Accused On Bail In Case With Bailable Offences Can Seek Anticipatory Bail On Addition Of Non-Bailable Offences: Kerala High Court

The Kerala High Court, while considering the process to be followed when an accused is granted bail for a crime that initially involved only bailable offences, held that the accused can seek anticipatory bail under Section 438 of the Code of Criminal Procedure after the addition of non-bailable offences. 

A single bench of Justice A. Badharudeen was hearing an anticipatory bail application where initially the offences registered against the petitioners were bailable, but subsequently Section 307 (Attempt to Murder) of the Indian Penal Code, was added.

The court relied on the judgment of the Supreme Court in Pradeep Ram v. State of Jharkhand [AIR 2019 SC 3193].

According to Pradeep Ram, in a case where after granting of bail to an accused, further cognizable and non-bailable offences are added:

(i) 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 be arrested.

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

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C, 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.

(iv) 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.

Justice Badharudeen observed that in Pradeep Ram the impact of Section 438 of Cr.P.C was not considered. The court clarified that an accused who has been granted bail, when initially non-bailable offences were alleged, has two options.

"The first option is to follow the procedure laid down by the Apex Court in Pradeep Ram's case (supra). The second option is to invoke the relief of pre-arrest bail under Section 438 of Cr.P.C. In such cases also, the Sessions Court and this Court can consider the plea of anticipatory bail. No doubt, the prosecution also can follow the procedure laid in Pradeep Ram's case (supra)," said the court.

The counsel for the petitioner submitted that at the time of registering the FIR, only bailable offences were alleged and hence the accused persons were released on bail. Since, later on the offence under Section 307 of IPC was alleged, the petitioners now have the right to approach the court under Section 438 of Cr.P.C for anticipatory bail, the petitioners argued.

However, the Public Prosecutor opposed bail on the ground that Section 307 was later added based on the material collected during investigation and hence the police has the right to arrest, interrogate and recover weapons from the petitioners as the newly incorporated alleged offence is non bailable.

The accused were initially accused of offences under Section 341, 323, 325 and 294(b) read with Section 34 of the IPC and a crime was registered. However, Section 307 of IPC was incorporated on the allegation that the assault was carried out with the intention to murder the defacto complainant. Section 307 was added based on statements of the defacto complainant, the doctor and other witnesses and the medical records of the hospital that showed that the victim had sustained serious injuries.

The court observed that going by the medical records and the statements of the doctor a prima facie case for Section 307 had been made out.

Denying anticipatory bail to the petitioners, the court remarked that the “arrest, custodial interrogation and recovery of the weapons at the instance of the petitioner are absolutely necessary to achieve effective and fair investigation and eventful prosecution”.

The court however also said the petitioners were free to approach the relevant jurisdictional court for bail as per the ratio in Pradeep Ram's case.

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Case Title: Pradeep and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 107

Click here to read/download judgment