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 court.
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 liberty.
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 the power to move the court for cancellation of bail under section 439(2) CrPC and the court must take a 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 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."
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. The 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 the 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.
The author, now with Thrissur Bar, can also be reached at his email firstname.lastname@example.org