05th of December, 2019

TOPIC FOR PRESENTATION

A) GROUNDS FOR CANCELLATION OF BAIL AND POWER OF

SUBORDINATE COURT TO CANCEL THE BAIL DURING THE
COURSE OF INVESTIGATION OR TRIAL,WHEN BAIL IS GRANTED
BY SUPERIOR COURT I.E HIGH COURT AND HON’BLE SUPREME
COURT

Discussion:

The object of arrest and detention of accused is to ensure his presence during trial and
also to secure that if he gets convicted then he will be present at the time of award of
punishment.Bail fulfils this object to secure the appearance of accused person at his trial
by reasonable amount of security.

Bail has not been defined in cr.p.c but it has been assumed as a surety of accused. In
other words “Bail is the temporary release from imprisonment on furnishing surety or
security to appear for trial”

According to cr.p.c bail can be granted in two ways , firstly in bailable offences as a
matter of right and in non-bailableoffences,it is the discretion of court. The granting of
bail in a non-bailable offence is a concession allowed to an accused person and it
presupposes that this privilege is not being abused in any manner. it is a sort of trust
reposed in him by court and if it is found that he has betrayed this trust in any manner
he disentitles himself to privilege so granted. Bail once granted to an accused can’t be
cancelled in a mechanical manner without considering whether any supervening
circumstances have rendered. It is no longer conductive to a fair trial to allow the
accused to retain his freedom by enjoying the concession of bail during trial. for the
purpose of cancellation of bail there must be some act of the accused.
Power to cancel bail must be exercised with care and circumspection and in appropriate
cases. Principles governing cancellation of bail are given u/s 437(5),439(2) of cr.p.c..
Section 437 (5) Cr.P.C is reproduced herein under:

“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.”

According to S-439(2) A High Court or Court of Sessions may direct that any person
who has been released on bail under this Chapter be arrested and commit him to
custody.”

In Aslam Babalal Desai v. State of Maharashtra 1992 Cri. L.J. 3712 (SC), the
Supreme Court after referring the earlier decisions of the court held that the grounds for
cancellation of bail under Section 437(5) and 439(2), Cr.P.C. are identical and the bail
granted can be cancelled on the following grounds:-
“(i) where the accused misuses his liberty by indulging in similar
criminal activity,
(ii) where he interferes with the course of investigation,
(iii) where he attempts to tamper with evidence of witnesses,
(iv) where he threatens witnesses or indulges in similar activities, which would hamper
smooth investigation,
(v) where there is likelihood of his fleeing to another country,
(vi) where he attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency, and
(vii) where he attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency, where attempts to place himself beyond the
reach of his surety, etc."
In Daulat ram vs. State of haryana1995(1)SCC349. Hon’ble Supreme Court held that
“Very cogent and overwhelming circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking, the grounds for
cancellation of bail, 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 the concession granted to the accused in any
manner. The satisfaction of the court, on the basis of material placed on the record of
the possibility of the accused absconding is yet another reason justifying the
cancellation of bail.
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.”
Cancellation of bail in bailable offences :-

By invoking inherent powers of the high court under sec.482 Cr.P.C. bail
granted to a accused with reference to bailable offence can be cancelled only if the
accused -
1- Misuses his liberty by indulging in similar criminal activity,
2- interference with the course of investigation,
3- attempts to tamper with evidence or witnesses,
4- attempts to flee to another country, etc. Rashik lal vs Kishore (2009) 2
SCC(Cri.) 338.

Relevant considerations for cancellation of bail-

1- Chances of accused absconding.
2- Interference or attempt to interfere with due course of administration of
justice,
3- Abuse in any manner of bail.
When a person to whom bail has been granted either tries to interfere with the course of
justice or attempts to temper with evidence or witnesses or threatens witnesses or
indulges in similar activities which would hamper smooth investigation or trial , bail
granted can be cancelled--
a- Y.S. Jagan Mohan Reddy vs CBI (2013)7 SCC 439.
b- Hazari Lal Das vs State of W.B. 2009 (6) S.C. 564.
c- Union of India vs Subash Chandra 2002 (2) JIC 314 (All)
d- Daulat Ram vs State of Haryana 1995 (Cri.) 237.

1- Cancellation of bail on the ground of threat to witnesses-

Panchannan Mishra vs Digambar Mishra AIR 2005 SC 1299.
b- Mehboob Dawood Shaikh vs State of Maharashtra AIR 2004 SC 2890. Note: Relying
upon the above noted Supreme Court rulings, a Division Bench judgment of Hon’ble
Allahabad High Court delivered in Cr. Misc. Petition No. 5695/2006, Karan Singh Vs.
State of U.P., decided on 12.4.2007 and circulated amongst the judicial officers of the
State of U.P., vide C.L. No. 6561/2007 Dated: April 21, 2007 directs the judicial
officers to initiate process for cancellation of bail of such accused who threaten the PWs
to turn hostile.

2- Miscarriage of justice:- The High Court or the Sessions Court can cancel the bail
even in cases where the order granting bail suffers from serious infirmities resulting in
miscarriage of justice. If the court granting bail ignores relevant materials indicating
prima facie involvement of the accused or takes into account irrelevant material, which
has no relevance to the question of grant of bail to the accused, the High Court or the
Sessions Court would be justified in cancelling the bail. Such orders are against the
well-recognised principles underlying the power to grant bail. Such orders are legally
infirm and vulnerable leading to miscarriage of justice and absence of supervening
circumstances such as the propensity of the accused to tamper with the evidence, to flee
from justice, etc. would not deter the court from cancelling the bail. (Anil kumar yadav
vs. State of delhiCriminal Appeal No. 1940 of 2017 )

3-Cancellation of bail on the basis of post bail conduct and/or supervening

circumstances:- For cancellation of bail granted to an accused u/s. 437 or 439 Cr.P.C.,
post bail conduct of the accused and supervening circumstances can also be taken into
consideration.
(See-State Through CBI Vs. Amarmani Tripathi, 2005 (53) ACC 484 (SC))
4-Cancellation of bail on protraction of trial by seeking unnecessary adjournments
:-Bail granted to an accused u/s. 437 or 439 Cr.P.C. can be cancelled if the accused
indulges into deliberate protraction of trial or taking unnecessary adjournments.
(See- Lalu Prasad Yadav Vs. State of Jharkhand, (2006) 6 SCC 661)

5-.Cancellation of bail on the basis of non-reasoned bail order passed by ignoring

material on record :- An order granting bail u/s. 437 or 439 Cr.P.C. by ignoring
material and evidence on record and without reasons, would be perverse and contrary to
the principles of law of bail. Such bail order would by itself provide a ground for
moving an application for cancellation of bail. Such ground for cancellation is different
from the ground that the accused mis-conducted himself or some new facts called for
cancellation of bail. Discussing evidence while granting bail is totally different from
giving reasons for grant of bail. High Court, u/s. 482 or 439 Cr.P.C., can cancel such
bail granted by Sessions Judge u/s. 439 Cr.P.C. even if such bail order is interlocutory
order.
(See- 1. Brij Nandan jaiswal Vs. Munna Jaiswal, AIR 2009 SC 1021
2. Puran Vs. Ram Bilas, (2001) 6 SCC 33)
6:-Cancellation of bail on the ground of concealment of facts:-. Bail granted on the
basis of concealment of facts would be liable to be cancelled on this ground alone.See...
Tufail Ahmed Vs. State of U.P, 2010 (5) ALJ 102 (All).

Who can move application for cancellation of bail- It is settled law that complainant
can always question the order granting bail if the said order is not validly passed. It is
not as if once a bail is granted by any court, the only way is to get it cancelled on
account of its misuse. The bail order can be tested on merits also and the complainant
can question the merits of the order granting bail. Either State or any aggrieved party (in
the instant case father of the deceased for offences u/s. 498-A, 304-B IPC) can move
application for cancellation of bail granted earlier to the accused. See-
1. Brij Nandan jaiswal Vs. Munna Jaiswal, AIR 2009 SC 1021
2. Puran Vs. Ram Bilas, (2001) 6 SCC 338
The discretion of grant or cancellation of bail can be exercised either at the instance of
the accused, the public prosecutor or the complainant on finding new material or
circumstances at any point of time.
(See-Siddharam satlingappa Mhetre Vs. State of Maharashtra, 2011(1) SCJ 36)

Notice / hearing to accused before cancellation of bail:- An accused must be given

notice and opportunity of being heard before the bail granted to him earlier is cancelled.
See-
P.K. Shaji Vs. State of Kerala, (2006) 2 SCC (Cri) 174
Gurdev Singh Vs. State of Bihar, (2005) 13 SCC 286

A bail granted by SJ or High Court not to be cancelled by the Magistrate : Where

Bail was granted by a Sessions Judge, any cancellation or alteration of the conditions of
bail can be made by the Sessions Judge himself or by the High Court only and not by a
Magistrate. See….Ananth Kumar Naik Vs. State of AP, 1977 CrLJ 1797 (AP)
Order of Judicial Magistrate cancelling bail is revisable by SJ: An order passed by
Judicial Magistrate cancelling bail is revisable before the Sessions Judge. See… Pandit
Dnyanu Khot vs. State of Maharashtra, 2002 (45) ACC 620 (SC).
 B) Question: Whether subordinate court can cancel the Bail during the course
of investigation or trial, when Bail is granted by Superior court i.e. High
Court or Hon’ble Supreme Court?

Discussion: The Judicial discipline requires a Subordinate Court not to cancel the bail
granted by a Superior Court/Higher Court. This does not require any elaborate
discussion or quoting of judicial precedents and it falls within the first principles of law
wherein a Subordinate Court cannot cancel or set aside the order granted by a Superior
Court/Higher Court. However, the attempt has been made to look into the fact whether
this rule is absolute or is there any exception appended to it.

Before adverting to the subject matter, it is necessary to understand the law governing
the bail by the Sessions Court/High Court itself. It is apposite to mention that Section
439(1)(a) of the Code of Criminal Procedure, 1973 empowers the Sessions Court/High
Court to impose any condition which it considers necessary for granting the bail. It is
also apposite to mention that a bail order passed by the Sessions Court/High Court
under Section 439 of the Code of Criminal Procedure, 1973 is required to discuss only
the eligibility criteria for grant of bail. In the bail orders of the Supreme Court and
several High Courts, after directing the release of the accused on bail, the orders would
direct the actual release of the prisoner on bail to the satisfaction of the concerned
Magistrate. The amount of bail bond also will not be fixed, because, the financial
capability and other factors can be best assessed only by the police officer/Magistrate in
whose custody the accused remains.

Section 441 of the Code of Criminal Procedure, 1973 then deals with the bond of
accused and or sureties by virtue of which the Legislature has left it to the discretion of
the police officer/Court to fix the amount of the bond and the number of sureties.
However, if the police officer / Magistrate fixes an unreasonable amount, the Sessions
Court / High Court has the power to reduce it under Sec. 440(2) of the Code of Criminal
Procedure, 1973.

So when a superior court grants the bail, the accused is directed to appear before the
sub-ordinate court and comply with the conditions imposed in the bail order. Needless
to say that the accused is bound to appear on all the hearing dates before the Court
unless his presence is dispensed with.

In this backdrop, what happens when on a particular date, the accused does not appear
nor a petition is filed by his counsel to dispense with his presence? The answer to this
question is available in Sec. 89 of the Code of Criminal Procedure, 1973 which speaks
about arrest on breach of bond for appearance. By virtue of Section 89 of the Code of
Criminal Procedure, 1973, the Court records the absence of the accused and issues a
warrant to secure his presence. By his non appearance followed up with the act of the
Court in issuing the non-bailable warrant for securing his presence, the accused has
prima facie breached the condition of the bond.

At this stage it is also very necessary to advert to Section 436 of the Code of Criminal
Procedure, 1973 where a bare reading of Sec. 436(2) of the Code of Criminal
Procedure, 1973 shows that if a person had failed to comply with the conditions of the
bail bond as regards the time and place of attendance, and subsequently, if he appears or
is produced before the Court, the Court can refuse to release him on bail.

Here, the expression ?Court? can mean only the Court to which the accused had
executed the bail bond under Sec. 441 of the Code, including the Court to which the
case is subsequently transferred. (See the Explanation in Sec.446 of the Code). The
Legislature thought it fit to include a new provision as Sec. 436(2) to the Code, because,
the accused, who had jumped bail, cannot claim bail under Sec. 436(1) as a matter of
right even in a bailable case. To say that Sec. 436(2) would deny bail only to an accused
who had jumped bail in a case involving bailable offence and not to an accused who had
jumped bail in a case involving a non-bailable offence, would clearly defeat the very
purpose of the provision. Sec. 436(2) of the Code is not a provision for cancellation of
bail. It deals with breach of conditions of the bail bond and the consequence of it, viz.,
that the person cannot, as a matter of right, ask for bail.

Under Sec. 437(5) of the Code, there is an independent power to cancel bail to a person
involved in a non-bailable offence and who has been granted bail by the Magistrate
under Sec. 437(1). However, under Sec. 439(2) of the Code, the Sessions Court / High
Court can cancel the bail of a person who has been released on bail under Chapter
XXXIII, which means that these Courts can cancel the bail of a person who has been
released by the Magistrate even in a case involving a bailable offence.

In any event, the principle of audi alteram partem is a sine qua non for cancelling the
bail either under Sec. 437(5) or under Sec. 439(2) of the Code, unless, despite issuance
of notice, if the Court is satisfied that the accused is deliberately keeping away from
participating in the cancellation proceedings. For instance, if a foreigner released on
bail, had illegally slipped away from India, it will be ludicrous for the Court to wait for
his return to India in order that he can participate in the proceedings for cancellation of
bail.

Now another important facet to this entire concept of the cancellation of bail granted by
the superior court pertains to Section 446 A of the Code of Criminal Procedure, 1973.
Section 446 of the Code of Criminal Procedure, 1973 deals with Procedure when bond
has been forfeited and 446A deals with Cancellation of bond and bail. It is apposite to
mention that when the accused is produced before the court and if he is not able to
satisfactorily give reasons as to why he did not appear before the Court, then, the
Magistrate/Court is required to record an order of forfeiture and remand the accused to
judicial custody under Sec. 309 of the Code of Criminal Procedure, 1973. Thereafter,
bail is not a matter of right even in a case involving a bailable offence. If the accused is
able to give satisfactory reasons for his absence at the time of his production in
execution of the non-bailable warrant / appearance, then, there is no necessity to remand
him to judicial custody. If the accused seeks time to give his explanation, he can be
remanded to judicial custody pending enquiry. The order of forfeiture of bond that has
been recorded by the Court will not automatically have any consequence on the sureties
under Sec. 446 of the Code of Criminal Procedure, 1973, because, a separate notice is
required to be given to the sureties to show cause as to why penalty should not be paid
by them and only if they are not able to show cause, can the Court proceed to recover
the penalty as if it were a fine imposed under the Code of Criminal Procedure, 1973.
Thus, the consequences of forfeiture of the bond operates differently for the accused and
the sureties. The fact that the accused had been in asbcondence for a long period and
that he has not been able to give satisfactory explanation for his absence at the time of
his production/appearance, is, by itself, a sufficient ground for forfeiture of the bond.
What the Court/Magistrate shall record is, the period of abscondence, explanation given
by the accused and the reasons for non acceptance. This, by itself, will complete the
forfeiture proceedings qua the accused. Thus, the Magistrate has the option to release
the accused on his personal bond with one or more sureties or refuse to release him. If
the Magistrate / Court refuses to release the accused, he will have to, perforce, remand
him to custody under Sec. 309 of the Code. Thereafter, the accused will have to apply
for fresh bail. The accused would have been granted bail in the earlier proceedings
judging the gravity of the offence, his antecedents and other factors. In the subsequent
bail application, the Court will have to consider an additional factor, viz., the factum of
the accused having absconded after availing bail. Thus, the consequences of
cancellation of bail and the cancellation of bail bond vis-a-vis the accused are one and
the same. Any other interpretation of Sec. 446-A would make it otiose.

For taking action under Sec. 446 of the Code, notice should be issued to the sureties and
it should be proved in a separate proceedings that the accused had violated the bail bond
for the sureties to make good the bond amount. Proviso to Sec. 446-A(b) of the
Code states that the Court may release him in that case upon execution of a personal
bond. The expression “may” has been recently interpreted by the Supreme Court
in Pankaj Jain vs. Union of India and another [2018 SCC OnLine SC 160] in connection
with Sec. 88 of the Code. Para no. 23 and 31 of the said judgment are reproduced
hereinunder:

“23 Section 88 of the Cr.P.C. does not confer any right on any person, who is present in
a Court.

Discretionary power given to the Court is for the purpose and object of ensuring
appearance of such person in that Court or to any other Court into which the case may
be transferred for trial. Discretion given under Section 88 to the Court does not confer
any right on a person, who is present in the Court rather it is the power given to the
Court to facilitate his appearance, which clearly indicates that use of word ?may? is
discretionary and it is for the Court to exercise its discretion when situation so
demands.

31. We thus conclude that the word ?may? used in Section 88 confers a discretion on
the Court whether to accept a bond from an accused from a person appearing in the
Court or not.?

The aforesaid interpretation will apply in all fours to the interpretation of the word
?may? used in proviso to Sec. 446-A(b) of the Code. A fortiori, the Court / Magistrate
may not release him and after recording that the bond has been forfeited since the
accused had been in abscondence for a long period and that the reason given by him for
his abscondence is not satisfactory, the Court / Magistrate can remand him to judicial
custody under Sec. 309 of the Code. Thereafter, the accused should have to apply for
fresh bail which can be considered on merits by taking into consideration the period of
his abscondence and the desirability to grant bail to such a person.”

CONCLUSION

If an accused is on bail, whether it being a bailable or a non-bailable offence and

whether granted by a superior court or by the magistrate, and such an accused does not
appear on a hearing date and no petition is filed for dispensing with his presence, non-
bailable warrant can be issued under Sec. 89 of the Code of Criminal Procedure, 1973.
On the appearance of the accused or on his production by the police, what is required to
be given is, an opportunity to him to explain as to why he did not appear from that
particular date onwards. If he gives a satisfactory explanation, he can be let off by
recalling the warrant. If his explanation is not satisfactory, the Magistrate/Court is
required to record the reasons and give a finding that the bond has been forfeited. On
such finding, the bail bond gets automatically cancelled. Thereafter, the
Magistrate/Court cannot release him on his own bond in view of the bar under Sec.446-
A(b). He may be released under the proviso to Sec.446-A(b) on his executing a bond
with fresh sureties, or, he may be remanded to custody under Sec. 309 of the Code of
Criminal Procedure, 1973. If he is so remanded to judicial custody, he should apply for
fresh bail. Thereafter, the Magistrate/Court can issue notice under Sec. 446 of the Code
of Criminal Procedure, 1973 to the sureties separately for payment of penalty. In the
bail application filed afresh by the accused either under Sec.436 or 437 or 439 of the
Code of Criminal Procedure, 1973, the Court will have to consider not only the usual
parameters for grant of bail but also the additional factor, viz., his abscondence.

As such if an accused on bail in a non-bailable offence, whether granted by a Superior

Court or a Magistrate, does not appear on the hearing date and no petition is filed for
dispensing with his presence and non-bailable warrant has been issued, on the
appearance of the accused or on his production by the police (through PT warrant in this
case), an opportunity should be given to the accused person to explain as to why he did
not appear from that particular date onwards. If a satisfactory explanation is given, he
can be let off by recalling the warrant. If his explanation is not satisfactory, the trial
Court is required to record the reasons and give a finding that the bond has been
forfeited. On such finding, the bail bond gets automatically cancelled. The effect
of Section 446-A is that, on the cancellation of the bail bond, the bail also gets
automatically cancelled.

Thereafter, the accused person may be released under the proviso under Section 446-
A(b) on his executing a bond with fresh sureties or he may be remanded to custody
under Section 309 of Cr.P.C.

It is also pertinent to mention that Hon'ble Supreme Court in Pankaj Jain vs. Union of
India (Supra.) empowers Subordinate Court to deal with such a situation by virtue of
the coming into force of Section 446-A of Cr.PC. It is important to understand that
cancellation of bail is not synonymous to cancellation of bail bond. Therefore, by
adopting to such a procedure, the Subordinate Court is not canceling the bail granted by
a Superior Court. It is only canceling the bond executed by the accused due to non-
compliance of the bail bond condition. This is well within scope of the 446-A of Cr.PC.