An Accused on Bail Cannot Be Arrested on Addition Of New Offences Without Order of The Court Which Granted Bail: SC

“The Court 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.”

The Supreme Court has held that, in a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences needs to obtain an order to arrest the accused from the Court which had granted the bail.

The bench comprising Justice Ashok Bhushan and Justice KM Joseph were considering a an appeal against Jharkhand High Court judgment in which the issue arose was whether in a case where an accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody?

The court held that 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.

Referring to some earlier judgments, the bench made the following conclusions:

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.

The investigating agency can seek order from the court under Section 437(5) or 439(2) of CrPC for arrest of the accused and his custody.

The Court, in exercise of power under Section 437(5) or 439(2) of Cr.PC. 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) as well as Section 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.

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.

Remand After Taking Cognizance: 167(2) or 309(2) CrPC?

Another issue considered by the bench was whether the power under Section 167 Cr.PC. can be exercised when the cognizance has already been taken by the Court or the accused could have been remanded only under Section 309(2) Cr.PC.

The bench summarized the legal position as follows:

  • The accused can be remanded under Section 167(2) Cr.P.C during investigation till cognizance has not been taken by the Court.
  • That even after taking cognizance when an accused is subsequently arrested during further investigation, the accused can be remanded under Section 167(2) Cr.P.C.
  • When cognizance has been taken and the accused was in custody at the time of taking cognizance or when inquiry or trial was being held in respect of him, he can be remanded to judicial custody only under Section 309(2) Cr.P.C.

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