Whether after addition of new non-bailable offence,

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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 are questions where different views have been expressed by different High Courts.

In the present case, the appellant was not arrested by the police after the addition of offences under the Unlawful Activities (Prevention) Act. 1967, rather the police authorities had made an application before the Court for the issue of production warrant since the accused was already in custody in a jail in reference to another case.

Both Sections 437(5) and 439(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 the exercise of power under Sections 437(5) and 439(2). 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 the accused has been granted 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 the exercise of powers under Sections 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 Sections 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 the custody. The addition of the serious offences is one of such circumstances, under which the Court can 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.

We may have again to look into provisions of Sections 437(5) and 439(2) of Cr.P.C. Sub-section (5) of Section 437 of Cr. P.C uses the expression ‘if it considers it necessary so to do, direct that such person be arrested and commit him to custody. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: ‘may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing the arrest of such accused who has already been granted bail must necessarily cancel his earlier bail.

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 maybe with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai Patel (supra) uses the word ‘ordinarily’ in paragraph 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable offences.

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