In India, every individual has a fundamental right assured under Article 21 of the Constitution of India to protect his or her life and personal liberty except according to the procedure established by law. In order to safeguard the society from any jeopardy, the Law of the land provides for the arrest of accused, subsequent detention and custody under arrest. However the principles of bail and personal liberty go hand in hand, the accused person has the right to seek bail in order to get himself released from custody as the Latin maxim “ei incumbit probatio qui dicit” states “the burden of the proof lies upon him who affirms not he who denies”, the principle contemplates that an individual is considered innocent unless proven guilty, and should be treated like one unless proven the contrary. Though in the matters of bail, rejection of bail is different from cancellation of bail.
Bail laws in India are contemplated under Chapter XXXIII, principally under Section 437, 438, 439 of Code of Criminal Procedure, 1973. A brisk description of the aforesaid sections is given hereunder for further reference-
Section 437 of Code of Criminal Procedure, 1973 contemplates that any individual who is arrested or detained in a non-bail able offense, a Court other than the Sessions Court may grant him bail.
Section 438 of Code of Criminal Procedure, 1973 contemplates that the Session Court or the High Court may grant anticipatory bail to a person apprehending arrest.
Section 439 of the Code of Criminal Procedure, 1973 contemplates that the Sessions Court or the High Court can grant bail to a person who has been arrested.
How Rejection of Bail different from Cancellation of Bail
In Baldev Singh v. State Of Punjab & Others, The Punjab-Haryana High Court held, in case, the person to whom the bail has been granted either attempts to interfere with the process of justice or strives in any manner to tamper with evidence or witnesses or threatens witnesses or indulges in any of such similar activities which would hamper smooth investigation or trial, a granted bail can be cancelled. The rejection of bail stands on one footing, but cancelling a bail is a harsh order because it bears the liberty of an individual granted and is not to be lightly resorted to.
The High Court of Jammu & Kashmir in the case of Bushan Kumar & Anr. v. State & Ors., elucidated that the Law relating to measures essential for cancellation of bail that has been already granted and measures for refusal of bail. The court categorically stipulated that the two situations are entirely different
Regarding the Refusal of Bail, reference was made to a case of Siddharam Satlingappa Mhetre v. State of Maharashtra, wherein the Supreme Court of India (hereinafter referred as “Apex Court”) with reference to the refusal of bail discerned that the society has an indispensable interest about grant or refusal of bail because every crime is the offence against the State. The order which is granting or refusing bail must depict an accurate balance between the contrary interests, which are the sanctity of individual freedom and the deep interest of the society, concluding what the need as per the circumstances is. The law of bails dovetails the conflicting interests namely, on the one hand, the necessity of protecting the society from the menace of those committing crimes and consisting the potent of re-committing the same offence while out on bail and on the other hand complete adherence of the fundamental principle of criminal jurisprudence regarding the presumption of innocence of an accused until the accused is found guilty and the sanctity of individual liberty.
Reference was also made to Apex Court’s verdict in the case of Daulat Ram v. The State of Haryana, wherein the court explicated on the characteristics to be taken into consideration while making an order for cancellation of bail and it furthermore held stating that:
In a non bailable case the rejection of bail at the early stage and the cancellation of bail which is already granted, both have to be considered and managed on different basis. The ground on which the cancellation of bail which are broadly illustrative and no exhaustive, are: any such interference or any attempt made to interfere within the due course of administration functioning for justice or any such evasion or attempt made to evade such due course of justice or abusing any of the concession granted to the accused in the bail in any manner. On the basis of material placed on the record before court or the possibility of the accused to be absconding is though another reason for justifying the cancellation of bail”.
In Ankit Sharma v. State of Nct Of Delhi & Another, the Delhi High Court has discerned between the two facets of bail viz. cancellation of bail and rejection of bail. The court has held that the grounds for an order of both i.e., the cancellation & rejection of bail are both different objects, the circumstances of both are distinct. Hence, the court’s approach has to be different while dealing with the two cases. While dealing with a bail application, the objectives of the court is to focus on the violation of conditions of bail. On the contrary, while dealing with cancellation of bail, the court also observes whether actual violation has been performed or not.
In Aslam Babalal Desai v. State of Maharashtra, the Apex Court stated,
“The grounds for cancellation of the bail in Chapter XXXIII are, de hors the merits in the matter, namely, necessity due to the conduct of the accused and abuse of liberty i.e. obstruction of the smooth investigation or suborning witnesses or attempting to tamper the evidence, threatening the witnesses with dire consequences or making or attempting to remove himself beyond the reach of the court to hamper the smooth trial, etc. are independent of the merits in the matter. Cancellation of the bail would be necessitated by the conduct of the accused himself after the release”
In Bashir and Ors. v. State of Haryana, a case directly on the point had arisen. Therein also 8 accused who were prosecuted for the offence under Section 302 read with Section 149 I.P.C. for causing the death of one Sangru. Investigation was not completed even after the completion of 90 days. Thus, the accused (though the bail was initially refused on his merit) was released on bail by exercising the proviso to Section 167(2) of the Code of Criminal Procedure (hereinafter referred as “Cr.P.C.”). On filing the charge-sheet, the Magistrate cancelled the bail and committed the accused to the Sessions Court. Cancellation of bail was questioned here. Ultimately in the appeal, this court held that: An accused of a non-bailable offence may be released by a court on bail, but he shall not be so released if the court appears reasonable grounds to believe that the accused so released, has been guilty of such an offence which is punishable with either death or imprisonment for life, or any of them respectively. The two provisos to the sub-section (1) are immaterial and need not be considered, sub-section (2) to Section 437 stipulates that if the investigating officer (hereinafter referred as “IO”) or the court at any stage while conducting the investigation, inquiry or trial, however, the case may be, has made an opinion that there are no such reasonable grounds to believe the accused has perpetrated a non-bailable offence, but there are adequate grounds for any further inquiry into his guilt, an such an inquiry is pending then the accused shall be released on bail. The sub-section (5) to Section 437 is important. It provides that any court which has released an individual on bail under Sub-section (2), may if it considers it necessary so to do, direct that such person to be arrested and commit him to custody.
In Kaushik Halder v. State of Tripura, the order passed by Chief Judicial Magistrate granting bail to the accused was upheld by the Single Judge Bench comprising “S. Talapatra” which held that the grounds on which the cancellation of bail was not made out in the instant petition. The petition was filed under Section 439 (2) CrPC for cancellation of bail which was earlier granted to the accused as he claimed to be suffering from a psychotic disorder. The petitioner challenged that the accused had murdered his parents and sister, he was not in a sound mental condition; and in case he was out on bail, he would be committing more macabre things. After considering the entire record by the court, it did not find any concrete ground for cancellation of bail. Furthermore, the court relying on the decision of the Apex Court passed in State (Delhi Admn.) v. Sanjay Gandhi, conclude that the cancellation of bail stands on a different footing from the rejection of bail. The court thus held that the following grounds are available in case of cancellation of a bail which is already granted:
- if the accused strive to escape from justice;
- if he attempts to tamper with the evidence;
- if supervening circumstances are sufficient to believe that it would no longer be propitious for conducting a fair trial to allow the accused to retain his freedom during the trial;
- if the order granting bail was without jurisdiction exercised with nullity;
- if there was an unjustified exercise of power by the Magistrate in granting bail.
The court held that in the instant case, no such allegation was made, in fact the accused whose bail was entreated to be cancelled was still languishing under jail custody. The court found, there had no reason to interfere with the impugned order and the petition was, therefore dismissed further held it to be sans merit. Moreover, it was gathered that the petitioner was in need of proper medical intervention for which necessary orders were made and further directions were given to the appropriate Authority.
In the State of U.P. v. Amarmani Tripathi, The Apex Court held as,
It is well settled that the matters to be considered in an application for bail are
- whether there is any prima facie or an such reasonable factor to believe that the accused had committed the offence;
- nature and gravity of the charge imposed on the accused;
- severity of the punishment in the event of conviction under charges imposed;
- danger of the accused absconding or escaping if being released on bail;
- character, behaviour, means, position and standing of the accused;
- likelihood of the offence being repeated by the accused on bail;
- reasonable apprehension of the witnesses being tampered with force; and
- danger, of course, of justice being thwarted by grant of bail [ref. Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)].
While a vague allegation about the accused who may tamper with the evidence or witnesses may not be the ground to refuse bail, when the accused is of such character that his mere presence at large would intimidate the witnesses or if there is any such material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan, with reference to grant or refusal of bail the law is very well settled. The concerned court which is granting bail should exercise its discretion not as a matter of course but in a judicious manner. There is a need to indicate in such orders the concerned reasons for prima facie concluding the reason for which bail was granted particularly where the accused is charged for a serious offence, any such order devoid of such reasons would suffer from non-application of mind. The court which is granting bail should take into consideration, with other circumstances, the following factors also, before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
Grant of bail in a case of non-bailable offence it is the discretion of a court but it has to be exercised in a judicious manner by considering sound judicial principles. Court can surely refuse bail in non-bailable offences if in the discretion of the court a case for granting bail is not made out, having regard to the characteristics, which are well consigned and need not be stated.
In India the Article 21 of the Constitution of India, confers the fundamental right of life and liberty to every citizen of India. The right to bail is not explicitly mentioned under the Constitution of India but it is implied under this article. The right to bail is linked to the conscious of the accused of his right to pursue release on bail, this is further connected with Article 22(1) of the Constitution of India which contemplates that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his/her choice. It is however remaining a subject matter to be scrutinized whether this provision carries with it the right to be provided the services of a legal practitioner at the state cost, particularly in the light of Article 39A of the Constitution which directs the State to provide free legal aid.
In Maneka Gandhi v. Union of India, marked as a major precedence in the history of constitutional law and Article 21 assumed a new dimension wherein the Apex Court for the very first time took the aspect that Article 21 guarantees protection also against legislation (and not mere executive action) and no law can deprive any person of his or her life, or, personal liberty unless it prescribes a reasonable procedure, which is fair and further it would be for the court to determine whether the said procedure is reasonable, fair and just; if not, it would be struck down to be invalid.
The concept of bail is directly linked to the fundamental right conferred by the Constitution of India and thus the matter of its rejection and cancellation requires critical immaculateness in ascertaining circumstances and balancing the probabilities of repercussions while not refraining a person to be deprived of his or her fundamental right.
Rejection of bail is a process which is exercised before the person accused is released out, but the cancellation of bail takes place when the accused is set free on bail and there are reasonable factors to believe the accused to dissipate this opportunity, and it is necessary to cancel the bail and to order for the accused to be apprehended back in the custody.
It is concluded that the difference between the rejection of bail and cancellation of bail could be ascertained on the basis of the circumstances of the respective case. There are no such statutes for adherence which could instigate bail as a matter of right since the very first hearing of the accused being taken into custody, but there are guidelines which are stipulated by the precedents to expedite the delivery of justice.
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