M. B. SHARMA, J. - (1.) THIS order will dispose of two bail applications one is S. B. Cr. Misc. Bail Application No. 2437 of 1987 Sukhpal Vs. The State of Rajasthan under Sec. 438 Cr. P. C. and other is S. B. Cr. Misc. (Cancellation) bail application No. 2458 of 1987 Sheo Narain Vs. The State of Rajasthan under Sec. 439 (2) Cr. P. C.
(2.) AN F. I. R. was lodged at Police Station, Uniara, District, Tonk, a case under the various sections of the IPC including Section 452 IPC was registered against the accused Sukhpal and Kishore. AN application for pre-arrest bail under S. 438 Cr. P. C. was moved before the learned Sessions Judge, Tonk. The learned Sessions Judge, Tonk, vide his order dated 3. 8. 1987, in bail application No. 164/ 1987, allowed the application and in the event of arrest of the accused persons Kishore and other, they were ordered to be released on bail, by imposing certain conditions which are generally imposed under that Section. It appears that later on during the investigation of the case, an offence under Sections 307 and 459 IPC was also added and accused persons Kishore and others again moved an application for pre-arrest bail, under S. 438 Cr. P. C. before the learned Sessions Judge, Tonk, as they apprehended their arrest under the new sections added during the investigation. The learned Sessions Judge, under his order dated 10th Sept. , 1987, allowed the application for anticipatory bail to the accused persons but declined to grant pre-arrest bail to accused persons namely Kishore and Sukhpal. It may also be stated that an application for cancellation of bail granted to the accused persons under the order of learned Sessions Judge, dated 3rd August, 1987, was filed by Ramkalyan and Ram Gopal. The learned Sessions Judge, under his order dated 8th September, 1987, observed that the earlier order dated 3rd August, 1987, was not applicable to the newly added offence of under Sections 307 and 459 IPC and there-after no question of cancellation of bail allowed earlier arises. The first important question which arises for determination in this case, as to whether if in a case for one or the other non-bailable offence an order under Sec. 438 Cr. P. C. is granted then whether the police can again arrest an accused by adding one more section of the IPC which is not bailable. In my opinion, such power cannot be vested in police because if it is done it will confer power on the police to disobey and disregard, the order of the Court issued under s. 438 Cr. P. C. The provisions in relation to bail are contained in Chapter XXXIII Cr. P. C. and there can be no dispute that even pre-arrest is granted under S. 438 Cr. P. C. vests power in the High Court or the court of Sessions to pass an order of arrest for a person who has been granted bail under Chapter XXXIII and to commit him under custody. Therefore, as and when accused is released on bail under Chapter XXXIII of the Cr. P. C. whether under S 438 Cr. P. C. or 439 of the Cr. P. C. and the wants to arrest him for any reason whatsoever including the reason that, on an investigation a further offence which is non-bailable appear to be made, then it must moved to the Court which granted bail to the accused or to the Court of Sessions and to this Court for cancellation of the order of bail and for a direction that the accused who has been released on bail should be re-arrested and committed to custody. The police has no power to arrest a person who has been released on bail unless as aforesaid an order under sub-section (2) of S. 439 Cr. P. C. is made. Any other view, will confer powers in the police to undo the orders of this Court and to treat the order contemptuously. This Court had the occassion to consider the same matter in the case of Motilal vs. State of Raj. (1 ). The learned Single Judge, imposed a similar question which is under consideration in this case. The learned Single Judge, said as under: - "once a person has been arrested on account of allegations in the first information report simply by adding a new section of non-bailable offence, it does not change the position, nor does it permit the police to re-arrest him. " I am, therefore, of the opinion that the legal position is beyond doubt that once an accused is ordered to be released on bail under any of the Section of Chapter XXXIII of the Cr. P. C. the police had no power to arrest him by merely adding another section which may be non-bailable. The police must seek an order from the Court for cancellation of bail granted to a person. Therefore, in such a case, generally there should no apprehension in the mind of the accused that he may be arrested or re-arrested again in the same F. I. R. Thus, no application under S. 438 Cr. P. C. was maintainable by the accused petitioner and the others and the learned Court should have contended itself by observing that there is already an order under S. 438 Cr. P. C. in the same case and no fresh order is required. As already stated earlier that an application for cancellation of bail granted under order dated 3rd, August, 1987 had already been moved, not by the State, not by the I. O. but by the two persons. It may also be stated that it was not the informant at whose instance the F. I. R. was registered, who had moved for cancellation of bail but it was a witness and a stranger. I have my own reservation of a stranger or a witness has a right to move for cancellation of bail. Generally, the S. H. O. must move for such cancellation and in exceptional cases right may be conferred on the informant but not in a witness. In a case of present nature where so far as two accused petitioners Kishore and Sukhpal, are concerned, to whom the learned Sessions Judge, declined to grant the bail under S. 438 Cr. P. C. and I have already stated that no such second bail-application is maintainable but the question as to whether the discretion of the learned Sessions Judge, either in declining bail to the accused persons or allowing bail to the other person was not properly exercised. So far as accused Kishore, is concerned, it was specifically alleged that he was armed with gandasi and caused injury with it, but there was no medical corroboration so far as the weapon alleged to be used is concerned. Be that as it may, even the injuries on the head were simple in nature. So far as accused petitioner Sukhpal, is concerned, it was alleged that he gave a lathi blows on the legs and the injury caused is simple in nature. Thus, the case of the accused persons other than Kishore and Sukhpal was not distinguishable from the case of these two persons and the learned Sessions Judge, did not take correct view when he allowed the bail to other persons and declined to grant bail to these two persons. There was also a cross F. I. R. and in these circumstances, the learned Sessions Judge, should have treated the accused petitioners at par. It has already been stated earlier that the application under sub-section (2) of S. 439 Cr. P. C. was moved by a witness and the stranger and not by the State or by the informant. The application was supported by some affidavits, but in my opinion, no case for cancellation of bail was made-out. Consequently, the bail application bearing number 2437/1987, under S, 438 Cr. P. C. should have been allowed but as I have taken a view that no case for cancellation of bail granted under the order dated 3. 8. 87, is made-out and no fresh application under S. 438 Cr. P. C. was maintainable merely on the ground that a further offence under Ss. 307 and 459 IPC was added, it is hereby directed that the order dated 3. 8. 1987, will hold good, even if the above named two offences which were later on added during the investigation, more so, when no case for cancellation of bail is made out.
(3.) THE application for bail bearing number S, B. Cr. Misc. Bail Application No. 2458/1987 is dismissed. .;