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INTRODUCTION
There’s a legal provision, Section 439(2) of the Code of Criminal Procedure, 1973 that addresses the cancellation of bail. It gives the High Court or Court of Session the authority to arrest and detain a person released on bail if there are valid reasons. The power of the subordinate courts including Magistrates to cancel a bail comes from section 437 (5) of the CrPC.
Meaning of Bail
‘Bail’ connotes the process of procuring the release of an accused charged with certain offences by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.
The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973. Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of Cr. PC. The provisions relating to bail and bail bonds are mentioned under Section 436-450 of the Criminal Procedure Code.
Cancellation of bail
Under section 437 (5) of Crpc, the Court which has granted bail can cancel it, if found necessary under certain conditions. Per Section 439(2), the Sessions Court, High Court, or Supreme Court can, suo moto, cancel the bail granted to the accused and transfer the accused to custody. Per Section 389(2), an appellate court can also cancel the bail of the accused and order the accused to be arrested and sent to custody.
It’s essential to note that bail can only be canceled based on reasons that arise after it was initially granted. If certain facts were hidden during the bail application or if the accused’s involvement in other criminal cases becomes apparent later, bail may be reconsidered. Additionally, if the accused tries to influence witnesses or obstruct justice in any way, it could lead to the cancellation of bail.
Grounds for Cancellation of Bail
- Violation of Bail Conditions: If the person granted bail fails to comply with the conditions set by the court, such as reporting to the police, attending court hearings, or staying away from certain individuals or places.
- Change in Circumstances: Bail can be canceled if there is a change in circumstances that justifies it. This could include the accused’s behavior, new evidence, or other factors that were not considered when bail was granted.
- New Offence: If the accused is arrested for committing a new offence while on bail for a previous one, this can be ground for bail cancellation.
- Public Safety Concerns: If the accused poses a significant risk to public safety or is a threat to the community, the court may cancel bail to protect society.
- Non-Appearance in Court: If the accused repeatedly fails to appear in court when required, the court may cancel bail due to his non-appearance.
- Sound Judicial Discretion: Courts have the authority to cancel bail if it is deemed necessary in the interests of justice. This discretion should be exercised judiciously and not arbitrarily.
- Interference with Justice: If the accused tries to obstruct the legal process or interferes with how justice is served.
- Avoiding Justice: When the accused attempts to escape or avoid facing the legal consequences of his actions.
- Abuse of Bail: If the person misuses the freedom granted to him by bail for unlawful activities.
- Flight Risk: If it becomes evident that the accused is planning to flee the jurisdiction to avoid prosecution, the court may cancel his bail.
- Misuse of Bail: If the individual uses his freedom on bail for unlawful activities, such as committing another crime or engaging in activities that undermine the legal process.
- Interference with Witnesses: If there is evidence to suggest that the accused is attempting to intimidate or influence witnesses in the case, his bail can be canceled.
- Tampering with Evidence: If there is reason to believe that the accused is trying to destroy or manipulate evidence crucial to the case, this can lead to bail cancellation.
- Other Serious Circumstances: Any situation that makes it unfair to allow the accused to remain free on bail while awaiting trial.
Cancellation of bail application:
It is true that the state did not move to cancel the bail. Although there was no absolute bar to an informant applying for bail to be revoked under Section 439(2) of the CrPC, the considerations that a court weighs in exercising its powers at the request of a private party are, in addition to the factors necessary for the application by the State, to be other factors to be considered are whether the bail order has resulted in a gross miscarriage of justice, whether it is a gross abuse of law and whether there is any real threat or risk to the informant or his party by reason of the accused being at large.
Prafulla Kumar Pradhan v. Pabaneswar Subudhi, 1989 Cri LJ 2016: (1989) 1 OLR 533: 1989 OCR 290