Court is a place where everyday you get the opportunity to learn new concepts. As a judge or Magistrate we on the previous day prepare ourselves to face the cases listed on next day. But it always happens that how much we prepare ourselves there will always be a situation that will force us to go back and do in depth research. On such question that I encountered was:
“Whether in a case where an accused has been bailed out and in that case, subsequently new cognizable and non-bailable offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody or the police is at liberty to arrest the accused without any order from the court or can accused ask for releasing on bail for subsequent offences without appearing before court?”
This question has arisen time and again before Higher Courts and there are divergent views of different High Courts. On one side, the High Courts have taken the view that for arresting the accused, who is already on bail, in event of addition of new offences, the earlier bail need to be cancelled whereas the other line of opinion is that for new offences accused has to obtain a fresh bail order and the earlier bail order shall not enure to the benefit of the accused.
Hon’ble Rajasthan High Court in Sukhpal v State of Rajasthan[i], held that the legal position is beyond doubt that once an accused is ordered to be released on bail under any of the Sections of Chapter XXXIII of the CrPC 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.
In conformity with Rajasthan High Court’s reasoning Madras High Court in Dhivan v State[ii], observed that simply because a penal provision is added in the case in respect of a serious non-bailable offence, the bail granted earlier shall not automatically stand cancelled and therefore, the police shall not have the power to re-arrest the accused until the bail granted earlier is cancelled by way of a positive order by the appropriate court.
While on the other side Patna High Court in Sita Ram Singh and Anr. v State of Bihar[iii] had considered a case where a bail granted earlier was cancelled by it in view of subsequent development i.e., the offence of Section 307 IPC changed to offence under Section 302 on the death of the victim. In the above context, Patna High Court relying on judgment of Hon’ble Supreme Court in Prahlad Singh Bhati v NCT, Delhi and Another[iv] held that on a serious change in the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach of the Court concerned would be to apply its mind afresh as to whether the accused is entitled for grant of bail, in the changed circumstances. In Prahlad Singh Bhati case initially an FIR was registered under Sections 306 and 498A of IPC. But subsequently charge sheet showed that accused has committed offence under Section 302, 406 and 498A of IPC. Hon’ble Supreme Court stated that, with the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.
Allahabad High Court in Bijendra and Ors. v State of U.P. and Ors.[v], held that there is bar on this Court to direct the Magistrate to accept fresh bail bonds for the newly added offence triable by Court of Session’s. It can’t direct Magistrate to accept fresh bail bonds without the accused surrendering before the court as this direction will amount to asking the Magistrate to do something de-hors the law. Section 437 CrPC relates to bail in non- bailable offences, therefore, on addition of a new offence, the accused is required to appear before the court and seek bail for the added offence. His bail cannot be considered unless and until he surrenders and is in custody for that newly added offence. Any accused who is not in custody in an offence cannot be granted bail. Custody is sine qua non for consideration of bail prayer. Consequently when the accused is guilty of an added offence and is not on bail, he cannot be allowed to furnish bond without being in custody in that offence.
It has to be noted that Hon’ble Apex Courtsubsequently in Hamida v Rashid alias Rasheed and Ors.[vi], ruled that an accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences. It is, thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not enure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest.
When Bail can be cancelled
The cancellation of bail is to be dealt on a different footing in comparison to a proceeding for grant of bail. It is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail. Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conductive to fair trial, making it necessary to cancel the bail. Hon’ble Apex Court in Daulat Ram and Others v State of Haryana[vii]observed that:
“Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.
Some grounds (which are not exhaustive) that can be culled out from above judgement are:
- Interference or attempt to interfere with the due course of administration of Justice
- Evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.
- The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail.
- However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
More recently by a 3 judge Bench of Hon’ble Apex Court in X v State of Telegana and Another[viii] explained what is meant by Supervening circumstances. By it Hon’ble Court meant that it must be of such a nature as to lead to the conclusion that the accused does not deserve to be at liberty either by reason of a violation of the conditions of bail or due to supervening conduct which bears upon the misuse of liberty by the accused. In addition to the caveat illustrated in the cited decision(s), bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. The addition of serious offences is one of such circumstances, under which the Court can/may direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted.
Whether Cancellation of Bail is Necessary to once again Arrest or Commit the Accused?
Another issue which arises now is whether after addition of new non-bailable offence, police authority can straightaway arrest the accused, who is already granted bail by the Court, in reference to offences prior to addition of new offences or the police is to necessarily obtain an order from the Court either of cancellation of the bail or permission to arrest the accused in changed circumstances.
For this we need to refer to relevant provisions of the CrPC regarding grant of bail. In Chapter XXXIII of The Code of Criminal Procedure, Sections 436 to 439 deals with bail. Section 437 deals with the provision when bail can be taken in case of non-bailable offence. Section 437(5), which is relevant for the present issue is as follows:-
“(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.”
Section 439 deals with special powers of High Court or Court of Session regarding bail. Section 439(2) is to the following effect:-
“(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
Both Sections 437(5) and 437(2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power under these provisions. The principles and grounds for cancelling a bail are well settled, but in the present case, we are concerned only with one aspect of the matter, i.e., a case where after accused has been granted the bail, new and serious offences are added in the case. A person against whom serious offences have been added, who is already on bail can very well be directed to be arrested and committed to custody by the Court in exercise of power under Section 437(5) and 439(2).
Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course of the action, which can be adopted while exercising power under Section 437(5) and 439(2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest of such accused who has already been granted bail must necessary cancel his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-cognizable offences. The remedy left with the accused in such cases is liberty to apply for bail for the offences for which he was charged before proper Court in accordance with law. So accused could apply for bail afresh after the offence had been converted from a minor to a major offence or some new non-bailable offences are added subsequently. For that accused needs to surrender as the bail application could be entertained and heard only if the accused were in custody. The reason behind this is court have to once again examine the merits of the case, as it stood after conversion of the offence or addition of the offence.
Hon’ble Apex Court in Manoj Suresh Jadhav & Ors. v State of Maharashtra held, it may be true that by mere addition of an offence in a criminal case, in which accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the Court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including 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. Section 437(5) and 439(2) cannot be read into restricted manner that order for arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail.
Conclusion
In view of the foregoing discussions, we arrive at following conclusions in respect of circumstances where after grant of bail to an accused, further cognizable and non-bailable offences are added[ix]:-
(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. (To apply for bail accused needs to surrender because without being in custody there can’t be any bail, as bail is granted to release a person from custody)
(ii) The investigating agency can seek order from the court under Section 437(5) and 439(2) for arrest of the accused and his custody.
(iii) The Court, in exercise of power under Section 437(5) and 439(2) can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) and 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.
(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.
(v) One thing that needs to be remembered is that when a person has been granted bail under Section 436, his bail can’t be cancelled following the procedure of Sect. 437(5) as it provides for the cancellation of bail in non-bailable offences and Section 436 provides for the bail in bailable offences.
[i] 1988 (1) RLW 283
[ii] (2010) 2 MWN (Cr.)
[iii] 2002 (2) BLJR 859
[iv] (2001) 4 SCC 280
[v] (2006) CriLJ 2253
[vi] (2008) 1 SCC 474
[vii] (1995) 1 SCC 349
[viii] (2018) 16 SCC 511
[ix] Pradeep Ram vs State of Jharkhand, Criminal Appeal Nos. 816-17 of 2019