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

The first accused who had allegedly committed offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code, was granted bail by the Chief Judicial Magistrate. Subsequently, the Sessions Judge was moved through a petition filed under Section 439 (2) Cr.P.C. for cancellation of the bail granted to the Ist accused. The said petition was allowed by the Sessions Judge. Aggrieved by the order of the Sessions Judge cancelling the bail, the Ist accused approached the Hon'ble High Court. As per the reported decision quoted above, a learned Judge of the High Court quashed the order passed by the Sessions Judge holding inter alia, as follows:-

“Much discussion is not required to conclude that the Court below, being a Sessions Court, has no power to “cancel the bail” by invoking the power under Section 439 (2) Cr.P.C. The provisions contained under Sections 439 (2) Cr.P.C. and 437 (5) Cr.P.C. are not meant for cancellation for bail; whereas those provisions are meant for arrest of an accused who was enlarged on bail”.

2. With due respect, the above proposition of law, although literally correct on the wording of Sections 437 (5) and 439 (2) Cr.P.C. does not reflect the true legal position. It is indeed true that there is no express provision in the Cr.P.C. to cancel  bail.  But the  power of the Court  (other than the High Court or a Court of Session) which had granted bail to a person, to cancel the same, has always been traced to Section 437 (5) Cr.P.C. The said sub-section reads as follows:-

  ^“ 437  (1)

           (2)

           (3)

           (4)

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

Likewise, Section 439 (2) which has always been understood as the source of power for the High Court and the Court of Session to cancel bail, reads as follows:-

“439 (1)

(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”

3. The word “bail” is used both as a verb as well as a noun. As a verb it means to deliver an arrested person to his sureties upon their giving security for his appearance at the time and place designated and to submit to the jurisdiction and judgment of the Court. As a noun the word “bail” means the “sureties” into whose custody arrested person is delivered. As a noun it also means “the privilege of release on bail”. When a Court of justice grants bail to a person in custody such person is released from the custody of law and entrusted to the custody of his sureties (bail) who are jailers of his own choosing. In the case of a bailable offence, the person under arrest is entitled to bail as of right and the Police Officer or the Court granting him bail is not entitled to impose any condition. In the case of a non-bailable offence, the Police Officer or the Court enlarging the accused person on bail can impose conditions which are known as “bail conditions”. By virtue of Section 441 (2) Cr.P.C., such bail conditions are to be incorporated in the bail bond executed by the person in custody.
4. In the case of bailable offences, it may be noted that there is no provision in Section 436 Cr.P.C. (unlike Section 437 (5) Cr.P.C.) entitling the Court to cancel the bail already granted. This appears to be illogical because the Court (i.e. the Magistrate) which has granted bail for non-bailable offences involving relatively graver crimes is given the power under Section 437 (5) Cr.P.C. to cancel the bail. But the Court (i.e. the Magistrate) which has granted bail in a case involving bailable offences which are relatively minor crimes, is not given the power to cancel the bail already granted. If the justification for this is that in the order granting bail involving bailable offences no condition can be imposed and, therefore, the question of violating the bail conditions and consequently cancelling the bail will not arise, the same does not stand to reason. This is because, as can be seen later, the cancellation of bail is not only for violation of the bail conditions alone but also for other reasons. If so, the absence of a provision in this regard is a casus omissus ( a situation not provided for by the statute) and it is doubtful whether the Court can supply or remedy the omission. (Vide Sangeetha Singh v/s Union of India- (2005) 7 SCC 481=AIR 2005 SC 4459 ;Union of India v/s Rajiv Kumar-(2003) 6 SCC 516=AIR 2003 SC 2917; Bharat Aluminium Co v/s Kaiser Aluminium Technical Services Inc. – (2012) 9 SCC 552). But the words “who has been released on bail under this Chapter” occurring in Section 439 (2) Cr.P.C. are wide enough to clothe jurisdiction in the Court of Session and the High Court to cancel the bail granted under Section 436 Cr.P.C. involving a bailable offence.
5. There seems to be some confusion in some quarters regarding what is called “bail condition” and a “condition in the bond”. A bond executed by a person under the provisions of the Cr.P.C. is usually one for appearance or for production of property. In the case of a bond for appearance, the only concern of the Court is to ensure whether the accused is present in Court or is absent. If the accused is absent in a case where the bond was for appearance, the Court is interested only in penalising his absence by forfeiting the bond and imposing the penalty (bond amount) which such person or his surety had undertaken to forfeit to the Government in the event of a breach of the condition for prompt appearance. There cannot be any forfeiture of the bond or levy of penalty for any breach of the other bail conditions such as reporting before the Investigating Officer, prohibiting the commission of offences while on bail etc. which get incorporated in the bond by virtue of the statutory direction in section 441(2) Cr.P.C. Where the bail bond is for appearance and the Court has imposed certain conditions like reporting before the investigating officer or that the person shall not commit any offence while on bail, it is impermissible for the Court, in the event of a default, to treat the bail bond as forfeited and proceed to recover the bond amount as penalty by recourse to Section 446 Cr.P.C. The Court can invoke Section 446 only upon the non-appearance of the accused who had executed a bond for his appearance. For a breach of the other bail conditions (excluding the condition for appearance) the remedy available to the Court is to cancel the bail. Without cancelling the bail, it is not possible for the Court to order arrest of the person who is on bail.
6. As already stated, a person who is on bail in a case is in the constructive custody of the Court through the surety. A Police Officer is not entitled to meddle with the liberty of such a person or even arrest him on the ground that he has committed breach of the bail conditions. It is only the Court which granted him bail which can under Section 437 (5) Cr.P.C. or a superior Court under Section 439 (2) Cr.P.C.  direct that such person shall be arrested and shall be committed to judicial custody. Such an order pre-supposes an order cancelling the bail and that too after hearing him on the alleged breach of the bail conditions. Even in the case of a bail granted by a police officer in a non-bailable offence, if the accused commits breach of any of the bail conditions, it is not open to the police officer either to arrest the accused or to take any other action against the accused for breach of the bail conditions. The Court alone can take action for the same. For cancelling the bail, we have only the Judge-made grounds enumerated through judicial decisions. Some of the well accepted grounds are;-
7. the accused who was enlarged on bail, has misused the freedom granted to him by indulging in similar criminal activity.
8. the accused has disobeyed the bail conditions which were imposed by the Court.
9. the accused has interfered with or imperiled the smooth course of investigation.
10. the accused has attempted to tamper with the evidence or has attempted to influence or intimidate the prosecution witnesses.
11. the accused is likely to escape into another country.
12. the accused attempts to make himself scarce by going underground or by becoming unavailable to the Investigating Agency.
13. The accused attempts to place himself beyond the reach of his sureties.

(vide Devidas v/s State of Kerala – 1979 KLT 642; Raghubir Singh v/s State of Bihar- (1986) 4 SCC 481=AIR 1987 SC 149; Mehboob Dawood Shaikh v/s State of Maharashtra (2004) 2 SCC 362=AIR 2004 SC 2890)

I know of more than three dozens of rulings by the Apex Court itself where either Section 437 (5) or 439 (2) Cr.P.C. was invoked for “cancellation of bail”. The following decisions may be seen:-

Hence, the proposition of law laid down in the reported decision does not appear to be correct. Section 439 (2) Cr.P.C.  invoked by the Sessions Judge for cancelling the bail of the Ist accused was indeed the correct provision of law to be invoked. Of course, the question whether the cancellation of the bail was justified or not in the case under the consideration of the High Court,  is a different question.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act.