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10. At the time of hearing, Mr. A.K. Bhowmik, learned Advocate General has submitted that the Ld. Magistrate has failed to exercise its jurisdiction vested upon it, which caused serious Page - 6 of 19 miscarriage of justice and which tantamounts to abuse of the process of the Court. Learned Advocate General has further submitted that the Ld. Court below wholly misread and misconstrued the provisions of Sections 436 and 437 of the Code of Criminal Procedure in rejecting the prayer of the State- petitioner. It is the further contention of learned Advocate General that the Ld. Court has failed to evaluate the principle enunciated in Hamida vs. Rashid alias Rasheed, (2008) 1 SCC 474 as well as the decision of the Supreme Court in Pradeep Ram vs. State of Jharkhand, 2019 SCC OnLine SC 825. It is urged before this Court that the State did not file the petition for cancellation of bail, but, only sought for permission to arrest the accused person and interrogate him on the ground of addition of Section 505(1)(c)/153(A), which are non-bailable in nature in connection with case No.2019 WAW 029 on 27.06.2019. Despite his knowledge, the accused did not make any prayer for bail in respect of the said non-bailable offences till the date of filing that petition. In that event, the jurisdiction lies only with the Court, which grants the bail to an accused in view of the principle enunciated in Pradeep Ram(supra). But the Ld. Court below has erroneously held that since the said Court had allowed the accused to go on bail under Section 436(2) CrPC, the same Court has no jurisdiction or vested with the power to cancel the bail under Section 437(5) CrPC and under Section 439(2) CrPC, as those powers were conferred with the superior Courts. Ld. Advocate General has Page - 7 of 19 prayed for setting aside the said order dated 12.07.2019 and for according necessary permission to arrest the accused person. Ld. Advocate General has placed reliance on paragraph 29 of the decision of the Supreme Court in the case of Pradeep Ram(supra).

12. Entering into the merits of the case, Mr. Roy Barman has contended that the accused-respondent is totally innocent and has falsely been implicated with the case. The non-bailable offences have been added only to harass the accused-respondent and the Ld. Magistrate has rightly rejected the prayer for cancellation of bail filed by the petitioner-State. According to learned counsel, the concerned Magistrate has no power to pass Page - 8 of 19 an order for re-arrest of the accused-respondent after granting bail under Section 436 of CrPC. It is further contended that power under Section 437(5) of CrPC to re-arrest the accused-respondent only lies with the superior Courts, i.e. the High Court or the Sessions Court, and in exercise of power under Section 436 of CrPC, the Ld. Magistrate cannot cancel the bail which the Court granted earlier in connection with a case having offences of bailable nature.

(iii) However, on addition of a non-bailable offence or offences, the police may not proceed to arrest the accused, but for arresting the accused, the investigating agency needs to obtain permission or order to arrest the accused from the Court which had granted the bail.

23. Coming back to the facts of the instant case, the respondent, who being an accused of the case bearing No.2019 WAW 029, was enlarged on bail by an order passed by the Ld. Magistrate in exercise of its power under Section 436 of CrPC. He has mandatorily to take bail due to the addition of Sections 505(1)(c)/153(A) of IPC which are of non-bailable offences in Page - 14 of 19 connection with case No.2019 WAW 029 on 27.06.2019. But he did not make any prayer for bail in respect of the said non-bailable offences though addition of such non-bailable offences was within his knowledge. After addition of such non-bailable offences the investigating agency had approached the Ld. Court of Magistrate which granted bail to the respondent and sought for permission to arrest him and to take him in custody. The Ld. Court of Magistrate came into the finding that he released the accused-respondent on bail in exercise of its power under Section 436 of CrPC and he cannot cancel the bail already granted to the accused-respondent even on addition of non-bailable offences unless and until the conditions/factors laid down in sub-section (2) of Section 436 of CrPC are not complied with. The Ld. Court below has further observed that the Court of Magistrate has no power to exercise the jurisdiction under Sections 437 and 439 of CrPC which absolutely lies with the High Court and the Sessions Court.

29. The power vested upon the Court under Section 436 to Section 439 of CrPC in regard to bail was dealt with by the Supreme Court in the case of Pradeep Ram(supra) in the following manner:[SCC OnLine p.6, para 19, 20, 21] "19. We may refer to the relevant provisions of the Cr.P.C. regarding grant of bail. Chapter XXXIII of the Code of Criminal Page - 17 of 19 Procedure, Sections 436 to 439 deals with bail. Section 437 deals with the provision when bails can be taken in case of non-bailable offence. Section 437(5), which is relevant for the present controversy is as follows:-