Can the police arrest an accused person who has been released on bail if subsequently serious offense is added against them?

  In Pradeep Ram v. State of Jharkhand And Anr. MANU/SC/0881/2019 : (2019) 17 SCC 326 called upon to deal with a situation where an Accused had been bailed out in a criminal case in which new offences were added subsequently and a question arose as to whether it would be necessary to cancel the bail granted earlier for taking the Accused in custody, a Division Bench of this Court took pains to examine the view taken by several High Courts including the High Courts of Rajasthan, Madras, Allahabad and Jammu and Kashmir as also the observations made by this Court in previous decisions on this aspect and held thus:

31. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an Accused, further cognizable and non-bailable offences are added:

31.1. 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.

31.2. The investigating agency can seek order from the court Under Section 437(5) or 439(2) Code of Criminal Procedure for arrest of the Accused and his custody.

31.3[Ed. : Para 31.3 corrected vide Official Letter dated 31-7-2020.]. The court, in exercise of power Under Section 437(5) or 439(2) Code of Criminal Procedure, 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-bailable offences which may not be necessary always with order of cancelling of earlier bail.

31.4. 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 needs to obtain an order to arrest the Accused from the court which had granted the bail. {Para 19}

20. As can be discerned from the observations made in Pradeep Ram (supra), addition of a serious offence can be a circumstance where a Court can direct that the Accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an Accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the Accused by invoking the provisions of 437(5)16 and 439(2)17 Code of Criminal Procedure, falling under Chapter XXXIIII of the Statute that deals with provisions relating to bails and bonds. On such an application being moved, the Court that may have released the Accused on bail or the Appellate Court/superior Court in exercise of special powers conferred on it, can direct a person who has been released on bail earlier, to be arrested and taken into custody.

 IN THE SUPREME COURT OF INDIA

Criminal Appeals No. 822-823 of 2023 

Decided On: 17.03.2023

 X  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: MANU/SC/0264/2023.

Read full Judgment here :Click here

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Is the court required to hear the victim in a bail application if the accused is prosecuted for an offense punishable with imprisonment for more than seven years?

 Another reason that has weighed with this Court for interfering in the impugned orders is that despite the Appellant/prosecutrix having filed an application for intervention in the petition for anticipatory bail moved by the Respondent No. 2/Accused before the High Court, she was not afforded a hearing. At least a perusal of the second impugned order does not reflect the said position. No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the Appellant. {Para 23}

24. Our view is in line with the observations made by a three-Judges Bench of this Court in Jagjeet Singh And Others v. Ashish Mishra Alias Monu and Anr. MANU/SC/0491/2022 : (2022) 9 SCC 321 wherein speaking for the Bench, Justice Suryakant made the following pertinent observations relating to the victim's right to be heard and alluding to the recommendations made by the Law Commission of India in its 154th Report that highlighted "the right of the victim or his/her legal representative to be impleaded as a party in every criminal proceedings where the charges are punishable with 7 years' imprisonment or more", observed thus:

19. It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State's expense. The victim's right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. 

25. However, when a similar application for intervention was moved by the Appellant/prosecutrix before the High Court in the anticipatory bail application moved by the Respondent No. 2/Accused, it appears that heed was not paid to the pleas taken by her though her counsel's presence does find mention in the order sheet. We are constrained to note that such an approach tantamounts to failure to recognize the right of the prosecutrix to participate in the criminal proceedings that would include a right to oppose the application for anticipatory bail moved by the Accused. The Appellant/prosecutrix having been denied a meaningful hearing when the first impugned order of anticipatory bail granted in favour of the Respondent No. 2/Accused was confirmed by the second impugned order, is an additional factor that has prevailed with this Court to interfere in the impugned orders.

 IN THE SUPREME COURT OF INDIA

Criminal Appeals No. 822-823 of 2023 

Decided On: 17.03.2023

 X  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: MANU/SC/0264/2023.

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Under which circumstances court can hear the accused in an inquiry under S 340 of CRPC?

 In para 12 of the Judgment in Pritish's case, their Lordships stated as under:-

"12. thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged."

Their Lordships, therefore, held that there is no statutory requirement to give an opportunity of

hearing to the persons against whom that court might file a complaint before the magistrate for

initiating prosecution proceedings.

5. In the instant case as the party complained against was available before the court and the said party made an application that he should be heard before any inquiry is undertaken under Section 340 of Cr.P.C., the learned Judge has exercised his discretion of granting an opportunity to the

defendant for being heard in the inquiry and this by itself cannot be termed as perverse or patently illegal order and in any case the anxiety of the petitioner-plaintiff should be to get the inquiry

expedited rather than keeping this petition pending before this court.

6. Hence, the petition is rejected summarily and it is directed that the inquiry under Section 340 of

Cr.P.C. be completed as expeditiously as possible and preferably within a period of three months.

BOMBAY HIGH COURT

VARSHA RUBIN T. ZAVERI  Vs. PANNALAL KHIMJI CHHEDA 

( Before : Marlepalle B.H., J. )

Criminal Writ Petition No. 578 Of 2007

Decided on : 02-07-2007

(2007) 2 BomCR(Cri) 613

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Whether court can give hearing to accused against whom court might file complaint U/S 340 of CRPC?

When I was going through the reliefs sought by the Applicant, I noted that the Applicant has in prayer clause (iv) prayed that this Court be pleased to: “commit the Respondent Nos. 1 to 3 to custody in view of Section 340(1)(d) of the Cr.PC as the Respondents have produced fabricated death certificate and false nomination, false share transfer form, false resolution and false intimation letter and misguided the Court by further making misleading averments in the petition which are false and frivolous as the offences are non-bailable one”. I therefore enquired from Mr. Nilesh Ojha, Advocate for the Plaintiff, whether notice has been issued to the Respondents. Mr. Ojha submitted that the Respondents cannot be heard at this stage as held by the Hon'ble Supreme Court in the case of Pritish v. State of Maharashtra (supra) and by the Single Judge of this Court in the case of Union of India v. Haresh Milani (supra). Though I subsequently was of the view, that the Respondents are not required to be heard in the matter, I would like to clarify that what is held in the above decisions is that there is no statutory requirement/mandate to afford an opportunity of hearing to the persons against whom the court might file a complaint, and therefore the Respondents in a case of Section 340 are not required to be heard as a matter of right. However, it cannot be disputed that if the Court feels the need to hear the Respondent in an Application under Section 340 Cr.P.C., the Court is not precluded from doing so, and therefore the submission of Mr. Ojha, that the Respondent cannot be heard at this stage is not accepted.

In the High Court of Bombay

Civil Appellate Jurisdiction

(Before S.J. Kathawalla, J.)

Satyanarayan Nandkishore Pande v. Vinay Jagdishchandra Pande, 

Civil Application No. 482 of 2018

In

Writ Petition No. 721 of 2016

Decided on December 22, 2018,

Citation: 2018 SCC OnLine Bom 7271 : (2019) 1 AIR Bom R 722,2019(4) MHLJ 405

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What is 'useless formality theory'?

To recapitulate the events, the appellant was accorded certain
benefits under Notification dated July 08, 1999. This Notification
stands nullified by Section 154 of the Act of 2003, which has been
given retrospective effect. The legal consequence of the
aforesaid statutory provision is that the amount with which the
appellant was benefitted under the aforesaid Notification becomes
refundable. Even after the notice is issued, the appellant cannot
take any plea to retain the said amount on any ground
whatsoever as it is bound by the dicta in R.C. Tobacco (supra).
Likewise, even the officer who passed the order has no choice but
to follow the dicta in R.C. Tobacco (supra). It is important to note
that as far as quantification of the amount is concerned, it is not

disputed at all. In such a situation, issuance of notice would be
an empty formality and we are of the firm opinion that the case
stands covered by 'useless formality theory'.
 In Escorts Farms Ltd. (Previously known as M/s. Escorts
Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division,
Nainital, U.P. & Ors.24, this Court, while reiterating the position
that rules of natural justice are to be followed for doing substantial
justice, held that, at the same time, it would be of no use if it
amounts to completing a mere ritual of hearing without possibility
of any change in the decision of the case on merits. It was so
explained in the following terms:
“64. Right of hearing to a necessary party is a
valuable right. Denial of such right is serious
breach of statutory procedure prescribed and
violation of rules of natural justice. In these
appeals preferred by the holder of lands and some
other transferees, we have found that the terms of
government grant did not permit transfers of land
without permission of the State as grantor.
Remand of cases of a group of transferees who
were not heard, would, therefore, be of no legal
consequence, more so, when on this legal question
all affected parties have got full opportunity of
hearing before the High Court and in this appeal
before this Court. Rules of natural justice are to be
followed for doing substantial justice and not for
completing a mere ritual of hearing without
possibility of any change in the decision of the case
on merits. In view of the legal position explained
by us above, we, therefore, refrain from remanding
these cases in exercise of our discretionary powers
under Article 136 of the Constitution of India.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 4458-4459 OF 2015
(ARISING OUT OF SLP (C) NOS. 37108-37109 OF 2012)
M/S. DHARAMPAL SATYAPAL LTD. .....APPELLANT(S)
VERSUS
DEPUTY COMMISSIONER OF CENTRAL
EXCISE, GAUHATI & ORS.
.....RESPONDENT(S)
Citation;(2015) 8 SCC519

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