SHIV KIRTI SINGH, J.

(1.) This application under Section 482 of Code of Criminal Procedure has been filed by two petitioners Sitaram Singh and his son Ranjit Singh, who are named accused in Madhepur (Luknour) PS Case No. 178/2000 giving rise to GR Case No. 710/2000 pending before the AddI. Chief Judicial Magistrate. Jhanjharpur. The petitioners have prayed for quashing of an order dated 18.1.2001 passed by the learned Magistrate in the aforesaid case whereby the bail granted to petitioners by order dated 1.9.2000 has been cancelled by the same Magistrate on two grounds.

(2.) According to petitioners, the cancellation of their bail is illegal, improper and unjust because the first ground, that is, subsequent death of the injured and addition of Section 302 of the Indian Penal Code is impermissible in law for cancellation of bail and the other ground, i.e. threatening of witnesses has been accepted without any inquiry and verification.

(3.) Because the matter involved cancellation of bail already granted to the petitioners, hence the matter was heard in details at the admission stage itself. So far as the second ground mentioned in the impugned order to the effect that the accused persons are tampering with evidence, is concerned, there is no controversy that on such a ground, if properly inquired and established, the bail already granted can be cancelled. But on facts there is no difficulty in holding that allegation to this effect has not been inquired properly and learned Magistrate erred in using this as an additional ground for cancellation of petitioners bail. It was rightly pointed out on behalf of the petitioners that in Annexure3, a petition filed by the AddI. P.P. dated 15.9.2000 there is no allegation of tampering and cancellation of petitioners bail was sought only on the ground that the injured had died after about a fortnight and in view of Section 302 of the IPC being attracted, the bail earlier granted in a case then under Section 307, IPC should be cancelled for the ends of justice. No doubt, in a petition for cancellation of bail filed by the informant on 11.9.2000 as contained in Annexure-4, the allegation of threatening of prosecution witnesses was mentioned in paragraph 10 in a general manner without specific particulars but in another petition by the informat dated 14.9.2000 as contained in Annexure-5, some grievance was raised against the police but there was no allegation of tampering. By the order dated 15.9.2000 which is part of Annexure-2, notice was issued to the accused persons as to why their bail be not cancelled and in that order also nothing was mentioned about tampering and the only ground considered for issuance of notice was the fact that subsequently Section 302 of the IPC has been added in the case. It is also not in dispute that with regard to subsequent allegation of threat etc. no inquiry was held and there is no report by the police to support, the allegation of tampering. In such circumstances, it has to be held that petitioners bail should not have been cancelled on the ground of tampering and to that extent the impugned order is unjust and bad in law.

(4.) However, in order to interfere with the impugned order in the interest of justice, the legality and validity of the other ground requires scrutiny. It is this aspect of the controversy between the parties which required hearing at some detail because no clear judicial pronouncement of this Court was cited on the question whether on subsequent developments which make the original offence graver, a bail earlier granted can be cancelled.

(5.) Before examining the aforesaid legal question, the relevant facts may be noticed in brief. The criminal case in question was lodged on 24.8.2000 on the basis of statement of brother of the injuredf to the effect that on 23.8.2000 at 6.30 p.m. the injured, Gunanand Jha, was sitting at his Drawaza. At that time petitioner, Sitaram Singh and his son petitioner. Ranjit Singh who are covillagers, brought a Nad and kept on the land in front of informants Darwaza. The injured felt that the accused persons had encroached upon his land and made a protest. On that, allegedly Sitaram Singh ordered to assault and his son Ranjit Singh used a piece of wood (Mungari) to assault the injured Gunanand Jha on his mouth. The injured fell down and became unconscious. Allegedly the assault was made with the intention to kill and when the injured fell down unconscious then both the accused fled to their house. The aforesaid case was initially instituted under Section 307 and other allied sections of the IPC but in course of investigation the injured died on 6.9.2000. On, 11.9.2000, the investigation Officer prayed and got Section 302, IPC added in the aforesaid police case. But before that the petitioners had surrendered and had been granted regular bail on 1.9.2000 passed by the learned ACJM, Jhajharpur. A perusal of the said order dated 1.9.2000 shows that at that stage the Magistrate was of the view that no case under Section 307, IPC was made out against the petitioners. After the death of the injured and on addition of Section 302 of the IPC to the offence alleged against the petitioners, the prosecuting agency of the State as well as the informant applied for cancellation of bail of the petitioners which led to the impugned order in which the main discussion is on the question whether bail can be cancelled in view of subsequent development according to which now the petitioners are facing a case under Section 302 of the IPC.

(6.) In the present case, the learned Magistrate had granted bail to the petitioners under Section 437 of the Code of Criminal Procedure (Cr.P.C.) and hence, it is sub-section (5) of Section 437 which is relevantbecause it is under this provision that any court which has released a person under subsection (1) or sub- section (2), may if it considers it necessary so to do director such person be arrested and commit him to custody. It is not in dispute that the scope of Section 437(5) and Section 439(2) of Cr.P.C. are similar in nature, the latter being special powers of High Court and Court of Sessions regarding cancellation of bail. It is also well established in law that grant of bail is a matter of judicial discretion dependent upon a large number of factors including gravity of the alleged offence whereas cancellation of bail is treated on a entirely different footing and for cancellation by consistent judicial pronouncements certain guidelines have been laid down as would appear from the judgments of the Supreme Court in the case of Aslambabalal Desai v. State of Maharashtra, and in the case of Dolat Ram v. State of Haryana, upon which the petitioners have placed strong reliance to submit that subsequent development making the offence graver is not accepted to be a valid ground for cancellation of bail. Petitioners have also placed reliance upon a judciment of Rajasthan Hicih Court in the case of Gheesva and Ors. v. State of Rajasthan.

(7.) On the other hand on behalf of informant reliance was placed upon the two judgments of the Supreme Court cited on behalf of the petitioners and noticed above as well as on following judgments of the Supreme Court. Gurucharan Singh v. State and (ii) Delhi Administration v. Sanjay Gandhi, to submit that although misuse by absconding or by tampering are the most well accepted grounds for cancellation of bail but these grounds are illustrative and not exhaustive. It was further pointed out on behalf of the informant on the basis of aforesaid judgments, that no doubt, in the matter of cancellation of bail the courts are required to act with care and circumspection but for good reasons cancellation of bail can be justified on other grounds also.

(8.) In the case of Aslambabalal Desai (supra), it was clearly stated in paragraph 11 that the seven grounds enumerated by the Apex Court are illustrative and not exhaustive. A note of caution was, however, added to the effect that cancellation of bail is a harsh order which interferes with the liberty of the individual and hence, it must not be lightly resorted to. In the case of Dolat Ram the Supreme Court in paragraph 4 of the judgment reiterated that very Cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. The Court once again cited certain permissible grounds but highlighted that the grounds were illustrative and not exhaustive. It was further observed in following words However, bail once granted Should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The aforesaid observation clearly permits cancellation of bail on account of supervening circumstances but only in those cases where it can be held that fair trial is no longer probable unless the concession of bail is taken back from the accused. In the case of Gheesya the learned Judge of the Rajasthan High Court held that cancellation of bail should not be merely on the ground that a graver offence is found to have been committed as a result of the investigation, but there should be something more or different such as that the accused is likely to abscond or to tamper with the evidence or he is misusing his liberty etc.

(9.) The other two judgments relied upon by the learned Counsel for the informant are on the same lines as the other judgments of the Apex Court noticed above. On the basis of said judgments it clearly emerges as a proposition of law, that power under Secti 2) of Cr. P.C. can be exercised for cancellation of bail already granted even on ground other than those enumerated as illustrative grounds. The court concerned, however, has to act with care and circumspection and cancellation of bail will be justified only if it is found reasonably necessary for fair trial of the case. Supervening circumstance such as a finding during investigation that a graver offence appears to have been committed than what was alleged at the time of grant of bail can furnish a good ground to initiate the process for consideration by the court concerned as to whether the bail already granted should be cancelled or not but actual order of cancellation must be passed after exercising due care and caution. Cancellation may be justified where there are circumstances and materials to satisfy the court that in view of much serious case facing made out there is distinct possibility of the accused absconding from the proceedings in future.

(10.) On behalf of the informant reliance has been placed upon the following judgments of different courts (i) (Osman Piroo v. Emperor. (ii) (Kalyan Singh v. State of M.O.) and (iii) (Kalyan v. State of U.P., to submit that in case significant change is found in the gravity of the alleged offence due to subsequent facts coming to light during investigation then the bail already granted for a non- serious or bailable offence may be justifiably cancelled. The aforesaid judgments though passed in slightly different factual circumstances do support the submission advanced by learned Counsel for the informant and the view recorded by this Court earlier in the preceding paragraph.

(11.) The last judgment relied upon by the learned Counsel for the informant is a recent judgment by the Supreme Court in the case of Prahlad Singh Bhati v. N.C.T. Delhi. In this case the Supreme Court was considering a prayer for cancellation of bail granted to the accused of a case that was initially lodged under Sections 306 and 498-A of the IPC but after investigation chargesheet was submitted under Section 302 of the IPC, yet the accused was allowed bail under Section 302, IPC because on the earlier allegations he had been allowed anticipatory bail. The Apex court found the approach of the Magistrate and of the High Court erroneous. The bail earlier granted to the accused was cancelled in view of seriousness of the offence but the accused was permitted to apply for regular bail in the trial Court which was directed to dispose it on merits keeping in view the law explained by the court. In the said judgment, in paragraph 9 the Apex Court formulated the law in the following words: In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way relevant for the purposes of deciding the application for bail in a Case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498-A, 306 and 406, IPC. The Magistrate committed an irregularity by holding that I do not agree with the submission made by the learned Prosecutor inasmuch as if we go by his submissions then the accused, would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law. With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondentaccused the grant of bail the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail. TI

(12.) The aforesaid judgment clearly holds that on a serious change in the nature of the offence the accused becomes, disentitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach for the, court concerned would be to apply its mind afresh as to whether the accused is entitled for grant of bail, in the changed circumstances. If the court finds that the accused is still entitled for bail keeping his past conduct etc. in mind, the prayer for cancellation can be rejected otherwise the bail granted for the minor offence may justifiably be cancelled and the accused be taken in custody.

(13.) In view of aforesaid legal position this court finds that the learned ACJM acted in a mechanical manner in cancelling the bail of the petitioners only on ground of subsequent addition of Section 302 of the IPC without further considering whether, even in the altered situation the petitioners deserve to be granted bailor not. As held earlier the ground of tampering was improperly applied for cancellation of petitioners bail. For all these reasons, this Court finds the impugned order dated 18.1.2001 fit to be quashed. It is therefore, quashed but the interest of justice further requires that the matter be remitted back to the learned Magistrate for reconsidering the applications for cancellation of bail of both the petitioners in accordance with law and the observations noticed in this judgment. Interest of justice also warrants pointing out that for bail on merits the case of two petitioners may stand on different footings and this aspect should also be kept in mind by the learned Magistrate while reconsidering the matter as per law.

(14.) With these observations, this application is allowed in the manner and to the extent indicated above. Petition allowed.