This article has been written by Max Croson, pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Bail is a significant aspect of criminal litigation and is indisputably the most sought after instrument in the court of law. The settled doctrine laid down by the Supreme Court of India is that bail is the rule and jail is an exception. But the provision of cancellation of bail can sabotage this rule and rob the accused of his liberty if the plea can establish cogent reasons for cancellation of bail. So, when the matter of liberty of an accused is at stake, bail is the only way to get it, until the accused is acquitted, or the worst-case scenario, will be coming out on parole (you can fill in the blanks). In this article, we will go through the different principles governing the grant of bail, how these are different from principles governing the cancellation of bail. Moreover, we will also touch upon the extent to which evidence can be perused while dealing with a matter of cancellation of bail. Followed by our main area of contention, i.e. whether courts can reappreciate facts in a plea for cancellation of bail or not.
Principles governing grant of bail
- The nature of the accusation weighing in the gravity and severity of the offence.
- The severity of punishment.
- Taking into consideration the position or status of the accused, i.e. whether the accused. can exercise influence on the victim and the witnesses or not.
- Likelihood of accused to approach or try to approach the victims/witnesses.
- Likelihood of accused absconding from proceedings.
- Possibility of accused to tamper with evidence.
- Obstructing or attempting to obstruct the due course of justice.
- Possibility of repetition of offence if left out on bail.
- The prima facie satisfaction of the court in support of the charge including frivolity of the charge.
- The different and distinct facts of each case and nature of substantive and corroborative evidence.
It must be borne in mind that the factors that need to be considered when dealing with the question of cancellation of bail are different from the above-listed considerations, i.e. for grant of bail.
In Daulat Ram and others Vs. State of Haryana (1995 (1) SCC 349), the Supreme court has held, “Very cogent and overwhelming circumstances are necessary for cancellation of bail. Bail once granted should not be cancelled in a mechanical manner “
Keeping this very observation in view the apex court has adumbrated the following situations as supervening factors that may justify the cancellation of bail. The points listed below are only illustrative and not exhaustive in nature and application.
- Interference or attempt to interfere with the due process of meeting ends of justice.
- Evasion or attempt to evade court proceedings.
- Misuse of the concession granted to the accused by not following the terms agreed while out on bail.
- Possibility of the accused absconding or fleeing to another country.
- Likelihood of actual misuse of bail.
- Likelihood of the accused tampering with the evidence, obstructing the investigation or threatening witnesses.
- Other supervening circumstances which have rendered it no longer conducive to a fair trial allow the accused to retain his freedom by being on bail.
Can bail be cancelled in the absence of supervening circumstances?
It is no doubt correct that cancellation of bail is not limited to the occurrence of supervening circumstances for a court to cancel the bail. In Ash Mohammed Vs. Shiv Raj Singh @ Lalla Babu and another [2012 (4) Crimes 144(SC)], the Supreme Court has stated that there is no defined universal rule that applies in every single case. Hence, in no way one can say for sure that once bail is granted to the accused, it can only be cancelled on grounds of likelihood of abuse of the bail. In light of such observation, a court is empowered to critically analyze the soundness of the bail order. Moreover, it should check its reasoning to avoid delivery of any capricious order while cancelling the bail of an accused, since the liberty of an individual being at stake makes the court all the more accountable for its decision.
In Prakash Kadam and others Vs. Ram Prasad Vishwanath Gupta and another (2011 (6) SCC 189), the Supreme Court has observed, that while considering a matter dealing with cancellation of bail, the Court must consider the gravity and nature of the offence (although not the sole basis to refuse prayer for bail, see SC judgement in Prabhakar Tewari Vs. State of UP), the prima-facie case against the accused, the position and status of the accused. If the allegations levelled against the accused are very serious in nature then his bail may be cancelled even if there has been no misuse of the bail granted to him.
In Nityanand Rai Vs. State of Bihar (2005) 4 SCC 178, the Supreme Court has stated that the grounds considered for cancellation of bail should be those which come into picture after the accused was set free on bail. Moreover, the grounds should be such that it can be easily referred to the conduct of the accused while out on bail.
So yes, the court has inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Some of the illustrative principles are as follows:
- Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.
- Where the past criminal record and conduct of the accused is completely ignored while granting bail.
- Where bail has been granted on untenable grounds.
- Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.
- Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
- When the order granting bail is apparently whimsical capricious and perverse in the facts of the given case.
- Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
This gives rise to a question: Can a court while hearing a plea for cancellation of bail reappreciate the evidence of the case?
In Dinesh M.N. (SP) Vs. State of Gujarat (2008 5 SCC 66), the Supreme court observed that although a court should avoid reappreciation of evidence while granting bail. However when a plea for cancellation of bail is presented before the court, then under Section 439(2) can consider whether irrelevant materials were taken into consideration for granting bail. The reasoning for this is simple. The court dealing with the plea for cancellation of bail may not know as to what extent the irrelevant material weighed with the court for granting bail in the particular matter.
Additionally, in Subodh Kumar Yadav Vs. State of Bihar (2009) 14 SCC 638, the Supreme Court has observed that if a superior court finds that the subordinate court has erred in its decision for granting bail by considering irrelevant material, or non-application of mind, or fails to take note of any statutory bar to grant bail, or if there was improper conduct of proceeding e.g. failure to hear the prosecution/complainant where required. In such cases, the bail is liable to be cancelled.
So it can be deduced that in common parlance the court will not re-appreciate evidence while granting bail. But in cases where the question is raised on the court’s decision for granting bail on the basis of considering irrelevant material on record, only then can the previous evidence be taken into account, to eliminate any discrepancies and reach a favourable decision.
Can bail be cancelled on reappreciation of facts?
The Supreme Court has set a precedent that discourages the practice of cancellation of bail on reappreciation of facts. It has been laid out in Ramcharan Vs. State of M.P (2004 13 SCC 617) where the Apex Court has held, “Bail can be cancelled on the existence of cogent and overwhelming circumstances but not on reappreciation of the facts of the case.” The reason is due to the provision of Section 362 of CrPC which bars a Court from altering or reviewing any case where a judgement or final order has been passed, except for correction of any clerical or arithmetical error. The Apex Court, in case Abdul Basit @ Raju and others. vs. Mohd. Abdul Kadir Chaudhary and another (2014)10 SCC 754, has observed that once a Court finally disposes of the issue in consideration and grants relief of bail to petitioner, therein the Court becomes functus officio and Section 362 of Cr.PC applies, barring the review of the judgment. So, a person cannot seek cancellation of bail in any court on account of reappreciation of facts of the case.
In the case of Virender Kumar Vs. State of Himachal Pradesh and Anr. (Cr. Revision No. 161 of 2019), the High Court of Himachal Pradesh has beautifully explained this concept. The High Court observed in its ruling that, “Cancellation of bail on re-appreciation of same facts by the same Court would amount to review of earlier order. But, cancellation of bail for breach of a condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail. Rather it would be in consonance with and in continuation to the previous order wherein cancellation of bail on breach of condition is inherent, for the reason that bail is granted subject to certain conditions, breach thereof would entail cancellation of the bail.” Furthermore, the Court also stated that modification of conditions imposed at the time of granting bail, after taking into consideration new, additional or other facts, not considered earlier, does not amount to review of a previous order. Especially in cases when the order itself mentions modification of bail conditions, as and when deemed fit by the Court according to the facts and circumstances of the case. This in no way is related to modification or review of the bail order already granted but a consequent order, in consonance with the previous order.
Difference between a plea for cancellation of bail and a plea against the order of grant of bail
One must be wary of a plea for cancellation of bail order vs. a plea challenging the order for grant of bail. Although on the face of it, both situations seem to be the same. However, the grounds of contention for both are completely different. Let’s understand the different conditions in both situations.
In an application for cancellation of bail, the court ordinarily looks for supervening circumstances as discussed above. Whereas in an application challenging the order for grant of bail, the ground of contention is with the very order of the Court. The illegality of due process is questioned on account of improper or arbitrary exercise of discretion by the court while granting bail. So, the crux of the matter is that once bail is granted, the person aggrieved with such order can approach the competent court to quash the decision of grant of bail if there is any illegality in the order, or can apply for cancellation of bail if there is no illegality in the order but a question of misuse of bail by the accused. In Pooran Vs. Ram Vilas and another (2001 (6) SCC 338), the Supreme Court has observed, “The concept of setting aside as unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself, are because of some supervening circumstances warranting such cancellation”
This principle has been reiterated in the case of Venkatesan Balasubramaniyan Vs. The Intelligence Officer, DRI Bangalore (Cr. Appeal No. 801 of 2020) wherein the SC observed that a default bail illegally or erroneously granted under Section 167(2) CrPC can be cancelled under Section 439(2) CrPC.
So it is clear that a court has to exercise its utmost caution while dealing with an application for cancellation of bail. Once the bail is cancelled, it will cause serious prejudice to the individual’s liberty. Thus, it ought not to be taken lightly. As far as reappreciation of facts in cancellation of bail are concerned, it is a well-settled principle that a court cannot do it as long as it is confined to the already dealt facts and material on record. This is to ensure that frivolous applications are not admitted in the court whose main area of contention is seeking to quash the bail order based on previous facts, as it will amount to the review of the previous order. However, there is no embargo on the court to consider the facts and circumstances that come into the picture after the bail has been granted, directly related to the conduct of the accused while out on bail. Such pleas must be allowed if there is serious prejudice to delivery of justice to the victim and should be allowed to raise valid contentions for cancellation of bail.
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