Ahamed Basheer @ Bachu and Kallada Mohammed v. Sub Inspector of Police, Vidyanagar Police Station, Kasaragod and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935** **Bail Appl..No. 5555 of 2013 ()** **-------------------------------** ## **CRIME NO. 243/2013 OF VIDYA NAGAR POLICE STATION , KASARGOD DIST.** **------------** ## **PETITIONERS/ACCUSED 2 & 3:** **--------------------------** **1. AHAMED BASHEER @ BACHU, AGED 24 YEARS S/O.ABDULLA, RESIDING AT BENDICHAL, NIZAMUDDEEN NAGAR THEKKIL VILLAGE, KASARAGOD TALUK.** **2. KALLADA MOHAMMED,AGED 42 YEARS, S/O.ABDULLA RESIDING AT BENDICHAL, THEKKIL VILLAGE KASARAGOD TALUK.** **BY ADVS.SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENTS/COMPLAINANT & STATE:** **-------------------------------** **1. SUB INSPECTOR OF POLICE** **VIDYANAGAR POLICE STATION, KASARAGOD - 671 121.** **2. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **BY PUBLIC PROSECUTOR SMT.LALIZA T.Y.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.9.2013, THE COURT ON 23.9.2013 PASSED THE FOLLOWING:** ## **VK** ## **S.S.SATHEESACHANDRAN,J.** ## **========================** ## **B.A. No.5555 of 2013 ========================** **Dated, this the 23rd day of September, 2013** ## **ORDER** Petitioners are two among the accused (A2 and A3) in Crime 243/2013 of Vidyanagar Police Station, Kasaragod registered for offences punishable under sections 323 and 324 IPC. Investigation of that crime is now being continued incorporating the offence punishable under section 326 IPC. 2. At the stage when the investigation of crime continued for bailable offences only, petitioners were arrested and released on bail by police on executing bond by them. Now, after adding of a non bailable offence under section 326 IPC in the crime, and investigation continuing as such, they apprehend arrest by B.A.No.5555/2013 2 police is the case put forth for seeking the discretionary relief of pre arrest bail under section 438 of the Code of Criminal Procedure, for short the Code. 3. Petitioners had unsuccessfully moved for getting the above discretionary relief from the Sessions Judge more than once as seen from copies of Orders produced with the petition. Sessions Judge, it is noticed, among other circumstances found force in the objection that petitioners who are involved in two other crimes also, one of them for a grave offence punishable under section 307 IPC with some other offences, are not entitled to the discretionary relief. 4. Learned counsel for petitioners Sri.P.V.Kunhikrishnan pressed into service a solitary ground alone based on a legal matrix for granting petitioners the discretionary relief of pre arrest bail. Learned counsel submitted that once bail has been granted either by police or court to an accused proceeded for a bailable offence, that alone, he cannot be arrested again B.A.No.5555/2013 3 without cancelling the bail granted earlier, that too by orders passed by a Sessions Court or High Court under section 439(2) of the Code. Inviting my attention to section 436 of the Code learned counsel submitted that when bail is granted to a person for a bailable offence by the police or magistrate such person released on bail cannot be rearrested without an order passed by Court of Session or High Court under section 439(2) of the Code. Absence of provision similar to sub section (5) of Section 437 of the Code over cancellation of bail granted under that section in Section 436 of the Code is pressed upon by counsel to contend that without an order revoking the bail under section 439(2) of the Code a person arrested and released on bail under sub section (1) of Section 436 of the Code cannot be rearrested. The words 'under this Chapter' in Section 439(2) of the Code, according to learned counsel, have wide amplitude, and resort to that sub section approaching the court of Session or High Court for revoking the bail granted under sub section (1) of Section 436 B.A.No.5555/2013 4 of the Code, on any justifiable ground thereof, is mandatory for rearrest of a person already released on bail under sub section (1) of Section 436. Learned counsel has relied on **Biju v. State of Kerala (2000(2) KLT 495)** in support of the proposition canvassed as above. 5. The question posed for consideration is whether a person arrested for a bailable offence and released on bail by police can be rearrested without an order passed by a Sessions Court or High Court under section 439(2) of the Code where investigation disclosed commission of a nonbailable offence. He cannot be rearrested without an order under section 439(2) of the Code is the challenge put forth by petitioners to seek the discretionary relief of anticipatory bail. Petitioners arrested earlier when investigation of crime continued for a bailable offence had been released on bail by police, is not at all a circumstance that would come to their assistance in seeking pre arrest bail which is a discretionary relief. Facts and circumstances present in the B.A.No.5555/2013 5 case with other parameters governing the grant of such discretionary relief that alone can be the basis for considering their entitlement to seek such relief. Leaving that aspect apart what is to be noted is that a person suspected or accused of a bailable offence after his arrest and release on bail by police or court does not get insulated from being arrested again in the crime if investigation disclose his complicity for a graver offence which is nonbailable. There is no provision similar to sub section (5) of Section 437 of the Code in section 436 applicable to bailable offence is not a shield protecting rearrest of a person released on bail under sub section (1) of that section when he is proceeded for a nonbailable offence. So far as grant of bail under section 436 of the Code there is no discretion with the police or court, and the person accused of a bailable offence can claim bail under the section as of right. So much so the question of cancellation of an order granting bail under that section similar to sub section (5) of Section 437 of the Code does not arise. Sub B.A.No.5555/2013 6 section (2) of Section 436 of the Code provides that in the event a person fails to comply with the conditions of the bail bond the court may refuse to release him on bail when he appears or is brought in custody on a subsequent occasion in the same case. In the absence of such special circumstance under sub section (2) of Section 436 of the Code indicated above any person accused of bailable offence is having an indefeasible right to be released on bail. However, it has to be noted where a person is arrested by police for a bailable offence his release on bail on bond is for the purpose of his appearance before the court as and when called upon. Such release on bail does not in any way prevent the police from arresting him again in the crime if investigation later discloses his culpability in a non bailable offence. Even if his release on bail when he was accused of a bailable offence was by the court then also no cancellation of his bail by the court is warranted, but, only filing of a report by police before such court informing that the person is proceeded for a B.A.No.5555/2013 7 nonbailable offence also. Where such person already released on bail for a bailable offence is proceeded in the crime for a non bailable offence he becomes disentitled to the liberty granted to him in relation to the minor offence. The law applicable in such a situation has been stated by the Apex Court in **Prahlad Singh Bhati v. N.C.T.** ## **Delhi (AIR 2001 SC 1444)** thus:- **“** 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.” 6. In the present case petitioners(accused) were released on bail by police at a stage when they were accused of a bailable offence. When investigation has revealed that the offence committed by them was an aggravated one, a nonbailable offence, they become disentitled to the liberty granted to them in relation to the minor B.A.No.5555/2013 8 offence. In such a case no orders from the Sessions Court or High court under section 439(2) of the Code is warranted for their arrest by police. Their previous release on bail by police when they were proceeded only for bailable offence would no way shield them from arrest by police if investigation disclose their culpability in a nonbailable offence. Even where a person is granted bail by the court under section 436(1) of the Code, if he is later proceeded for a nonbailable offence in the same crime no cancellation of bail need be applied by investigating officer but only informing the court of inclusion of the aggravated offence for issue of direction to the accused to apply for bail again for the graver offence. No order of cancellation of bail is required or called for. The argument canvassed by counsel that a person arrested and released on bail under section 436(1) of the Code can be rearrested only under an order passed only by Sessions Court or High Court under section 439 (2) of the Code has no merit. The words 'under B.A.No.5555/2013 9 this Chapter' in sub section (2) of Section 439 do not postulate that a person released on bail under section 436(1) of the Code, whether it be by police or court, can be rearrested only by an order of the Sessions Court or High Court. What is provided under that sub section is a plenary power to the High Court or Court of Session for revoking or cancelling bail granted to any person under Chapter XXXIII of the Code for arresting and committing him to custody where circumstances demand such an order to advance the ends of justice. Where no cancellation or revocation of a bail granted in relation to a bailable offence is needed or called for when the person granted bail is proceeded for an aggravated non bailable offence sub section (2) of Section 439 of the Code has no applicability at all. View expressed by this court in **Biju v. State of Kerala (2000(2) KLT 495)** that “when an accused has been released on bail under section 436 of the Code and later a nonbailable offence is added, his bail can be cancelled only under section 439(2) or under section 437(5) Cr.P.C and that too on misuse B.A.No.5555/2013 10 of liberty granted” cannot hold good in the light of judicial pronouncement rendered over that question by the Apex Court in Prahlad Singh Bhati's case referred to above. In a fact situation where a person has been released on bail when proceeded with for a bailable offence alone, adding of aggravated nonbailable offence against him in the crime disentitle him to the liberty granted in respect of the minor offence. In such a case no question of revoking or cancelling the bail granted earlier for the minor bailable offence is called for. 7. Petitioners who are now proceeded for an aggravated offence are disentitled to the liberty granted to them in respect of the minor offence. They have been released by police earlier on executing a bond directing their appearance before court is not a shield preventing their arrest when they are proceeded in the same crime for an aggravated offence. B.A.No.5555/2013 11 On the facts and circumstances presented in the case where there is reason to suspect involvement of petitioners in other crimes also, that too for aggravated offences, as disclosed by the orders passed by Sessions Judge, I find they are not entitled to the discretionary relief of pre arrest bail. Petition is dismissed. Sd/- **S.S.SATHEESACHANDRAN JUDGE** /true copy/ P.S to Judge tpl/-