Cancellation of Bail is governed u/s. 437(5) and 439(2) of the Cr.P.C. According to it, any court which has released a person on bail may, if it considers it necessary to do so, directs that such person be arrested and committed to custody. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances.
In Public Prosecutor v. George W, the Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail: 1) where the person on bail, during the period of the bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; 2) if he hampers the investigation, as will be the case if he, when on bail, forcibly prevents the search of places under his control for the corpus delicti or other incriminating things; 3) if he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of the offence in order to remove traces or proofs of crime, etc.; 4) if he runs away to a foreign country, or goes underground or beyond the control of his sureties; and 5) if he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him.
The issue of cancellation of bail can arise only in a criminal case, but as it is only an incidental matter, it is not required to be proved beyond reasonable doubt.
I feel that the offence of murder, when bail is granted. It is difficult to establish grounds for cancellation backed by sources and instances. The burden never shifts but the onus can. Herein the bail is granted on the basis of onus and presumption of innocence. But, when it is required to be cancelled is deprivation of personal liberty of the accused, it has to be beyond reasonable doubt.
Many recent events have shaped this subject. For example, grounds are being substantiated like change in circumstances and addition of grave offenses, differentiation of cancellation and setting aside of bail, supreme court directing HC not to put trial judges on fear because adjudicating in a very casual manner and many more.
When the matter is of serious nature like murder, an accused if influential and sharp minded is more likely to misuse the bail and commit further crimes. We have many examples who fled the country by illegal means. Many of them create new fake identities like Vijay Palande who committed seven offences after he was let out on bail in 2007. He jumped off the parole and HC later in 2013 was pleased to cancel bail on the grounds that discretion of suspending the sentence was misused.
Now it is settled law that any order obtained by fraud is to be treated null and void and limitation to challenge cannot be defined. Very recently, the Calcutta High Court in a revision case upheld an order of cancellation of bail passed by the Sessions Court on the ground that the accused supressed the fact before the Sessions Court that his earlier bail prayer was turned down by the High Court. It is the mandate under the law that the application for bail u/s 439 Cr.P.C. should be filed with an affidavit of the applicant regarding the fact that whether his earlier bail prayer was pending or rejected by the upper court.
The court in this case found that while submitting the bail prayer the petitioner on affidavit stated no application for bail has been either rejected by the High Court or is pending for disposal before the High Court upon which the order of bail was granted by the Sessions Court. If the fact of rejection of bail prayer was not suppressed, the prayer for bail would not have been granted.
Thus, the CASE TRAVEL is also a determining factor in cancellation or granting of bail in murder case.
Apart from violation of bail conditions, the cancellation grounds are closely similar to that of regular bail. The distinction is the leading evidence for possibility of absconding, likelihood of misusing bail, past records. When bail order completely disregard vital points and is capricious, chances are more that bail can be cancelled.
In serious offence like murder, victim security and psychology needed to be considered, herein victim places his/her faith in judiciary and the stakes are of public at large0
There is a divergence from the apex court itself which I felt pertinent to visit, on one hand, it states that supervening circumstances are required and challenging order is different from cancellation and on other hand, cancellation can be sustained on malice/defect within grant of bail order. The second proposition is again reiterated in different fashion in CBI VS Gangi Reddy case. Thus, clarification is required.
| S.No. | Case Name | Relevant Paragraph |
| Deepak Yadav v. State of Uttar Pradesh, 2022 SCC OnLine SC 672 Date: NV Ramana, Krishna Murari and Hima Kohli, JJ Significance: Manner in which cancellation of bail applications to be adjudicated. 302-bail on parity-overturned. | 30. This Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail. 39. Grant of bail to the Respondent No.2/Accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of the Respondent No.2/Accused, nature of crime, material evidences available, involvement of Respondent No.2/Accused in the said crime and recovery of weapon from his possession. | |
| Sk. Farid @ Fariduddin v. The State of West Bengal C.R.R. No. – 1525 of 2018 Calcutta HC Date: 20.04.2023 | The brief fact of the case is that the present petitioner was arrayed as an accused along with others. If the fact of rejection of bail prayer was not suppressed, the prayer for bail would not have been granted. In passing the impugned order Learned Sessions Judge, had correctly opined that suppression of Order of a High Court regarding rejection of pail prayer tantamount to practising fraud upon court. The power u/s 439(2) Cr.P.C. for cancellation of bail granted earlier is discretionary and the present petitioner has adopted several dilatory tactics to vitiate the trial. | |
| State through CBI v. Gangi Reddy., CRIMINAL APPEAL NO. 37 OF 2023 Supreme Court 16.01.2023 | The issue involved in the present appeal is answered in the affirmative and it is observed and held that in a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody |
Subscribe
0 Comments