ISRANI, J. - (1.) THIS is second bail application filed by the petitioner u/s. 438 Cr. P. C. in a case registered vide FIR No. 286/86 dt. 25. 5. 86 for offence under Section 324 IPC, which later on has been converted u/s 326 IPC.
(2.) LEARNED counsel for the petitioner Shri vs. Gurjar has raised a legal point for grant of bail to the accused-petitioner, therefore, it is not necessary to give factual details It will suffice to say that the accused petitioner was charged to have committed offence under Sec. 324 IPC, which is bailable and he was granted bail by the Investigating Officer u/s 436 Cr. P. C. However, after receipt of medical report, the offence was converted u/s 326 I. P. C, which is non bailable offence and the person accused of having committed offence under Section 326 IPC is liable to punishment of imprisonment for life or with imprisonment for a term, which may extend to 10 years and is also liable to fine. LEARNED counsel has contended that the petitioner was granted bail u/s 436 Cr. P. C. and subsequently when the offence was converted u/s 326 IPC the bail was cancelled, even though the petitioner was granted bail by the Investigating Officer himself, he is sought to be arrested. He has contended that since the petitioner was granted bail u/s 436 Cr. P. C, now the Investigating Officer is now empowered to arrest him unless the bail granted to the petitioner is cancelled either by the Sessions Court or by the High Court. Learned counsel has pointed out that under the provisions of Sec. 436 Cr. P. C. once the bail is granted to a person accused of bailable offence, it is only when the accused person has failed to comply with the conditions of bail bond as regards the time and place of attendance that the bail granted to him may be cancelled. He therefore, contends that there is no provision u/s 436 Cr. P. C. under which the Investigating Officer or the court which granted bail may cancel it even though the offence has been converted into the non-bailable offence and this can be done only by a higher court as mentioned above. He has drawn my attention to the case of Rati Lal Bhanji Mthani Vs. Assistant Collector of Customs, Bombay (I), in which their Lordships of the Supreme Court have held that the Code of Criminal Procedure makes no express provision for the cancellation of a bail granted under S. 496 (Code V of 1898 ). Nevertheless, at any subsequent stage of the proceedings, if it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. He has also drawn my attention to the case of Janardan Yadav Vs. State of Bihar (2) in which also similar view has been taken and the case of Rati Lal ( supra ) has been referred with approval. Learned counsel has, therefore, contended that this gives indication that u/s 436 Cr. P. C. the Investigating Officer or the Court, which initially granted bail to the accused when he was alleged to have committed bailable offence, have no power to cancel the same and it is only the Sessions Court or the High Court, which is empowered to do so It has been, therefore, urged that the application filed by the petitioner u/s 438 Cr. P. C. deserves to be accepted Mr. K. N. Shrimal, learned Public Prosecutor has opposed the application and has urged that the Investigating Officer or the court, which initially granted bail to the accused as he was alleged to have committed bailable offence has power to rearrest the person subsequently when the offence is converted into one, which is non-bailable offence as in the present case. I have heard the rival contentions of both the parties. It is evident that in the first instance when the bail was granted to the petitioner, he was charged to have committed offence u/s 324 IPC, which is bailable offence. Therefore, the Investigating Officer rightly granted bail to him u/s 436 Cr. P. C. to which he was entitled. Subsequently, on the basis of medical report the offence was converted to one under S. 326, I. P. C. which is non-bailable offence, therefore, the Investigating Officer sought to rearrest him. It will be seen when the offence u/s 324 IPC was converted to one u/s 326 IPC, the provisions of Sec. 436 Cr. P. C. are no more applicable to the case of the accused petitioner. The provisions of Sec. 436 Cr. P. C were applicable to his case only when be was charged to have committed a bailable offence. Therefore, when subsequently he was charged to have committed non-bailable offence, the provisions of Sec. 436 Cr. P. C. are no more applicable to his case and the Investigating Officer or the prosecution agency is authorised by law to take appropriate action to arrest the accused if they desire to do so for investigating the case in the light of the medical report, according to which the accused petitioner is charged to have committed non-bailable offence. The law cited by the learned counsel for the petitioner is not applicable to the facts of this case as under both the authorities mentioned above, the question of cancellation arose on the ground that the accused person was found to intimidate, bribe or temper with the prosecution witnesses or was attempting to abscond. My attention has been drawn to the cause of Osman Piroo vs. Emperor (3; in which it was held that when a person accused of bailable offence was released on bail by the Police u/s 496 Cr. P. C. (Code V of 1898) and offence is subsequently developed into non-bailable offence;, it was held that the Magistrate has power under the provisions of Sec. 497 (Code V of 1898) to cancel the bail granted by the Police and remanded the accused to custody.
(3.) I am in respectful agreement with the above view and I hold that the bail granted to the accused petitioner u/s 436 Cr. P. C. has been rightly cancelled. In view of the above discussions, the bail application of the accused petitioner filed u/s 438 Cr. P. C. is dismissed. .;