VIJAY KUMAR VYAS,J. - (1.) Learned counsel for the appellants submits that in the instant matter, police after investigation submitted charge sheet against the appellants for offences under section 302 and 212 IPC only and mentioned that charge against the appellants are only of harbouring the offender, a bailable offence, therefore after investigation, both the appellants were bailed out by Investigating Officer under section 436 Cr.P.C., 1973 Learned counsel further submits that while taking cognizance by order dated 9.6.2017, learned Special Judge, Scheduled Castes and Scheduled Tribe Act Cases, Ajmer observed that as the offence was committed with a person of scheduled caste, therefore, offence under section 3(2)(vi) of the SC and ST (Prevention of Atrocities), Act is also attracted and without considering the fact that the appellants are already bailed out and their bail bonds have not been cancelled as per law, took cognizance for the said offence against them and summoned them through warrant of arrest. Despite, learned Special Judge, SC and ST (Prevention of Atrocities) Act Cases, dismissed the application of the appellants submitted under section 438 Cr.P.C., 1973 by impugned order dated 24.6.2017. I have heard learned Public Prosecutor as well and gone through the material available on record.
(2.) It is trite law that once an accused is bailed out whether under section 436 or under section 437 Cr.P.C., 1973 unless the order of bail and bail bonds are cancelled by a competent authority in accordance with law, the same accused cannot be re-arrested for the same offence as it would be a double jeopardy with the person concerned. In the instant matter, it is a fact that the appellants were bailed out during investigation after completing the interrogation, assuming that they had committed a bailable offence. Whether this assumption was proper or not, it is a fact that the they were bailed out under section 436 Cr.P.C., 1973 therefore unless the bail so granted was cancelled as per law, the appellants could not be re-arrested.
(3.) On perusal of the record, it appears that learned Special Judge while ordering the accused to be arrested and brought before him also took cognizance for offence under section 3(2)(vi) of the SC and ST, Act which is non-bailable offence and as per Act of 1989, in such a matter, anticipatory bail is not maintainable. However, since the appellants were on bail, they cannot be re-arrested in the same matter without cancellation of the bail.;