Bombay High Court: Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand, (2019) 17 SCC 326 wherein it was held:
“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”
In the instant case, the petitioner was accused in an FIR registered under Sections 304(A), 279, 337, 338 and 427 of Penal Code, 1860 read with 184, 134(A)(B) of the Motor Vehicles Act, 1988.
The above said offences were bailable and hence the petitioner was released on bail under Section 436 of the Code of Criminal Procedure, 1973 by the Judicial Magistrate.
Later, the respondent-State sought for the addition of offence under Section 304-II of the IPC and Section 65(A) of the Prohibition Act. The said offence was non-bailable and triable by the Sessions Court. Thereafter the respondent moved an application for cancellation of bail earlier granted to the petitioner. The Judicial Magistrate declined such application but directed the petitioner to surrender before the Court within ten days and apply for bail for the newly added cognizable and non-bailable offences.
Petitioner approached the High Court contending that the prosecution could not have filed an application under Section 437(5) CrPC and further that the Judicial Magistrate had no jurisdiction to entertain the application since the petitioner was granted bail under Section 436 CrPC.
Hence, the contention was that since the petitioner had been granted bail under Section 436, the application under Section 437(5) was not maintainable. It was further contended that since the petitioner was granted bail under Section 436, the Judicial Magistrate had not acquired jurisdiction under Section 437(5) to entertain the application and, therefore, the impugned order directing the petitioner to surrender before the Court within ten days and apply for the bail in newly added cognizable offence was without jurisdiction.
Analysis, Law and Decision
High Court expressed that the petitioner was right in contending that, since the petitioner had been granted bail under Section 436 CrPC, prosecution could not have moved an application under Section 437(5) of the CrPC.
However, in facts of the case, the Judicial Magistrate did not actually exercise jurisdiction under Section 437(5), but by relying on the judgment of the Supreme Court in the case of Pradip Ram (Supra) suggested the petitioner to apply for bail in the newly added cognizable and non-bailable offence. Obviously, condition (2) of the operative order was based on the judgment of the Supreme Court in the Case of Pradip Ram (Supra) wherein the Supreme Court has summarised the law in paragraph 31 relating to the issue in question. Therefore, directions contained in Clause (2) of the operative order could not be faulted with.
Further, in so far as Clause (3) of the operative order was concerned, the permission to arrest was granted pursuant to a subsequent application/intimation and not in the application preferred by the prosecution seeking cancellation of petitioner’s bail.
In view of the above, petition was dismissed and disposed of. [Rohan Suni Abbott v. State of Maharashtra, 2021 SCC OnLine Bom 3912, decided on 15-11-2021]
