Cancellation of Bail; Answer to Queries

Justice V. Ramkumar, former Judge of Kerala High Court has written two Articles in Livelaw regarding Cancellation of Bail

1. Cancellation of Bail ; Kerala HC Jt in James George @ Basaliyos Marthoma Yakob -Pradaman v. State – 2015 (4) KHC 943 does not appear to be correct
2. Is the High Court Right in Re-Affirming that Sections 437 (5) and 439(2) Cr.PC. are not Provisions for Cancellation of Bail? 

We have received many queries relating to the subject. In this Article Justice Ramkumar answers the questions

Q. 1. Supposing Sessions Judge grants bail by ignoring vital materials, can the High Court not cancel the bail under Section 439 ? or should the State invoke Sec. 397 ?

Ans. In the light of the 3 Judge Bench decisions of the Apex Court in (2008) 5 SCC 66 and (2008) 13 SCC 584 the High Court can cancel the bail under Section 439 (2) Cr.P.C. But cancellation of bail was hitherto exercised only on grounds attributable to the post-bail conduct of the accused. (Vide (2005) 4 SCC 178). In the present question it is really an instance of a superior court setting aside the bail order passed by the lower court. If the bail was granted by the Sessions Judge during the crime stage, then I am of the view that such an order is not an interlocutory order (unlike in the case of bail granted by a superior Court after suspending the sentence in a pending appeal) and, therefore, the bar under Section 397 (2) Cr.P.C. will not apply and it would be open to the State to challenge the bail order in a revision filed under Section 397 Cr.P.C. (Vide 2010 Crl. L.J. 4137).

Q.2. In Tamil Nadu when an accused on bail absconds NBW is issued in execution of which he is arrested and produced before the said Court. Can he be remanded to custody ? Or should he be asked to furnish fresh bond ?

Ans. If “abscondance” means failure to appear before Court then the Court is entitled to issue NBW to the accused since issuance of NBW pre-supposes the automatic forfeiture of bail bond within the meaning of Form No. 48 of Schedule 2 of Cr.P.C. and the consequential cancellation of the bail bond within the meaning of Section 446-A Cr.P.C. Thereafter, when the accused is arrested and produced, it is open to the Court to remand him to judicial custody or grant bail on fresh bond under the proviso to Section 446 A Cr.P.C. with one or more sureties.

Q.3. Supposing the High Court has granted bail in a Section 324 IPC case on condition that he executes as bond for Rs. 5,000/- with 2 sureties. He executes and comes out. During trial he absconds. Can NBW be issued or should the Magistrate give notice to the sureties first to secure him or pay the bond  amount ? If the Magistrate straightaway issues NBW and police arrest him and produce him, can the Magistrate remand him to custody and direct him to file fresh bail  application ?

Ans. The Magistrate can issue NBW to the accused and simultaneously issue notice to the sureties since on account of the failure on the part of the accused to appear, the bond stands automatically forfeited by virtue of Form 48 of 2^nd Schedule to Cr.P.C., and the bail bond itself stands cancelled by virtue of Section 446 - A Cr.P.C. If the Magistrate straightaway issues NBW and secures the presence of the accused, the Magistrate can either remand him to custody or release him on fresh bond with one or more sureties under the proviso to Section 446-A Cr.P.C. But if the accused has violated a bail condition other than one for appearance, then the Magistrate will be entitled to cancel the bail only if the bail order issued by the High Court had authorised the Magistrate to cancel the bail in the event of default by the accused and bail can in such an event be cancelled only after notice to the accused. P.K. Shaji Alias Thammanam Shaji v. State of Kerala - AIR 2006 SC 100).