Kalia alias Saroj Praharaj vs State of Orissa

R.K. Dash, J.—In this application for bail the sole question arises for consideration is whether the accused who has since been admitted to bail for having committed a bailable offence could be put behind the bar if subsequently the offence turns to be non-bailable one.

It is borne out from the application for bail that for an incident alleged to have occurred on 2.2.98 an F.I.R. was lodged against the Petitioner which was registered under Sections 341,324 and 294 read with Section 34, Indian Penal Code. The offences being bailable, the Petitioner was admitted to bail by the court of the first instance. But since the injured succumbed to injuries some days after and the case turned to be one u/s 302, Indian Penal Code, charge-sheet was accordingly laid under Sections 341,294 and 302 read with Section 34, Indian Penal Code. In the changed circumstance, the learned court below cancelled the bail and remanded the Petitioner to custody. After commitment, the Petitioner move the learned Additional Sessions Judge, Rourkela, in sei sin of the case for bail and the said prayer having been rejected, he moved this Court by filing the present application.

In course of hearing either side could not cite any judicial pronouncement on the question whether the court of the first instance admitting a person accused of bailable offence to bail can it self cancel the bail if subsequently the case turns to be non-bailable one. Provisions as to bail and bail bonds are provided in Chapter XXXIII in the Code of Criminal Procedure, 1973 (for short, ''1973 Code''). The relevant sections, necessary for the purpose, are Sections 436, 438 and 439. Section 436 relates to bailable offences, whereas Sections 437 and 439 relate to non-bailable offences and so far as Section 438 is concerned it is a new provision embodied in 1973 code regarding grant of bail to a person apprehending arrest - popularly known as ''anticipatory bail''. It would appear form Sections 437(5) and 439(2) that a person admitted to bail can be arrested and committed to custody. The former provision provides for exercise of such power by the Court which has admitted a person to bail, whereas the latter envisages that the said power can only be exercised either by the High Court or the Court of Session.

It is needless to refer to the settled position of law as decided by the Apex Court and this Court as to under what circumstances bail once granted to an accused can be cancelled in exercise of power either u/s 437(5) or 439(2) of 1973 Code. Once the accused against whom a case has been registered for commission of a non-billable offence is released on bail, he cannot be rearrested if the case is converted to a serious offence that provides severe punishment. In this context it is apposite to refer to a decision of this Court in Prafulla Kumar Nayak v. State of Orissa: (1994) 7 OCR 818. In that case the offence registered against the accused was one u/s 384, Indian Penal Code. He was granted bail by the S.D.J.M., but since charge-sheet was filed u/s 395, Indian Penal Code, his bail was cancelled and he was committed to custody. While setting aside the order of the learned S.D.J.M., the Court observed:

x x x An order of bail either u/s 437 or Section 438 or Section 439, Code of Criminal Procedure remains operative unless it is cancelled under appropriate provisions. Merely because cognizance has been taken of an offence which is exclusively triable by Court of Session or the punishment provided for is higher than the offence relating to which there was earlier accusation and on the basis of which an order of bail was granted, the order of bail does not automatically lapse. x x x

Coming to the case in hand, the offences with which the Petitioner stood prosecuted was initially registered under Sections 441, 324 and 294, Indian Penal Code and the same being bailable learned court below admitted him to bail. But since the case subsequently turned to be one u/s 302, Indian Penal Code, learned S.D.J.M. cancelled his bail. Neither Section 436 nor any other provision of the 1973 Code provides that in such a situation the court of the first instance which granted bail to the accused can cancel the bail and commit him to custody. The only provision that can be resorted to is Section 439(2) under which power is conferred upon the High Court or the Court of Session, but not upon the Court of the first instance.

In view of discussions made above, the order of the learned S.D.J.M. cancelling bail to the present Petitioner being not sustainable in law, the learned Additional Sessions Judge should have released him without going to the merit of the prosecution case. Resultantly the prayer for bail is allowed. The Petitioner be released on his executing bond of Rs. 20,000/- (only Rupees twenty thousand) with one surety for the like amount to the satisfaction of the Additional Sessions Judge, Rourkela, in S.T. Case No. 25/l57 of 1998.

Criminal Misc. Case is disposed of.