Report No. 268

Chapter - VII

Cancellation of Bail

7.1 Sections 437 (5) and 439 (2) of Cr.P.C. are related to cancellation of bail. The object underlying the cancellation of bail is to ensure fair trial and secure justice for the society by preventing the person accused of an offence who is set at liberty by bail from tampering with the evidence (especially in heinous crimes) or committing further crime; and any delay in cancelling bail would lose all its purpose and significance to the greatest prejudice of the prosecution.171

7.2 There are judgments to the effect that bail once granted, cannot be cancelled in a mechanical manner without considering whether there are any compelling circumstances that have rendered it no longer expedient to allow the accused person to retain his freedom by enjoying concession of bail during trial.172As cancellation of bail deprives the liberty of the person accused of an offence, the court must assign reasons for the cancellation. If the High court fails to indicate any reason for directing the cancellation of the bail, the order cannot be maintained and must be set aside.173 The Supreme Court in Abdul Basit v. Mohd. Abdul Kadir Chaudhary174, summarized grounds for cancellation of bail as

(i) the misuse of liberty by the person accused of an offence by indulging in criminal activity,

(ii) interference with the course of investigation,

(iii) attempts to tamper with evidence or witnesses,

(iv) threatening witnesses or indulging in similar activities that hamper investigation,

(v) likelihood of fleeing to another country,

(vi) attempts to make oneself scarce by going underground or being unavailable to the investigating agency,

(vii) attempts to be beyond the reach of the surety, etc. These grounds are illustrative and not exhaustive".175

7.3 Over the years various factors have been listed in various judgments that justify an order cancelling bail176:

• While on bail the accused commits the very same offence for which he is being tried or has been convicted;
• Accused hampers the investigation of the case;
• Accused tampers with the evidence and threatens the witnesses;
• Accused runs away to a foreign country or goes underground or beyond the control of his sureties;
• Accused commits acts of violence, in revenge, against the police and the prosecution witness;
• It is discovered by fresh evidence that the accused is guilty of an offence punishable with death or imprisonment for life;
• Where it seems imminent that the accused will jump bail;
• When the charge is amended or there is a change of circumstances;
• When the accused in contravention of the bail-bond fails to appear before the court on the date fixed for such purpose;
• If the bail was obtained upon concealment of material facts; and/or
• The superior court finds that the court granting bail acted on irrelevant facts or materials or if there was no application of mind or that there has been manifest impropriety.

7.4 The consideration for cancellation of bail under s. 439(2) Cr.P.C., differ from the consideration applicable for the grant or refusal of bail. However, in a case for cancellation, the Court may delve into assessing considerations behind the grant of bail in the first instance, if it finds the reasons for granting bail to be insufficient177. A bail, granted in a case of private complaint can be cancelled at the instance of the complainant. But when the police has taken cognizance of the offence and the charge-sheet has been submitted in relation to the same, and the public prosecutor is conducting the prosecution on behalf of the State, then the de facto complainant may apply for cancellation of bail178.

Even in a murder trial a private party has locus standi to move for cancellation of bail when the trial court grants bail.179 The power to take back in custody an person accused of an offence who is enlarged on bail has to be exercised with care and circumspection. But the refusal to exercise that wholesome power, will reduce it to a dead letter and will render the courts to be silent spectators to the subversion of the judicial process.180