[BAIL] Questions & Answers By Justice V. Ramkumar-Cancellation Of Bail-PART-II

Ans. Every person released on default bail granted by the Magistrate under Section 167 (2) Cr.P.C. is, by virtue of the last portion of paragraph (a) of the proviso to Section 167 (2) Cr.P.C., deemed to be released under Chapter XXXIII. So, such default bail can be cancelled either under Section 437(5) by the Magistrate himself or under Section 439 (2) by the Sessions Court or the High Court. (Vide –

Bashir v. State of Haryana (1977) 4 SCC 410 = AIR 1978 SC 55 – Fazal Ali, Kailasam - JJ;

Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1- 3 Judges).

But, bail once granted under Section 167 (2) is deemed to have been granted under Chapter XXXIII of Cr.P.C. and, therefore, merely because a charge sheet has subsequently been filed, is no reason to cancel the bail which will be valid till the conclusion of trial, unless it is specifically cancelled. (Vide –

Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 = AIR 1996 SC 2897 – 3 Judges - A. M. Ahmadi – CJ, B. P. Jeevan Reddy, N. P. Singh - JJ;

Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1 – 3 Judges - A. M. Ahmadi, M. M. Punchhi, K. Ramaswamy - JJ;

Free Legal Aid Committee, Jamshedpur v. State of Bihar (1982) 3 SCC 378 = AIR 1982 SC 1463 - P. N. Bhagwati, Amarendra Nath Sen - JJ.)

A default bail illegally or erroneously granted by a Court of Session under Section 167 (2) Cr.P.C. can be cancelled by the High Court under Section 439 (2) Cr.P.C. (Vide para 10 oVenkatesan Balasubramaniyan v. The Intelligence Officer, D. R. I. Bangalore 2020 (6) KHC 468 – 3 Judges – Ashok Bhusan, R. Subhash Reddy, M. R. Shah – JJ.

Q.7 Can the Magistrate who granted bail under Sec. 436 Cr.P.C. in a “bailable offence”, cancel the bail and by which provision of law ?

Ans. No. Bail granted under Section 436 Cr.P.C. in the case of bailable offences cannot be cancelled by the Magistrate. This is because, unlike Section 437 (5) in respect of non-bailable offence, there is no enabling provision for cancellation of bail in the Cr.P.C. with regard to a bailable offence. But, the Magistrate can forfeit the bond under Section 446 Cr.P.C. if there is failure in appearance. An order for bail in a bailable offence being one granted under Chapter XXXIII Cr.P.C., Section 439(2) Cr.P.C. enables the High Court or the Court of Session to cancel the bail granted to a person under the said Chapter.

Since a provision analogous to Section 439 (2) Cr.P.C. was absent in the 1898 Code, the Supreme Court in Talab Haji Hussain v. Madhukar Purushotham Monde Kar AIR 1958 SC 376 – 3 Judges - N. H. Bhagwati, J. L. Kapur, P. B. Gajendragadkar – JJ, has held that the High Court can cancel the bail granted in respect of a bailable offence, under the inherent power of the High Court, if that is necessary to ensure fair trial. The above decision has been approved by a Constitution Bench in Ratilal Bhanji Mithani v. Asst.Collector of customs, Bombay AIR 1967 SC 1639 – 5 Judges – K. N. Wanchoo – CJI, R. S. Bachawat, J. M. Shelat, V. Bhargava, G. K. Mitter – JJ.

The provision corresponding to Section 436 Cr.P.C. was Section 496 of the 1898 Code where also there was no power given to the Magistrate to cancel the bail in respect of a bailable offence. In Talab Haji Hussain v. Madhukar AIR 1958 SC 376 – 3 Judges - N.H. Bhagwati, J.L. Kapur, P.B. Gajendragadkar – JJ, it was observed that it was an omission by the legislature either due to oversight or inadvertence.

NOTE BY VRK:- One reason for not giving a power to a Magistrate to cancel bail in respect of a bailable offence may be that the only condition which can be imposed in a bailable offence is one regarding the time and place of appearance. If that condition is breached, the Magistrate can take action for forfeiture of the bond which has almost the same effect as cancellation of bail.

Q.8 Is it permissible for the Magistrate to cancel the bail granted by a Superior Court such as the Court of Session or the High Court, consequent on the violation of the bail conditions by the accused at any time after the appearance of the accused during the stage of inquiry or trial ?

Ans. Yes. This question can arise in the following situations:-

a) As per Section 436 (1) Cr.P.C., if any person other than a person accused of a non-bailable offence, is arrested or detained without a warrant by an officer-in-charge of the police station (SHO) or appears or is brought before any Court, such SHO or Court is bound to release him on bail. The wording in Section 436 (1) Cr.P.C. is to the effect that if the offence alleged is a bailable offence, then the person accused of such offence shall be released on bail by the SHO or by the Court. Under Section 437 Cr.P.C the SHO or a Magistrate or a Special Court (other than a Court of Session or deemed Sessions Court) can grant or refuse bail, at different stages to a person accused of a non-bailable offence. After passing an order granting bail with or without conditions and with or without sureties, the actual release from custody will also be made by the SHO or Magistrate or the Special Judge himself. Such release from custody will be after complying with the requirements of Section 441 Cr.P.C by executing a bail bond for such amount as the SHO or the Court may think sufficient. The bail bond in Form No: 45 of the Second Schedule to Cr.P.C. is to be executed between such SHO or Magistrate or Special Judge (on behalf of the Government) on the one hand, and the accused and his sureties, if any, on the other.

b) In the case of the High Court and the Court of Session, the power to grant bail is to be found in Section 439 (1) (a) Cr.P.C. Here, the phraseology of the Section is different from that of Sections 436 and 437 Cr.P.C. Section 439 (1) Cr.P.C. says that the High Court or a Court of Session may direct that the accused person in custody be released on bail. But Section 437 Cr.P.C. provides that a person accused of a non-bailable offence if arrested or detained without a warrant by an SHO or appears (which includes “surrender”) or is brought before the Court, he may be released. A Court “releasing an accused” and a Court “directing release of an accused” are two different things. When the High Court or the Court of Session directs the release of an accused person, the actual release from custody will have to be done by the lower Court (i.e. by the Magistrate or the Special Court or the Sessions Court, as the case may be). Such release can only be after complying with Section 441 Cr.P.C. Very often, the Court of Session or the High Court will specify the bond amount for the accused and the sureties and the satisfaction of the same will be directed to be had by the lower Court. If there are conditions imposed by the Court of Session or the High Court, those conditions also will have to be incorporated in the bond to be executed before the lower Court as provided under Section 441 (2) Cr.P.C. (Vide Mahesh v. State of Kerala 2010 (4) KLT 921 – K. Hema – J )

c) There can be a situation when the Court of Session or the High Court may have to grant bail to an accused in custody in a case pending before those Courts. If the accused is in custody before or after the committal of the case to the Court of Session and if the Sessions Judge is inclined to grant bail to the accused, the Court of Session may directly release the accused on bail. Here, the bail bond itself will have to be executed before the Court of Session and not before the committal Magistrate who has become “functus officio” after the order of committal. In such cases, in the event of any violation of the bail conditions, the Court of Session itself may have to cancel the bail and direct the arrest of the accused and on production before the Court to commit him to custody. Same would be the position of the High Court as well. In the case of the High Court, if bail is granted by the High Court in an appeal or revision or in a petition under Section 482 Cr.P.C. pending before it, the bail bond will have to be executed before the appropriate trial Court.

Case Law on the feasibility of an inferior Court cancelling the bail granted by a superior Court

1. Ali Ahammed v. State of Kerala 1986 KLT 28 - S. Padmanabhan – J – There is an observation in para 11 as –

“Being Courts of superior jurisdiction, bail granted by the Sessions Judge or the High Court cannot be cancelled by the Magistrate”

NOTE BY VRK: The above observation was only a passing remark. That was not a case where the bail granted by a superior Court was being cancelled by an inferior Court. In that case although most of the accused persons were granted anticipatory bail by the Court of Session, all of them were subsequently granted regular bail by the Magistrate himself. It was apprehending that at the time of committal the Magistrate would cancel their bail and commit them to custody by resort to Section 209 (a) and (b) Cr.P.C that the accused persons approached the High Court. The High Court allayed their fears by observing that the provision in Section 209 (a) and (b) was subject to the provisions relating to bail and that at the time of committal there could not be any automatic remand to custody of an accused who is on bail. This position was reiterated by Justice K.T. Thomas in Vikraman v. State of Kerala 1986 KLT 1372.

In Raghuvir Singh v. State of Bihar AIR 1987 SC 149, interpreting similar provision in Section 309 (2) Cr.P.C. Justice O. Chinnappa Reddy also held that Section 309 (2) Cr.P.C does not empower the Court to remand an accused to custody if he is on bail.

2. P.K. Shaji (Thammanam Shaji) v. State of Kerala AIR 2006 SC 100 (K.G. Balakrishnan – J ) – That was a case where the Court of Session while granting bail with conditions, had empowered the Magistrate below to take action for violation in the event of the accused committing any violation of the bail conditions. It was noticing the above empowerment in the bail order that the Supreme Court rejected the contention of the accused that the Magistrate had no jurisdiction to take steps for cancelling the bail granted by the High Court. There is, of course, an observation in paragraph 6 as follows :-

“The plea of the appellant’s counsel is that if the Sessions Court had granted bail, the order of cancellation of such bail should also have been passed by the Sessions Court or by any superior Court and not by the learned Magistrate who is not empowered to cancel it. As a general proposition, the plea raised by the appellant is correct.”

NOTE: - The inferior Court cancelling the bail granted by a superior Court without any authorization, was not in issue in that case having regard to the view taken by the Apex Court.

3. Mahesh v. State of Kerala 2010 (4) KLT 921 (K. Hema – J ) – After referring to the difference in the phraseology of Sections 437 and 439 Cr.P.C, it was held that if any condition in the bail order issued by a superior Court is violated by the accused, it is not necessary for the Magistrate to address such superior Court to cancel the bail and that the Magistrate himself can independently proceed against the accused even if there is no request to cancel the bail.

4. Noushad v. State of Kerala 2016 (1) KLT 775 (Abraham Mathew – J ) – Disagreeing with the view taken in James George @ Basalios Marthoma Yakob Pradaman v. State of Kerala 2015 (4) KHC 943 (Kemal Pasha – J ), it was held that Sections 437 (5) and 439 (2) Cr.P.C empower the Magistrates and Courts of Session respectively to cancel the bail granted to the accused in the light of his post-bail conduct. Since the bail order granted in that case by the High Court had empowered the Sessions Court to cancel the bail in the event of any violation of the bail conditions, the High Court permitted the First Informant victim to move the Sessions Court for cancellation of bail.

5. Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 (P.K. Goswami, V.D. Tulzapurkar – JJ ) – In para 16 the Apex Court compared the power of the High Court and of the Court of Session to cancel bail under Section 498 (2) of the 1898 Code and Section 439 (2) of the 1973 Code and observed that the restriction under the old Code that the same Court (either the High Court or the Court of Session) which granted bail alone could cancel the bail, has been lifted under Section 439 (2) of the 1973 Code. The following observation in para 16 is relevant :-

“In other words, under S.498 (2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under S.439 (2). Under S.439 (2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.”

NOTE by VRK: This means that if there are supervening circumstances during trial like the accused violating the bail condition imposed by the High Court, then the Sessions Court will be justified in cancelling the bail.

6. Talab Haji Hussain v. Madhukar AIR 1958 SC 376 – 3 Judges - N.H. Bagwati, J.L. Kapur, P.B. Gajendragadkar – JJ – That was a case where the condition for appearance in the bail granted to the accused who had allegedly committed a bailable offence, was violated. Thereupon the complainant moved the Magistrate for cancelling the bail granted to the accused. The Magistrate dismissed the application on the ground that there was no power to cancel the bail granted in a bailable offence, unlike in the case of a non-bailable offence. The matter was taken up before the High Court of Bombay where Chief Justice M.C. Chagla and Justice Datar took the view that even if the Magistrate is helpless for want of a power to cancel bail granted under the 1898 Cr.P.C, the inherent power of the High Court under Section 561 A of the 1898 Code (corresponding to Section 482 of the 1973 Code) could be exercised and accordingly the High Court cancelled the bail. On appeal to the Supreme Court the order of the High Court was confirmed observing inter alia that “omission of legislature to make a specific provision in that behalf is clearly due to an oversight or inadvertence and cannot be regarded as deliberate”. The following observation in paragraph 6 are apposite -

“Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption; but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the 'conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial, Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked. In regard to non bailable offences there is no need to invoke such power because S.497 (5) (corresponding to Section 437 (5) of the 1973 Code) specifically deals with such cases. The question which we have to decide in this case is whether exercise of inherent power under S.561A against persons accused of bailable offences, who have been released on bail, is contrary to or inconsistent with the provisions of S.496 of the Code of Criminal Procedure.”

My Conclusion

The difference in the phraseology of Sections 437 and 439 (1) (a) Cr.P.C as noted in Situation (b) above at the beginning of this answer, coupled with the view taken in Mahesh v. State of Kerala 2010 (4) KLT 921 – K. Hema - J, is sufficient to hold that the Court of Session is entitled to cancel the bail granted by the High Court in the event of any violation of the bail conditions, even without any delegation by the High Court to the Court of Session to take action for cancellation. In spite of the observation in Guru Charan Singh (Supra – AIR 1978 SC 179) wherein the Apex Court held that a Court of Session cannot cancel a bail which has already been granted by the High Court, it has been clarified by saying that if new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court, the Sessions Court would be justified in cancelling the bail. The above observation has to be understood in the light of the observation by the 3 Judge Bench in Talab Haji Hussain (Supra – AIR 1958 SC 376) wherein it is held that “if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial, it is a justifiable ground for cancellation of bail”.

Q.9 Should not the bail granted to the accused be cancelled, if he remains absent on the day when witnesses to be examined, are present?

Ans. Yes. The Court can cancel the bail. In State of U.P. v. Shambhunath Singh – AIR 2001 SC 1403 – K. T. Thomas, R. P. Sethi – JJ, the Apex Court observed as follows:-

“We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of Bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the Trial Courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by presiding officers of the Trial Courts and it can be reformed by every one provided the presiding officer concerned has a commitment to duty. No sadistic pleasure in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers can be a persuading factor for grating such adjournments lavishly, that too in a casual manner.”

“If any court finds that the day to day examination of witnesses mandated by the Legislature cannot be complied with due to the non cooperation of accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e., remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the Court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case.” (Vide paras 8 and 13)

Q.10 Is not a prosecution witness turning hostile to the prosecution, a circumstance justifying the cancellation of the bail granted to the accused?

Ans. No. The fact that the prosecution witnesses have turned hostile, cannot by itself justify the inference that the accused has won them over, unless there is reliable material to suggest the same. (Vide State through Delhi Admn. v. Sanjay Gandhi (1978) 2 SCC 411 = AIR 1978 SC 961 - 3 Judges – Y. V. Chandrachud – CJI, S. Murtaza Fazl Ali, P. N. Shingal - JJ).

Part 1: [BAIL] Questions & Answers By Justice V. Ramkumar-Cancellation Of Bail-PART-I