Learned counsel for the petitioner submits that after the petitioner was granted bail, on the basis of the Review Medical Board, the police added
offences under Sections 324, 325 and 326 of IPC and on account of adding offenses, which are non-bailable, the petitioner's bail was cancelled by the
Court below vide order dated 07.09.2020.
Learned counsel for the petitioner has relied upon the judgment passed by this Court dt. 03.03.2009 wherein this Court has held that after granting of
bail, cancellation of bail can only be for the reasons as laid down under Section 439 (2) Cr.P.C.
Learned counsel appearing for the petitioner further points out that cross FIRs have been registered by both the brothers under Sections 323 and 354
of IPC on account of dispute which arose between the parties.
Per contra, learned counsel appearing for the complainant submits that the petitioner ought to get himself bailed out by moving regular bail application.
Learned Public Prosecutor has pointed out that once a person has been bailed out, the consideration and criteria for cancellation of bail are different
from those for granting of bail.
I have considered the submission. In Gurbaksh Singh Sibbia versus State of Punjab (supra), the Supreme Court was considering the conditions for
grant of bail and cancellation and has laid down that there cannot be a general rule relating to it, however, discretion has to be exercised by the court
judiciously and according to facts of the case.
In Aslam Babalal Desai Vs. State of Maharashtra (supra), considerations for cancellation of bail were considered and it was observed as under:-
14. We sum up as under:
The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a persons' liberty has been interfered with by
the police arresting him without a court's order or a warrant, the investigation must be carried out with utmost urgency and completed within the
maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way
of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show
a sense of urgency in the investigation of the case and omits or defaults to file a charge sheet within the time prescribed, the accused would be entitled
to be released on bail and the order passed to that effect under Section 167(2) would be an order under Sections 437(1) or (2) or 439(1) of the Code.
Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code.
The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code.
The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the
background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has
subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very
purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is
released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons
for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant's case to the extent it is
inconsistent herewith does not, with respect, state the law correctly.
15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision
must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of
the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not
take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is
asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are,
therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of
the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen
on account of certain observations in Rajnikant's case our endeavour is to clear the same and set the controversy at rest.
In view thereof, this Court is of the firm view that only on account of addition of certain offences of IPC by the Investigating Agency during the
investigation, bail granted to the accused cannot be cancelled under Section 439 (2) Cr.P.C. at the instance of the investigating agency who has added
other non-bailable offenses. A person who is on bail can always be summoned for the purpose of investigation and also be asked to cooperate the
investigation. It is only when an accused, who may be bailed out, does not participate in the investigation or refuses to cooperate, that a ground may
arise for cancellation, which of course would be to the satisfaction of the concerned court for cancellation of his bail.
In view thereof, the order passed by the learned Additional Sessions Judge No.2 Behror, Alwar dt. 07.09.2020 under Section 439 (2) cancelling the
bail is set aside.
The petition is accordingly allowed.
