Introduction
Bail forms an essential part of the right to liberty under a. 21 of the Constitution of India ('Constitution'). Although the term 'bail' was not expressly defined in any statute, it was described as,
"The release of a person from legal custody by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court."1
S. 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS') now defines bail as the release of a person accused or suspected of committing an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond.
The considerations for granting bail differ from those for cancelling bail. Cancellation of bail is governed by ss. 439(2) and 437(5) of the Code of Criminal Procedure, 1973 ('CrPC'). S. 439 of the CrPC is now s. 483 of the BNSS with no changes, and s. 437 of the CrPC is now s. 480 of the BNSS with modifications regarding bail for first-time offenders and stricter conditions for those facing multiple charges.
While bail is the rule and jail is the exception, granting bail is based on the court's prima facie view of the material presented. Bail is granted only after making sure that it does not vitiate the trial and the case of the prosecution, considering factors such as flight risk, threat to the victim, seriousness of the offence, and severity of punishment. However, once bail is granted, it cannot be cancelled mechanically due to these reasons. Bail cancellation is based on a different set of circumstances, which come into play only when the conditions of the bail order are liable to be abused.
This insight explores a crucial aspect of the bail process: bail cancellation. It examines the jurisprudential stance of the law on this matter. It delves into the intricate legal prerequisites, including a detailed examination of the grounds for granting or denying bail cancellation and the burden of proof required.
Jurisdictional Boundaries in Bail Cancellation
Ss. 439(2) and 437(5) of the CrPC specifically provide for the cancellation of bail. S. 439(2) gives the High Court and the Sessions Court the authority to cancel bail, while s. 437(5) grants this authority to subordinate courts, including Magistrates.
In Chinmaya Sahu v. State of Orissa2, the Supreme Court held that a Magistrate lacked the authority to cancel bail granted under s. 436 of the CrPC, as this section does not encompass provisions for bail cancellation. The Court elucidated that the power to cancel bail under s. 436 is vested exclusively in the High Court or the Sessions Court under s. 439(2) of the CrPC. The court further clarified that while a Magistrate has the authority to cancel bail under s. 437(5) of the CrPC, this power is applicable only when bail has been granted under ss. 437(1) or 437(2) of the CrPC.
Further, it is well settled that an application for the cancellation of bail can be moved only before the Judge who granted the bail. In a recent decision of the Supreme Court in Himanshu Sharma v. State of Madhya Pradesh3, the court held that the exercise of jurisdiction by the Single Judge of the Madhya Pradesh High Court in cancelling the bail granted by another Single Judge was uncalled for and amounted to judicial impropriety and indiscipline. It was observed that the application for cancellation of bail should have been placed before the same Judge who granted the bail under normal circumstances and that the Judge cancelling the bail, in this case, had effectively reviewed the orders granting bail, which amounted to gross impropriety.
The Bail Balancing Act: Setting Aside v. Cancelling Bail
It is important to distinguish between a plea for cancellation of bail and a plea challenging the bail order. While both involve the court exercising its discretion within the four corners of the law and may result in the same outcome, they differ significantly. The former focuses on supervening circumstances, while the latter requires the court to focus on the original grounds for granting bail and their legal tenability. If there is illegality in the bail order, the prosecution may seek to quash it. Conversely, if the bail conditions are misused, they may apply for its cancellation.
The Supreme Court in Pooran v. Ram Vilas4 emphasised that setting aside an order as unjustified, illegal, or perverse is entirely distinct from cancelling bail on the ground that the accused misconducted himself. Such cancellation may occur due to misconduct or supervening circumstances. This principle has been reiterated in the case of Venkatesh Balasubramaniyan5, wherein the Supreme Court observed that a default bail was illegally or erroneously granted under s. 167(2) of the CrPC can be cancelled under s. 439(2) of the CrPC. In Tahir v. Shaukat6, it was clarified that the application for cancellation of bail is not to be treated as a matter of right nor considered as an Appellate Court against the order granting bail.
Another distinction was brought forth by the Supreme Court in Nityanand Rai v. State of Bihar7, where the High Court was criticised for treating the application for cancellation of bail as if it were an application for the grant of bail, specifying that grounds for bail cancellation should relate to post-bail conduct and must be directly connected to the accused's behaviour while released on bail.
Judicial Stance: Grounds for Cancelling Court-Granted Bail
After granting bail to an individual, the court may retract its decision by cancelling the bail in specific situations. Such cancellation can occur either through the court's own initiative (suo moto) or in response to a request from the police, the complainant, or another affected party. However, courts exercise great caution in cancelling bail, considering its direct impact on an individual's freedom, which has a direct bearing on a. 21 of the Constitution. Generally, bail is not cancelled once granted unless the court identifies compelling and robust reasons against the accused.
In Daulat Ram and Ors v. State of Haryana8, the Supreme Court observed that the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different bases. Once bail is granted, it should only be cancelled in the presence of cogent and overwhelming circumstances.
Generally, bail may be cancelled due to supervening circumstances or if pertinent facts were hidden during the bail application. Subsequently, if the accused's involvement in other criminal activities becomes evident, reconsidering bail, including its cancellation, is possible. Furthermore, if the accused attempts to tamper with witnesses or obstruct the course of justice in any manner, this may result in the revocation of bail.
It is also pertinent to understand that there is no universally applicable rule for the automatic cancellation of bail. This was observed by the Supreme Court in Ash Mohammed v. Shiv Raj Singh @ Lalla Babu9, which highlighted that each case requires critical analysis. While giving due importance to the liberty of an individual, the court held that the same was controlled and restricted, and no element in society can act in a manner that jeopardises the life or liberty of others. This having been stated, it was held that the reasoning behind the bail order should be thoroughly examined to prevent arbitrary decisions when considering the cancellation of bail.
Several cases illustrate specific circumstances under which bail can be cancelled. In one of the oldest cases on this issue in 1951, the Madras High Court, in Public Prosecutor v. George W10, outlined five scenarios warranting the cancellation of bail and recommittal to jail:
1) If the person, while on bail, commits the same offence for which he is being tried or convicted.
2) If he obstructs the investigation, such as forcibly preventing searches.
3) If he tampers with evidence, for example, by intimidating witnesses.
4) If he flees the country, goes underground, or evades his sureties.
5) If he engages in acts of violence against law enforcement, witnesses, or those involved in his prosecution.
In the case of Prakash Kadam11, the Supreme Court noted that when assessing a matter of bail cancellation, the court should consider the gravity and nature of the offence, the prima facie case against the accused, and the accused's position and status. The court pointed out that even in the absence of misuse of bail conditions, bail may be subject to cancellation if the allegations are serious.
For instance, in State v. Veerapandy12, the accused violated imposed bail conditions by threatening to kidnap or murder the deceased's son, thereby obstructing the prosecution's access to crucial evidence. This led to the court's decision to cancel the granted bail. This was an interesting case wherein the court also discussed the meaning of 'discretion' arising from using the term 'may' in s. 439 of the CrPC. It was stated that discretion, when applied to a court of justice, means 'sound discretion guided by law' which must be governed by rule, not by humour and which must not be arbitrary, vague and fanciful, but legal and regular, and in the case of granting bail the discretion of the Judge must be exercised not in opposition to, but in accordance with, the established principles of law.
In Tahir v. Shaukat (supra), it was held that if it is proved beyond reasonable doubt that the accused, who was granted bail, has misused it by interfering with the course of justice in any manner, such as the accused's actions in interfering with the administration of justice, attempting to tamper with witnesses, and jeopardising a fair trial, it would be deemed sufficient grounds for the cancellation of bail.
Moreover, in the recent case of Deepak Yadav v. State of Uttar Pradesh13, the Supreme Court observed that while the cancellation of bail cannot be limited to the occurrence of supervening circumstances, the court certainly has inherent powers and discretion to cancel the bail of an accused even in the absence of such circumstances. This is particularly relevant when the court granting bail overlooks the accused's influential position compared to the victim or the witnesses, especially when there is prima facie evidence of the misuse of position and power over the victim. The court emphasised the importance of a comprehensive evaluation of factors such as the criminal background of the accused, the nature of the crime, material evidence, the accused's involvement in the crime, and the recovery of a weapon from his possession, especially in deciding bail applications for serious offences.
Furthermore, in the case of T. Gangi Reddy14, the Supreme Court laid down an important principle stating that there is no absolute bar on cancelling 'default bail' on merits after presenting the chargesheet. It was noted that the mere filing of the chargesheet subsequent to a person's release on default bail under s. 167(2) of the CrPC cannot be grounds for cancelling the bail of a person released on default bail. However, if a strong case is made out on merits, it is found that the accused has committed a non-bailable offence, and considering ss. 437(5) and 439(2) of the CrPC, over and above other grounds, the bail to a person released on default bail can be cancelled on merits.
In summary, the circumstances warranting the cancellation of bail, based on supervening factors, include changes in circumstances, violation of bail conditions, the commission of a new offence, concerns for public safety, tampering with evidence, or any other situation that renders it unfair to allow the accused to remain free on bail while awaiting trial. Further, bail can also be cancelled if, during its grant, the court fails to consider any relevant material, overlooks the accused's prior criminal record or influential standing, or if the bail order is marred by serious flaws that result in a miscarriage of justice.
Other Considerations in Bail Cancellation
An interesting issue arose before the Supreme Court in Parvinder Singh Khurana v. ED15 in July 2024 regarding the power to grant an interim stay of an order granting bail until the application for bail cancellation was disposed of. The court stated that once established, the High Court or Sessions Court has the power to cancel bail under s. 439(2) of the CrPC, the power to stay an order granting bail is implicit. However, the Supreme Court advised that the competent court should be very slow in granting a drastic interim stay of the order granting bail. Instead, the court could impose additional bail conditions on the accused. It was stated that such stay orders should be rare, and the interim stay is not necessarily in aid of the final relief. It can be granted only in exceptional cases with a very strong prima facie case for cancellation of bail, and this prima facie case must be of a very high standard. Additionally, the court held that, as a standard rule, ex-parte stays of the order granting bail should not be passed.
An important issue discussed by India's highest court of law is the re-appreciation of evidence in the context of a bail cancellation application. The Supreme Court in Dinesh M.N. (SP) v. State of Gujarat16 emphasised a crucial distinction. While granting bail, a court should avoid reappreciating evidence. However, in considering a plea for bail cancellation under s. 439(2) of the CrPC, the court is permitted to examine whether irrelevant materials were erroneously considered during the initial grant of bail. This examination is essential because the court handling the bail cancellation application may not be fully aware of the extent to which irrelevant material influenced the original bail decision.
Thus, while courts generally refrain from appreciating evidence when granting bail, reconsideration becomes crucial when there are concerns that the decision might have been based on irrelevant material. In such cases, a review of the previous evidence may be necessary to rectify discrepancies and ensure a just decision. The Supreme Court in Ramcharan v. State of M.P.17 clarified that bail could not be cancelled solely based on the reappreciation of case facts due to the restriction imposed by s. 362 of the CrPC, which prohibits a court from altering or reviewing a case once a final order has been passed, except for correcting clerical or arithmetical errors.18
Touching upon the principles of natural justice, in P.K. Shaji v. State of Kerala19 and Gurdev Singh v. State of Bihar20, the Supreme Court held that the accused must be given an opportunity to be heard before their bail is cancelled. This principle highlights the importance of ensuring fair hearing rights during bail cancellation.
The burden and standard of proof in bail cancellation cases lies on the State or the party seeking cancellation to provide sufficient material or demonstrate that the allegation of misuse or misconduct has substance. Justice D. Y. Chandrachud observed that it is easier to reject a bail application in a non-bailable case than to cancel a bail granted in State (Delhi Administration) v. Sanjay Gandhi21, wherein the Supreme Court clarified that the standard of proof for bail cancellation is not as stringent as proving guilt beyond a reasonable doubt. For bail cancellation applications, the prosecution can establish its case on a preponderance of probabilities, such as the fact that certain witnesses turned hostile, it must show some act or conduct on the part of the accused from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of intervention by or on behalf of the accused.
Conclusion
The cancellation of bail is a significant judicial decision that profoundly impacts an individual's freedom, as enshrined in a. 21 of the Constitution. Courts exercise considerable caution when retracting bail, necessitating compelling and robust reasons against the accused. Specific provisions in the CrPC, now BNSS, empower the higher and the subordinate courts to cancel bail, emphasising the importance of considering the gravity of supervening circumstances.
The reasoning behind different sets of parameters for the grant of bail and its cancellation is that once an accused has been enlarged on bail and tried for the offence, the accused is deemed innocent until proven guilty. This is the reason why bail is granted. Further, bail is also extended to an accused to enable him to defend himself properly before the trial court. Bail also ensures personal liberty to the accused who is not yet convicted. However, when the accused starts abusing the liberty granted to him, the courts, at their own discretion, may sometimes order the cancellation of bail granted thereof.
The Indian judiciary has evolved where it has been laid down that when an undertrial is ordered to be released on bail, his liberty is restored, which cannot be taken away for the asking since the undertrial is not a convict. Hence, it is correct to say that the cancellation of bail takes away the fundamental right of liberty afforded by the Constitution from the person who has gotten a court-granted bail, meaning that the accused has obtained a judicially reasoned court order ensuring his liberty and freedom of movement. The cancellation of bail effectively takes away this right from the accused. Thus, the courts must strike a delicate balance between safeguarding individual liberty and maintaining the integrity of the judicial process. This nuanced approach ensures that justice is served while upholding the principles of fairness and due process.
Footnotes
1 Black's Law Dictionary 177 (4th ed.).
2 Chinmaya Sahu v. State of Orissa[ii], 2023 SCC OnLine Ori 5121, dated: 20.07.2023.
3 Himanshu Sharma v. State of Madhya Pradesh, (2024) 4 SCC 222.
4 Pooran v. Ram Vilas, (2001) 6 SCC 338.
5 Venkatesh Balasubramaniyan v. The Intelligence Officer, DRI Bangalore, (2021) 16 SCC 376.
6 Tahir v. Shaukat, 1986 SCC OnLine All 219.
7 Nityanand Rai v. State of Bihar, (2005) 4 SCC 178.
8 Daulat Ram and Ors v. State of Haryana, (1995) 1 SCC 349, dated: 24.11.1994.
9 Ash Mohammed v. Shiv Raj Singh @ Lalla Babu, (2012) 9 SCC 446.
10 Public Prosecutor v. George Williams. 1951 SCC OnLine Mad 157, dated 26.04.1951.
11 Prakash Kadam & Ors. v. Ram Prasad Vishwanath Gupta, (2011) 6 SCC 189.
12 State v. Veerapandy, 1979 SCC OnLine Mad 218.
13 Deepak Yadav v. State of Uttar Pradesh, 2022 SCC OnLine SC 672.
14 State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, Criminal Appeal No. 37 of 2023.
15 Parvinder Singh Khurana v. ED 2024 SCC OnLine SC 1765.
16 Dinesh M.N. (SP) v. State of Gujarat, (2008) 5 SCC 66.
17 Ramcharan v. State of M.P, (2004) 13 SCC 617.
18 Abdul Basit @ Raju & Ors. v. Mohd. Abdul Kadir Chaudhary & Anr., (2014)10 SCC 754.
19 P.K. Shaji v. State of Kerala, (2005) 13 SCC 283.
20 Gurdev Singh v. State of Bihar, (2005) 13 SCC 286.
21 State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411.
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