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GRANT OF BAIL AND CANCELLATION OF BAIL [Latest judgment of the Chhattisgarh High Court in Savita Khande Vs. State of Chhattisgarh dated 27 Jul 2015 authored by Justice Sanjay K. Agrawal.]

Bail
It is quite well settled that the parameter for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the Cr.P.C. can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc.

Bail

It is also well settled that even if two views are possible, once the bail has been granted, it should not be cancelled (See Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13 and Nityanand Rai v. State of Bihar, (2005) 4 SCC 178).

The Constitution Bench of the Supreme Court has considered the scope of power of the High Court under Section 439(2) of the Cr.P.C. in Gurcharan Singh v. State (Delhi Administration) and other, (1978) 1 SCC 118 and catalogued the principles governing the powers of the Courts granting and cancelling bail in paragraph 16 of the report which reads as under:-

“16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498, Cr. P.C. of the old Code. That is to say, even if a Magistrate refuses to grant to bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases.

Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody.

In the old Code, Section 498 (2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub –section (1) to be arrested and may commit him to custody.

In other words, under Section 498 (2) of the old Code, a person who has 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, in lifted in the new Code under Section 439(2).

Under Section 439 (2) of the new Code High Court may commit a person released on bail under Chapter XXXIII by an Court including the Court of Section 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 arises during the progress of the trial after an accused person has been admitted to bail by the High Court.

It, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Session Judge it certain new circumstances have arisen which were not earlier known to the State, and necessarily, therefore to that Court. The State may as well approach the High Court being the superior Court under Section 439 (2) to commit the accused to custody.

When however, the State is aggrieved by the order of the Session Judge grating bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Session Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.”

Similarly in the matter of Puran vs. Rambilas and another, (2001) 6 SCC 338 Their Lordships of the Supreme Court has held that the concept of setting aside, unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that accused has misconducted himself or because of some supervening circumstances warranting such cancellation.

Quite recently, their Lordships of the Supreme Court in the matter of Abdul Basit alias Raju and others vs. Mohd. Abdul Kadir Chaudhary and another, (2014) 10 SCC 754 considered all its earlier judgments on the issue and pointed out distinction between review/recall of order granting bail from cancellation of bail order and have held that the Court granting bail cannot review its order on the ground of it being illegal, unjustified or perverse in view of express bar contained in Section 362 of the Cr.P.C.

[The above discussion on Bail is extracted from a latest judgment of the Chhattisgarh High Court in Savita Khande Vs. State of Chhattisgarh dated 27 Jul 2015 authored by Justice Sanjay K. Agrawal.]

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