ground for cancellation of bail in State through Delhi Administration v. Sanjay Gandhi and it was observed that “rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in non-bailable case, then to cancel a bail in such a case. Certain passages may be reproduced:
Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.
It was further stated:
In other words, the objective fact that witnesses have turned hostile must be shown to bear a casual connection with the subjective involvement there in of the respondents. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused.
Considering the nature of burden of proof, in the matter of cancellation of bail, it was observed that:
every incidental matter has not to be proved beyond reasonable doubt like the guilt of the accused. The prosecution may establish its case for cancellation of bail by showing only preponderance of probabilities that the accused has attempted to tamper with or has tampered with the prosecution witnesses.
9. In Guru Charan Singh v. State (Delhi Administration and Raj Kumar and Ors. v. State (Delhi Administration AIR 1978 SC 179, the High Court had cancelled the bail granted to the accused persons and they preferred an appeal before the Supreme Court. The learned Sessions Judge in this case had refused to cancel the bail. The order of the High Court was upheld and it was observed:
We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence related to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
Relying upon the decision of the Madras High Court, in Public Prosecutor v. George Williams , the Jammu and Kashmir High Court in Khaliqwar v. State 1974 Cr.LJ 5261 has laid down the five sets of circumstances in which there can be cancellation of bail. These circumstances are as under:
[i] Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted and thereby proves his utter unfitness, to be on bail;
[ii] if he hampers the investigation;
[iii] if he tampers with the evidence;
[iv] if he runs away to a foreign country, or goes underground or beyond the control of his sureties; and
[v] if he commits acts of violence, is revengeful against the police and the prosecution witnesses and those who have hooked him or are trying to hook him.
The Supreme Court again had occasion to consider this question in Bhagirath Singh Judeja v. The State of Gujarat and it was observed that:
Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to absuse the discretion granted in his favour by tampering the evidence.
10. This Court considered this point in Chandan Singh and Anr. v. The State of Rajasthan 1978 Cr.LR (Raj.) 153 and it was observed that:
Section 439(2) Cr.PC. was not punitive. Of Course, bail may be cancelled in a case where the person bailed out has done something which may cause interruption in or obstruction to the smooth trial of a case against him.
On the basis of these decisions it can be said that the principles governing the grant of bail under Sections 437(1) and 439(1) Cr.PC are different from the principles governing the cancellation of bail under Sections 437(5) and 439(2) Cr.PC. For the purposes of cancellation of a bail, the prosecution has to make certain allegations which would go to show that the accused is a person not fit to remain on bail. In other words, after grant of bail there must be some act of the accused which would go to show that either he has tampered with the investigation, or tampered with the evidence, committed; some violence, remained underground or has repeated the offence. The circumstances which existed at the time of grant of bail cannot be re-considered for the purpose of cancelling the bail itself. The circumstances after grant of bail would govern the question of cancellation of bail. So far as this legal position goes, the learned Counsel for the complainant has not been able to challenge it. He has raised two fold of pleas. One ground has already been decided against him in the order passed earlier by this court. The second is that the order cancelling bail cannot be challenged in an application under Section 438 Cr PC but it could be challenged only in a revision of petition Section 482 Cr PC. His contention is that even if, the Magistrate had had no power to cancel the bail under Section 437(5) Cr.PC this court can do so under Section 439(2) Cr.PC for this purpose the words, ‘if it consideres necessary to do so, which find place in Section 437(5) and not in Section 439(2) Cr.PC are said to be relevant
11. I have considered all these pleas that this case does not call for cancellation of bail of the accused persons as shall be seen presently hence, this question does not deserve any consideration.
12. As far as, the question of maintainability of an application, under Section 438 Cr. PC is concerned, it can be said that in the present circumstances it would not be fit that the petitioners file a revision petition or even a petition under Section 482 Cr. PC. This application under Section 438 Cr. PC cannot be said to be inappropriate. After all the petitioners are apprehending their arrest because of the cancellation of their bail and when arrest is apprehended, the petitioners have reason to believe that they may be arrested on the accusation of having committed a non-bailable offence so they can apply for giant of anticipatory bail.
13. The learned Counsel for the complainant has placed reliance on a case Bashir and Ors. v. State of Haryana where in it has has been held that the power of cancellation of bail is applicable in a case of person who has been released under Section 167(2) Cr. PC.
14. In the case of Reghuveer Singh and Ors. v State of Bihar and Simranjit Singh Mann v. State of Bihar the same view was taken.
15. In the case of Jagram v. Ghamandi and Ors. 1980 RCC 364 it was observed that” the question of cancellation of bail under Section 439 Cr.PC. is different from admission to bail and in considering the question of bail, the court is to exercise its judicial discretion and it is to be exercised in favour of the accused unless the Sessions Judge has fallen into some basic error while granting the bail to the accused.
16. The bail granted by the Sessions Judge was sought to be cancelled before the High Court and in the case of Fakruddin v. Abdul Rahim and Ors. 1986 R.C.C. 284 it was held that a person should not be released on bail if there are reasonable grounds of believing that the petitioner has committed an offence punishable with death or imprisonment for life. In this case, the bail granted by the Sessions Judge was challenged before the High Court. In the case of Motilal and Ors. v. State of Rajasthan (supra) wherein it has been held that the petitioners, who were arrested for some non-bailable offence and have been released on bail by the court cannot be re-arrested for a nonbailable offence after adding new section of non-bailable offence.
17. In Shukhpal v. State of Rajasthan 1988 (1) RLW 283, it has been held that “when a person is on anticipatory bail and some new offences have been added during investigation, then police cannot arrest an accused by adding a non-bailable offence. The police must seek an order from the court for cancellation of bail already granted to a person.
18. The principle that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to have been committed by him at the time of investigation of the case, is well settled and if the court considers it proper then the bail granted can be cancelled under Section 437(5) and Section 439(2) Cr.PC. So far this principle is well established. However, it can be said that the ground for cancellation of bail should not be merely that a graver offence is found to have been committed as a result of the investigation but should be some thing different, such as that the accused is likely to abscond, is likely to tamper with the evidence or that he is mis-using his liberty etc. In this case the learned Magistrate has not taken these factors into consideration while cancelling the bail. What he has observed is that the police have not added a non-bailable offence after investigation, but it is the post mortem report in which the doctor has given given the opinion that Manni died as a result of cerebral haemorrhage and the position has become different. The injury to Manni was already there when the Magistrate granted bail and if subsequently this injury has been found to be serious than what appeared to be on an earlier occasion this cannot be said to be a development during investigation and not a subsequent act of the accused persons so as to include it into the reasons on account of which bail already granted could be cancelled. The Magistrate should not cancel the bail merely because there is a power to cancel the same what is required is that there should be ground for cancelling the bail and I have no hesitation in saying that in the persent case the Magistrate has, inspire of any earlier order of this court that the accused persons cannot be arrested, has ordered the arrest of the accused on the same grounds on which they could not be arrested. It is true that the words ” if it considers it necessary so to do” when find place in Section 437(5) Cr.PC are not included in Section 439(2) Cr.PC but every power which the court of Sessions or High Court can exercise is to be exercised in accordance with the principles of criminal jurisprudence and the absence of these words cannot be said to confer unbridled and arbitrary power on the High Court or the court of Sessions to cancel a bail of person already released on bail.
19.This petition is accepted. The order of the Magistrate is set aside and the petitioners shall remain on bail which had been granted to them earlier.
