Is the High Court Right in Re-Affirming that Sections 437 (5) and 439(2) Cr.Pc. are not Provisions for Cancellation of Bail?

In my humble opinion, it is without properly appreciating the distinguishing mechanics behind the processes of “setting aside a bail order,” “forfeiture of bail bond resulting in cancellation of bail bond “ and “cancellation of bail ”, that the High Court of Kerala once again fell into an error in Intelligence Officer, Narcotics Control Bureau Vs. Lijo K. Jose – 2015(4) KLT 981. (“NCB case “ for short ). In paragraph 18 of the NCB case, this is what has been asserted:-

“18. This court had an occasion to consider the aspect as to whether the provisions contained under S.439(2) Cr.PC. are relating to cancellation of bail? Still, this Court is of the view that the said provision contained in the Code of Criminal Procedure is not for cancellation of bail in all matters. The powers granted to Magistrates under S.437(5) Cr.PC and the power granted to the Sessions Court as well as the High Court under S.439(2) Cr.PC are not for cancellation of bail in all circumstances. Of course, when those powers are lawfully exercised within the meaning and spirit of those provisions, it may result in a situation wherein such an order has the effect of an order of cancellation of bail. The impact of orders under the said provision may result in an order which is having an impact of the cancellation of bail. When the legislature does not specifically show that those powers are powers for cancellation of bail, this Court is of the firm view that the said provision may not be made use of in all circumstances, for cancellation of bail.”

(Emphasis supplied)

The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman Vs. State of Kerala – 2015(4) KHC 843 wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.

2. When the Apex Court has unhesitatingly understood the above sections as the appropriate provisions for cancellation of bail, at least in 41 reported cases made mention of by this author in his article titled “ I beg to disagree with the proposition of law laid down in James George @ Basaliyos Marthoma Yakob Pradaman Vs. State of Kerala 2015 (4) KHC 943, it is certainly not open to a lower mortal to stubbornly stick to his personal views in the matter. Even the extracts from the Supreme Court relied on by the learned Judge in NCB case unmistakably state that the above provisions are meant for cancellation of bail. It is pertinent to note that the aforementioned view of the learned Judge in James George (supra) was refused to be followed by another learned judge of the High Court in Mahesh K. alias Battampura Mahesh v/s Station House Officer, Kasargode Police Station and Another-2015 (5) KHC 791 in the light of the decision of a Division Bench ruling of the High Court in Latheef @ Abdul Latheef v/s State of Kerala-2011 (2) KLT 231 wherein it was pointedly held that Section 437 (5) Cr.P.C is the source of power for the Magistrate to cancel the bail granted by the Magistrate under Section 437 (1) and (2) Cr.P.C.
3. In the NCB case, the High Court was mainly considering the question whether the Sessions Judge who had granted bail to certain accused persons for offences, inter alia, involving commercial quantity of narcotic drugs under the N.D.P.S. Act, 1985 allegedly without giving the Public Prosecutor an opportunity of being heard, could itself entertain petitions for cancellation of bail. In my view the learned Judge has rightly concluded that the High Court (superior court) alone could entertain a petition for setting aside the bail order and that approaching the very same court with applications for cancellation of bail, was misconceived. But what is objectionable is certain observations made which are capable of creating confusion in the minds of officers of the subordinate Judiciary.
4. Before proceeding further, it may be profitable to notice the distinction between the following:-
5. i) an order granting bail or refusing (or rejecting) bail;
6. ii) an application for setting aside an order grating bail.

iii) forfeiture of bail bond and resultant cancellation of bond;

1. iv) application for cancellation of

Order granting or refusing (rejecting) bail

5. Depending on the gravity of the offence, stringent provisions, if any, in the special law governing the case, the nature, potential and antecedents of the offender, the duration of custody, if any, and such other relevant factors the Court may or may not grant bail to an accused person either during the stage of investigation, inquiry or trial of the case. This order is not appealable under the Cr.P.C. ( Vide State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and Others – AIR 2003 SC 3224 and Narendra K. Amin (Dr.) Vs. State of Gujarat – (2008) 13 SCC 584 (3 Judges). But in cases where bail is granted by the High Court, appeals are seen filed before the Supreme Court by the State Governments concerned. (Vide para 20 of Narendra K. Amins’ case (supra) and State of Kerala Vs. Raneef - AIR 2011 SC 340) A revision against the grant of bail may also lie. (See Prasad Jacob Vs. State of Kerala -2010 Crl. L.J. 4137 (Kerala) – 2010 KHC 398).

APPLICATION FOR SETTING ASIDE

AN ORDER GRANTING BAIL.

6. When bail has been granted by a Court in a case in which bail ought not to have been granted either due to a legal bar or due to non-compliance with a condition precedent such as mandatory hearing of the Public Prosecutor or by flouting a special provision in the penal statute concerned or due to the extreme gravity of the offence endangering public order or the security of the State, a superior Court, if moved, can set aside the order granting bail and it may virtually have the effect of cancelling the bail. But here, the superior Court is really setting aside and not cancelling the bail order due to reasons which already existed initially at the time of granting bail and not due to any post-bail event.

Forfeiture and the resultant cancellation of the bail bond

7. If the bond executed by an accused person is for appearance, then forfeiture of the bond takes place automatically in view of Forms 45 and 48 of the Second Schedule to Cr.P.C., when such person does not appear before Court on the specified day, unless of course, his absence for the day is excused by the Court under Section 317 Cr.PC. The only legal consequence of such forfeiture, by virtue of Section 446 Cr.PC, is the liability to pay penalty which such person (and his surety, if any) had undertaken to forfeit to the Government in the contract executed by them in Form No. 45 referred to above. In paragraphs 21 and 22 of the NCB case, the learned Judge has observed as follows:-

“21. As per the said provision, where a bond under the Code is for appearance of a person in a case, and it is forfeited for breach of a condition, the powers under S.446A(a) as well as (b) can be invoked. It may not be understood that the breach of that condition which results in forfeiture of the bond and bail bond is not confined to the breach of the condition for appearance only. The wordings of the provision “where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition” clearly indicates that the forfeiture will result even in violation of conditions other than the conditions for appearance also. At the same time, such a forfeiture of a bond under S. 446A should be one executed for the appearance of a person in a case. Therefore, it is evident that in cases wherein an accused who is enlarged on bail, executes a bond for appearance in a case, commits breach of any of those conditions contained in the order granting bail, forfeiture of the bond as well as bail bond is possible. At the same time, in all such cases, it may not be just, in forfeiting the bonds of the sureties also.

22. Let us take a case wherein a condition has been incorporated in the order grating bail that he shall not involve in any offence while on bail. In such a case, even if such an accused who is enlarged on bail through the order happens to become an accused in another case, it will not be just in forfeiting the bond executed by the sureties and asking them to pay the penalty. There can be breach of other similar conditions also. Except the violation of the condition for the appearance of the accused in that case, the sureties cannot be called upon to pay the penalty after forfeiting their bonds. At the same time, on account of the violation of any of such conditions, the bail of the accused happens to be cancelled and in such case, the accused fails to appear before the court in the case, it paves the way for the forfeiture of the bonds of the sureties, and it will ultimately entail in an order for payment of penalty by the sureties also.”

8. If we closely examine Section 446-A Cr.PC it will be clear that there is no warrant for the conclusion that forfeiture of a bond (for appearance) can result from the violation of a condition other than one for appearance. When as per the statutory scheme under the Cr.PC, forfeiture of a bond (for appearance) takes place consequent on a breach of the condition for appearance, there is an automatic cancellation of the bond itself by virtue of Section 446-A Cr.PC, disentitling the accused to be released only on his own bond unless the Police Officer or the Court decides to proceed under the proviso to Section 446-A Cr.PC by releasing him on fresh bail. But the wording in Section 446-A Cr.PC which reads :

“Where a bond under this Code is for appearance of a person in a case and it is forfeited for the breach of a condition” cannot be understood to mean that forfeiture of the bond for appearance can take place even for the breach of any condition other than one for appearance. By virtue of Form Nos. 45 and 48 (unless suitably modified by the High Court under Article 227 of the Constitution of India and Section 477 Cr.PC) which are the Forms to be used for this purpose in view of Section 476 Cr.PC, forfeiture of a bond (for appearance) is contemplated only in cases of non-appearance of the accused and in no other contingency. Form No. 3 prescribed by the High Court under Appendix I to the Criminal Rules of Practice, Kerala, 1982 is also on similar lines as Form No. 48 referred to above. Hence no other mode of forfeiture is contemplated by the Cr.PC. If so, the question of any injustice in asking the sureties to pay the penalty consequent on the accused committing breach of a condition other than one for appearance, does not arise. The learned Judge is not quite right in observing that when a bond for appearance is forfeited for breach of a condition, the powers under Section 446-A (a) and (b) can be invoked. There is no question of the Court invoking either clause (a) or clause (b) of Section 446-A of Cr.PC. Under clause (a) the cancellation of the bond consequent on the forfeiture, takes place automatically. Clause (b) is also not a provision for invocation by the Court. It is really an interdict not to release the person who had committed breach of the condition for appearance. It is the proviso thereto which the Court can invoke in an appropriate case.

9. There is a practice in some Courts to secure the presence of the accused through a warrant of arrest consequent on the forfeiture and resultant cancellation of the bail bond and thereafter enlarging the accused on fresh bond with sureties, without insisting on a fresh application and order for bail. Technically speaking , the said practice cannot be said to be illegal since the earlier order granting bail remains intact even after the bail bond stands cancelled. The situation will be analogous to one where the court orders release of the accused on bail, but he does not execute a bail bond, with the only difference that in such a case the accused is yet to be released.

CANCELLATION OF BAIL

10. Cancellation of bail has to be distinguished from cancellation of a bond for appearance although the consequence of cancellation may be the same so far as the accused is concerned. Just as bail of a person in custody can be granted under Section 437 Cr.PC only on the existence of sufficient grounds, as detailed in paragraph 5 above, cancellation of bail already granted, can only be on grounds mainly attributable to the conduct of the accused at the post-bail stage, such as his misusing the liberty granted to him by attempting to tamper with the evidence or influencing or intimidating the witnesses, or indulging in grave crimes while on bail or placing himself beyond the reach of his sureties by going abroad without the permission of the Investigating Officer or Court or violating any of the bail conditions etc. In other words, the grounds for cancellation of bail should be referable to the conduct of the accused after he has been enlarged on bail. (Vide Nityanand Rai Vs. State of Bihar – (2005) 4 SCC 178 = AIR 2005 SC 2239). When any of the above grounds are present, the Court may resort to the power under section 437(5) Cr.PC if it is the Magistrate or under Section 439(2) Cr.PC if it is the Court of Session or the High Court. The Court which granted bail can itself invoke the appropriate provision for cancelling the bail if an application in that behalf is filed or on its own motion. Just as a Magistrate can have recourse to Section 437(5) Cr.PC and cancel the bail granted by the Magistrate himself, a Sessions Judge or the High Court can similarly exercise the power under Section 439 (2) Cr.PC.
11. Still another instance of cancellation of bail recognized by the Apex Court is where the facts of the case are such that no court would have granted bail, but the inferior Court has wrongly granted bail. If the order granting bail is perverse for the reason that irrelevant material of a substantial nature has been taken into account or relevant material has been omitted from consideration while grating bail, that will be a fit case in which a superior Court would be justified in cancelling the bail. (Vide Dinesh M.N. (SP) Vs. State of Gujarat – (2008) 5 SCC 66 – (3 Judges); Narendra K. Amin (Dr.) Vs. State of Gujarat – (2008) 13 SCC 584 – (3 Judges); Prasad Jacob Vs. State of Kerala – 2010 Crl. LJ 4137 (Kerala). Eventhough the Apex Court has used the expression “cancellation of bail” in such contingencies, really the remedy is against the order grating bail and such order can be set aside (loosely called “cancelled”) only by a superior Court.

12.  This article has been penned on account of the possible confusion which the NCB case may cause in the subordinate judiciary. A persistent obstinacy in dogmatically adhering to a misconceived view can never bring about clarity of the underlying principles of law.

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