Madras High Court
Dhivan vs State on 8 April, 2010
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS (Criminal Jurisdiction) DATED: 08.04.2010 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU Criminal Original Petition NO.4535 of 2010 Dhivan .... Petitioner Vs. State Rep. by The Inspector of Police, Vadalur Police Station, Vadalur, Cuddalore District. .... Respondent For Petitioner : Mr.S.T.Raja for M/s.UR Associates and Om Sai Ram For Respondent : Mr.R.Muniyapparaj Govt. Advocate [Criminal Side] Mr.V.Karthick [Amicus Curiae] Criminal Original Petition for Anticipatory Bail under Section 439 of Cr.P.C. ORDER:
The Court made the following order:-
Heard.
Apprehending arrest at the hands of the respondent police in connection with P.R.C.No.78 of 2009 on the file of the Judicial Magistrate No.III, Cuddalore for alleged offences U/s.323, 506(ii), 302 r/w 201 of IPC, the petitioner has come forward with this petition seeking anticipatory bail.
2. Originally, this case was registered under Sections 323, 506(ii) and 201 of IPC. The petitioner, during investigation, was arrested and later on released on bail by the learned Judicial Magistrate. When final report was submitted, Section 302 of IPC was also added. On the basis of the said final report, according to the petitioner, he is again sought to be arrested by the respondent police not withstanding the fact that he has already been granted bail by the learned Magistrate. It is in these circumstances, the petitioner is before this court with this petition seeking anticipatory bail.
3. The core question is, whether the respondent police has got power to re-arrest the petitioner at this stage though he is enjoying the benefit of order of bail granted by the learned Magistrate?
4. Since the said question involves importance, this Court requested Mr.V.Karthick, the learned counsel to assist this Court as an Amicus Curiae. Accordingly, he has taken pains to analyse the provisions and he has also made his submissions. According to him, the respondent police has no power to re-arrest the petitioner so long as the petitioner enjoys bail.
5. It is needless to point out that under Chapter XXXIII of the Code of Criminal Procedure, 1973 ( in short, "the Code") , if once bail is granted, it shall be in force unless the same is cancelled by the appropriate court. There is no provision in the Code declaring the order of bail granted earlier to stand automatically cancelled. It needs a positive order of cancellation. Such an order of cancellation can be made only after due notice to the accused. The grounds on which such cancellation can be made and the circumstances under which such power of cancellation of bail can be exercised need not be gone into in this petition.
6. After an order granting bail is passed, the second legal process viz., execution of bond to the satisfaction of the Court arises. Though a person may have the benefit of getting an order of bail granted by the competent court, he shall not be discharged from judicial custody unless he executes a personal bond with or without sureties as directed in the order of bail.
7. Section 446 of the Code speaks of the procedure when the bond executed for the appearance of the accused is forfeited. Section 446-A of the Code speaks of cancellation of bond and the bail bond automatically in the event of forfeiture of the bond for breach of a condition. When such a bond stands automatically cancelled and whether any positive order needs to be passed by the Court have been elaborately dealt with by me in Prabakaran v. State [2010 (1) CTC 585]. No where I find any provision in the Code which make the bond or bail bond automatically cancelled, in the event, some more penal provisions denoting serious offences are added in the case. Thus, a plain reading of Chapter XXXIII of the Code would make it manifestly clear that simply because a penal provision denoting a serious offence is added to the case, neither the bail nor the bail bond shall stand automatically cancelled. As I have already stated, it needs an order of cancellation of bail passed by the appropriate Court. Therefore, after adding such penal provision in respect of a serious offence, the police cannot re-arrest the accused as the same would amount to arresting a person who is on bail on the orders of the Court. Of course, the police can approach the appropriate court seeking cancellation of bail and for sufficient grounds, if the court so cancels the order of bail granted earlier, it goes without saying that thereafter, the police can arrest the accused.
8. In this regard, I may have a quick look into some of the judgments of the Hon'ble Supreme Court and various other High Courts.
(i) The Patna High Court in Sita Ram Singh and another v. State of Bihar, 2002 (20 Crimes 482 has also held a similar view. In para 12 of the judgment, the Patna High Court has observed as follows:-
"The aforesaid judgment clearly holds that on a serious change in the nature of the offence the accused becomes, disentitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach for the court concerned would be to apply its mind afresh as to whether the accused is entitled for grant of bail, in the changed circumstances. If the court finds that the accused is still entitled for bail keeping his past conduct etc. in mind, the prayer for cancellation can be rejected otherwise the bail granted for the minor offence may justifiably be cancelled and the accused be taken in custody."
(ii) In Shukhpal v. State of Rajasthan, 1986 (1) RLW 283, the Rajasthan High Court has held as follows:-
"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."
(iii) Again, the Rajasthan High Court in Gheesya and others v. State of Rajasthan, 1989 (1) III Crimes 524 has followed the same view. In para 10 of the judgment, the Court has held thus:
"10. 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 under Section 439(2) of Cr.P.C."
(iv) The Orissa High Court in Kalia @ Saroj Praharaj v. State of Orissa, 2000 (2) Crimes 331 has held as follows:-
"4. ......... Once the accused against whom a case has been registered for commission of a non-bailable offence is released on bail, he cannot be re-arrested if the case is converted to a serious offence that provides severe punishment."
9. Thus, the opinion is almost uniform among various High Courts. learned Government Advocate [Criminal Side] would, however, rely on a judgment of the Hon' ble Supreme Court in Hamida v. Rashid @ Rasheed and others, 2007 (6) Scale 517. In my considered opinion, a thorough reading of the said judgment would go to show that in the said case, the Hon'ble Supreme Court had to consider the scope of inherent power of the High Court under Section 482 of the Code and not in respect of a question which is being dealt with in the instant case. That was a case where the accused were released on bail when the case was for lesser offences. Subsequently, the injured died and therefore, an offence under Section 304 of IPC was added. At that juncture, the accused filed a petition under Section 482 of the Code before the High Court and in that petition the High Court directed that the accused shall continue to remain on bail. While considering the correctness of the said order made under Section 482 of the Code, the Hon'ble Supreme Court held that in such a situation, the inherent power under Section 482 of the Code cannot be used. The relevant portion of the observations of the Hon'ble Supreme Court are as follows:-
"In the case in hand, the accused respondents could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 Cr.P.C. in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the accused respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition under Section 482 Cr.P.C. and issuing a direction to the Subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439 of Cr.P.C., though available to the accused respondents, having not been availed of, the exercise of power by the High Court under Section 482 Cr.P.C. is clearly illegal and the impugned order passed by it has to be set aside.
10. In those circumstances only, the Hon'ble Supreme Court has held that the remedy for the accused is to apply for fresh bail. In my understanding of the judgment of the Hon'ble Supreme Court, the Hon'ble Supreme Court has not laid down that the bail granted earlier shall stand automatically cancelled and therefore, the accused can be re-arrested. Thus, the judgment of the Hon'ble Supreme Court does not come to the rescue of the respondent.
11. In view of the above discussions, I have no hesitation to hold that simply because a penal provision is added in the case in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court. In the instant case, since the bail granted to the petitioner earlier by the learned Magistrate has not so far been cancelled, the apprehension of arrest at this stage when the petitioner is very much on bail is baseless and so, the question of granting anticipatory bail does not arise.
12. In the result, the Criminal Original Petition fails and the same stand dismissed with the above observation.
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