The term bail refers to the judicial release of a person from custody.
The grant, refusal or cancellation of bail is a judicial act. It has to
be performed with utmost care by applying the mind or discretion of the
Indian judiciary through many of its judgments unequivocally upholds
that grant of bail is the rule and refusal of it is an exception. Every
person is presumed to be innocent until the criminal charge against him
is proved in a process of trial. Bail is a substantive right rather than
a procedural one in tune with the citizen’s fundamental right to
The cancellation of bail means putting the presumably innocent but
accused person again in detention in violation of his fundamental right
to liberty, ensured under Article 21 of the Constitution.
Cancellation of bail is possible
Bail is not a guarantee of complete freedom but it is a matter of
conditional freedom. In the event of its violation, the court is quite
competent to cancel it. Therefore the court, which has released a person
on bail, has the authority to cancel the bail and direct the person to
be arrested so as to put him into custody, if the court considers it is
necessary. Such cancellation is done when the accused enlarged on bail
engages in any activity in violation of the conditions stipulated in the
order of bail.
Cancellation of bail is a very delicate legal issue. The legal grounds
for cancellation of bail are intimidating the witnesses, tampering with
the evidence and interfering with the course of justice.
The power to cancel the bail rests with the court and not with the
Police. The court which granted the bail alone can cancel it. However
the Court of a Magistrate has no power to cancel the bail granted by the
Police. The High Court (HC) or the Court of Session has power to cancel
such a bail.
Cancellation of already granted bail is a more difficult task when
compared to rejection of bail at the stage of application. The former is
more complex a decision for a court to take than the latter. In
cancellation of bail, the court has to review the decision already taken
at the time of granting bail. The cancellation is permissible only when
the freedom made available to the accused on bail is not conducive for
fair trial proceedings. However, a bail granted arbitrarily, illegally
or improperly can be cancelled with ease. In such a case, the
cancellation is not the right choice; rather invoking the process of
appeal is the most appropriate course. Unless there is no valid evidence
to prove that the accused had abused the bail, it is not proper for the
court to cancel it.
If a person enlarged on bail is abusing the liberty granted to him by
violating any of the conditions imposed on him it becomes a fit case for
cancellation. Cancellation of bail can be granted only on reasons known
to law. It involves a review of the decision already made and therefore
it is permissible primarily on the ground of supervening circumstances.
Revision petition on granting bail
It is possible to challenge granting of a bail by a Magistrate in a
revision petition in the High Court. In the application for cancellation
of bail, the logical reasoning that prevails is that the granting of
bail at the stage of its granting was quite proper but the supervening
circumstances made the continuation of bail legally untenable. Whereas
in revision petition what the applicant grieves about is that the
granting of bail itself was not legally tenable.
In the matter of exercise of revision on a bail order, the Supreme Court
and High Court have issued contravening orders. The Supreme Court, in
cases like Amar Nath & Others v State of
Haryana (1977 AIR 2185),
Madhulimaye v State of
Maharashtra (1978 AIR 47),
deals with the issue of bail. Relying on the apex court orders the
Allhabad High Court in State of UP v Karam
Singh (1988 CriLJ 1434) held
that an order granting bail is an interlocutory order and hence it
cannot be challenged under exercise of revision in a Sessions or High
Court. But the Bombay High Court, relying on them, decided the contrary
in R Shakuntala v Roshan Lal
(1985 CriLJ 68 (Bom)). Some commentators consider the Bombay High Court
order is more appropriate.
The issue of cancellation of bail is only an incidental matter in a
criminal case. Therefore the standard required to prove a case relating
to bail is ‘preponderance of probabilities’ and not ‘beyond reasonable
doubt’ unlike as in other criminal matters.
Cancellation: An exercise of discretion
In cancellation of bail, the court has ample power to exercise enough
discretion. But no guidance is given by the statutes as to when and how
it is to be exercised. However an order of the Madras High Court in
Public Prosecutor v George
Williams (AIR 1951 Mad 1042)
elaborates that the bail granted to an accused can be cancelled when the
person on bail commits the very same offence, hampers the investigation,
tampers with the evidence, runs away to a foreign country, goes
underground/ beyond the control of his sureties or commits any act of
violence against the police/witnesses. In such cases the High
Court/Court of Session can direct any person released on bail be
arrested. Nevertheless the power is to be cautiously used in due
consideration of the facts and circumstances of the case. The power in
this regard under section 439(2) of the CrPC is quite wide.
If the bail is granted by the HC, the Sessions Court cannot cancel it,
unless new circumstances not known earlier crop up during the trial. If
the Court of Session has granted bail to a person, the State can
approach the HC. Even an informant, when there is real threat or risk to
him or his party, has power to move the court for cancellation of bail
under section 439(2) CrPC and the court must take decision considering
whether there is any abuse of the process of the court or gross
miscarriage of justice.
The \”discretion, when applied to a court of justice, means sound
discretion guided by law. It must be governed by rule, not by humour; it
must not be arbitrary, vague and fanciful, but legal and regular\” and
it “must be exercised, not in opposition to, but in accordance with,
established principles of law.\”
Bail cancellation needs cogent reasons
Bail granted once should not be cancelled in a routine or mechanical
manner. Very cogent reasons are necessary for cancelling the bail
already granted. Absence of any post-release misconduct is a compelling
reason to reject an application for cancellation of bail. Even a third
party can apply for cancellation of bail. The HC has ample jurisdiction
to exercise the power suo moto. However mere allegation of threat to
witness should not be utilized as a ground for cancellation of bail. The
court should carefully weigh the acceptability of the allegations and
pass orders as circumstances demand and law warrants. The court cannot
cancel bail on any alien ground not mentioned in the law.
The basic grounds for cancellation are interference with the course of
justice, evasion of due process of justice or abuse of the conditions
granted to accused in any manner. While considering the cancellation
application the question of individual liberty of the accused is to be
put in juxtaposition with the societal concern in the crime at hand. The
latter deserves priority over the former. The law provides great
discretion to the judge considering the bail application. Merits or
demerits of the case should not be highlighted by the court while
granting or refusing bail.
Undue publicity to be avoided
The press must not engage in undue publicity when the application of
bail of a person, howsoever high or low, is in consideration by the
court. It should act with restraint as what are at stake in a bail
application are dignity, reputation and liberty of an individual.
Similarly the court should not make unwarranted comments so as play to
the needs of the gallery.
The object of pre-trial detention of the accused is not to impose
punishment but to subject him to the penal procedures of law. The “bail
is not to be withheld as a punishment, but that the requirements as to
bail are merely to secure the attendance of the prisoner at trial\”.
Therefore granting of bail should be the rule and cancellation of bail
should be resorted to only in rarest of the rare cases where the accused
on bail has done something wholly against the sanctity of legal
provisions of bail.