Submitted by: Aditi Banerjee (2225)
Submitted to: Ms. Preety Anand (Asst. Professor of
Law)
Subject: Criminal Law-II
CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA
• The term Bail is not defined in Criminal Procedure Code,
however, this term, in the most common sense, indicates that
the accused is set free from jail against a kind of security which
is given by the accused to the court that he will attend the
proceedings in court against the accusations made upon him
and include personal bond and bail bond.
• The sections 436 to 439 of the Criminal Procedure Code deal
with the concept of Bail.
• Under bailable offences, bail is claimed as a matter of right.
While, under non-bailable offences, bail is a matter of
discretion.
• As per Section 439(2) of the Code of Criminal Procedure, a High
Court or Court of Session may direct that any person who has been
released on bail under Chapter XXXIII (i.e., relating to bail) be
arrested and commit him to custody.
• If an accused who has been released on bail attempts to obstruct the
smooth progress of a fair trial or tries to jump bail and to abscond or
to run away to a foreign country, it would be just and reasonable that
his bail is cancelled and he is arrested and committed to custody.
• A person admitted to bail by the High Court could be committed to
custody only by the High Court. Similarly, a High Court has power
to stay bail order passed by Session Courts, if it thinks appropriate to
do so. A Court of Session can cancel the bail granted by itself and
cannot cancel a bail 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.
• The Supreme Court has also power to cancel bail allowed by the
High Court if there is a wrong exercise of discretion by the High
Court. (Mahesh Kumar v. State of Bihar)
• When the person on bail is found tampering with the evidence.
• When the person on bail commits similar offence or any heinous
offence.
• When the person on bail has absconded.
• When the person on bail is terrorizing the witness.
• When the High Court found that there was a wrong exercise of
judicial discretion to grant the accused bail.
• When the circumstances were proved that the accused has misused
the liberty granted to him.
• If the life of the accused person on bails itself be in danger.
• The case law produced by various Indian courts establish that
cancellation can be ordered only on stronger grounds.
• Public Prosecutor v. George Williams is an important judgement,
where the Madras High Court had pointed out five cases for bail
cancellation.
• The power of the Court under the section to cancel bail can be
invoked either by the state itself or by any aggrieved party or even
suo motu.
• Where prosecution was unable to establish that the accused were
tampering with the investigation, and the facts also showed that the
prosecution no more required the presence of the accused for further
investigation, the application was dismissed. (State of Maharashtra v.
Kirti V. Ambani)
• The High Court refused to cancel bail where there was no specific
proof of any threat to or instance of tampering of evidence. (Karan
Singh v. State of Rajasthan)
• 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 cancellation of bail, the court has ample power to exercise
discretion. But no guidance is given by the statutes as to when
and how it is to be exercised.
• Nevertheless, the power is to be cautiously used in due
consideration of facts and circumstances of the case. The
power in this regard under section 439(2) of the CrPC is quite
wide.
• The “discretion, when applied to a court of justice, means
sound discretion guided by law. It must be governed by rule,
not by humor; 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”.
• Very cogent reasons are necessary for cancelling the bail
already granted.
• 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 trail”. Therefore, cancellation of bail should be
resorted to only in rarest of there are cases where the accused
on bail has done something wholly against the sanctity of legal
provisions of bail.
