AHAMED BASHEER @ BACHU Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) Petitioners are two among the accused (A-2 and A-3) 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. 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 nonbailable offence under Section 326 IPC in the crime, and investigation continuing as such, they apprehend arrest by 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.

(2.) 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.

(3.) 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 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 of the Code, on any justifiable ground thereof, is mandatory for re-arrest of a person already released on bail under sub-section (1) of Section 436. Learned counsel has relied on Biju v. State of Kerala, 2001 AIR(SC) 1444 in support of the proposition canvassed as above.