Bail Once Granted Must Only Be Retracted In Face Of Grave & Exacerbating Circumstances: Delhi High Court

Reiterating that personal liberty is one of the cherished constitutional freedoms, the Delhi High Court has observed that once bail is granted to an accused pending completion of the Trial, the same must only be retracted in the face of grave and exacerbating circumstances.

Analyzing the difference between an order 'rejecting' an application for bail and an order for 'cancellation' of bail, Justice Subramonium Prasad was of the view that the party challenging bail already given needs to demonstrate, by showing evidence and instances, that the person enlarged on bail has been threatening the victim and may consequently cause personal harm to the victim or her family, is tampering with evidence or influencing prosecution witnesses to the extent that it would vitiate the Trial and lead to a miscarriage of justice.

"Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances," the Court said.

The Court made the following observations:

- An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused.

- Whereas in the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted.

- A Court must tread with utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, should the Court then exercise its jurisdiction in seizing the liberty of an accused undertrial.

- Another reason for the Court to be more circumspect in setting aside an order granting bail is that, it involves review of a well- considered, reasoned judicial order granting bail.

The Court was dealing with a plea filed by a woman seeking cancellation of the anticipatory bail granted to her husband and her in-laws in a FIR registered under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of IPC.

The complainant had alleged that pursuant to her marriage, she was constantly harassed by her in-laws. It was further alleged that all the articles given to her by her parents were taken away from her by her mother-in-law and that her father-in-law attempted to rape her and has outraged her modesty.

Senior Advocate KK Menon appearing for the petitioner submitted that the investigation was not completed and the Respondents, being affluent people were exerting pressure on the police to stall the investigation to be done in a fair and proper manner. 

He also argued that a major portion of stridhan items were not returned by the Respondents and that only a small portion of the articles, jewelry and other possessions were given back.

On the other hand, Advocate Kamlesh Mahajan appearing for respondents submitted that they had joined investigation, prior to the stage when anticipatory bail was given by the Trial Court and were unfailingly appearing before the I.O. as and when summoned.

"The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court's inherent powers given under Section 482 CrPC," the Court said.

The Court added that while dealing with an application challenging the order granting bail, the Court has to see whether the order granting bail was vitiated by any serious infirmity or not.

Upholding the order of the Trial Court, the Court dismissed the petition by observing thus:

"As rightly noted by the learned Additional Sessions Judge while granting bail that if the complainant has any grievance regarding the nature of investigation, it is always open for the complainant to move an appropriate application before the learned Metropolitan Magistrate and it is always open for the learned Metropolitan Magistrate to apply its mind and order for further investigation."

Case Title: CHARU SONEJA v. STATE (NCT OF DELHI) AND ORS

Citation: 2022 LiveLaw (Del) 5

Click Here To Read Order