Not Permissible To Re-Arrest An Accused Who Is In Bail When Police Added A Non-Bailable Offence


A bench of Justice SA Bobde and Justice L Nageswara Rao was considering an SLP filed by the accused, who, though granted bail by the sessions court, was re-arrested as the police added another offence under Section 376 of the Indian Penal Code in the FIR.

Earlier, FIR was registered against the accused of the offences punishable under Sections 509 r/w 34 of the Indian Penal Code and under Sections 12 and 17 of the Prevention of Children from Sexual Offences Act. The Sessions Court, observing that bail in the bailable offence is right of the accused, granted bail to the accused. Later, the police added Section 376 IPC and re-arrested the accused.

The Bombay High Court, as the accused approached it challenging re-arrest, observed: “Having regard to the fact that offence under Section 376 of the IPC has been added for which the maximum punishment is ten years. In our view, the re-arrest of the Petitioners cannot be taken exception to.”

The Supreme Court has observed that it is not permissible to simply re-arrest the accused, by adding another offence, ignoring the bail order in force at that time.

The Supreme Court bench, setting aside the high court order, observed: “It is not permissible for the respondent-State to simply re-arrest the petitioners by ignoring order dated 02.06.2016 passed by the learned Additional Sessions Judge, Pune, which was in force at that time.”

Releasing the accused on bail, the bench said the state is at liberty to apply for cancellation of bail and seek the custody of the accused.