LAW RELATING TO CANCELLATION OF BAIL

Under the scheme of the Code, there is no scope for filing an appeal against the order of grant of bail and only an application seeking cancellation of bail can be filed. The expression ‘appeal in respect of an order of grant of bail’ is used in the sense that the State can move the higher court.[1] Cancellation of bail is provided under Sec. 437(5) & Sec. 439(2), CrPC. The relevant provisions are extracted herein below:

Section 437 – When bail may be taken in case of non-bailable offence-

(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

Section 439 – Special powers of High Court or Court of Session regarding bail-

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Sec. 437(5), CrPC deals with cancellation of bail by Magistrate and Sec. 439(2), CrPC deals with cancellation of bail by High Court or Court of Session. As a matter of judicial propriety, the bail granted can either be cancelled by the same court which granted the bail or by an appellate court and not otherwise. There is also a long-standing convention and requirement of judicial discipline which has held the field for a long period that subsequent application for grant or cancellation of bail application should be placed before the same learned Judge who had passed the earlier order.[2] This certainly is a desirable course. But at the same time the party who makes a grievance that the course has not been followed has to indicate as to in what manner he was in prejudice by the deviation. The question of prejudice arises only when on the same set of facts, a different order is passed by another learned Judge cancelling the bail or granting the bail as the case may be. But where the cancellation is sought for on grounds different from those which existed at the time of granting bail, the conventional practice of placing the matter before the same learned Judge need not be followed as if it is a statutory requirement.[3]

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.[4] It is well settled that different considerations have to be weighed while considering an application for grant of bail and while considering an application for cancelling the bail already granted.[5] At the stage of cancellation of bail, reappreciation of facts available at the time of granting bail is restricted. Only supervening new circumstances or relevant facts which were not taken into consideration by the Court while granting bail or irrelevant facts which were taken into consideration for grant of bail, can be looked into.

The concept of setting aside the unjustified illegal or perverse bail order (That is, appeal against an order of grant of bail- misnomer) is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.[6]

One of the predominant grounds for cancellation of bail- on account of illegality in granting bail- is failure to consider relevant matter or consideration of irrelevant material for granting bail.[7] That apart, if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the Public Prosecutor/complainant where required, an order for cancellation of bail can in fact be made. (See Gajanan Agarwal v. State of Orissa[8] and Rizwan Akbar Hussain Syyed v. Mehmood Hussain[9]). Further, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the court granting bail.[10]

On the other end, grounds for cancellation of bail owing to new circumstances, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of concession granted to accused in any manner.[11] Bail once granted should not be cancelled in 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.[12] For instance, cancellation of bail, in matrimonial cases, for the sole purpose of remanding the accused to police custody to recover marriage articles, without there being any allegation of misuse of bail granted is perverse.[13] Further, mere assertion of alleged threat to witnesses should not be utilized as a ground for cancellation of bail[14], routinely. Otherwise, there is ample scope for making allegation to nullify the bail granted. The Court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law.[15] The Supreme Court in Myakala Dharmarajam v. State of Telangana[16], had reversed the order of cancellation of bail granted by the High Court on the ground that the allegation of threat upon the witness is omnibus and vague.

To seek cancellation of bail is prerogative of the investigation agency, however, when the order of granting bail is palpably illegal or unjustified, the victim of the offence has locus standi to prefer an application for cancellation of bail under Sec. 482, CrPC before the High Court.[17] In cases where the bail order suffers from illegality, the State may approach the appellate forum for the relief because it will be a futile process to approach the same court again, on the other hand, in cases where certain new circumstances have arisen, which were not earlier known to the State, the court that granted the bail can be approached for cancellation of bail.[18]

[1] Narendra K. Amin (Dr.) v. State of Gujarat, (2008) 13 SCC 584.

[2] Harjeet Singh v. State of Punjab, (2002) 1 SCC 649.

[3] Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362.

[4] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[5] Ramcharan v. State of M.P., (2004) 13 SCC 617.

[6] Puran v. Rambilas, (2001) 6 SCC 338.

[7] Narendra K. Amin (Dr.) v. State of Gujarat, (2008) 13 SCC 584.

[8] (2006) 12 SCC 131.

[9] (2007) 10 SCC 368.

[10] Subodh Kumar Yadav v. State of Bihar, (2009) 14 SCC 638.

[11] X v. State of Telangana, (2018) 16 SCC 51.

[12] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[13] Devender Kumar v. State of Haryana, (2010) 6 SCC 753.

[14] Samarendra Nath Bhattacharjee v. State of West Bengal, (2004) 11 SCC 165.

[15] Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362.

[16] (2020) 2 SCC 743.

[17] Gulabrao Baburao Deokar v. State of Maharashtra, (2013) 16 SCC 190.

[18] Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118.