Bail Cancellation

ज़मानत निरस्तीकरण / रदद्गी
Like most things in life, there is an ever present duality in the criminal justice process. Being Indians, we are aware of Hindu culture and mythology. Hence we can relate to this concept very well. There is a never ending dialectic in legal philosophy between the right of the accused to be presumed innocent until proven guilty and the need of the complainant(s) or victim(s) for a fair trial, uninfluenced by powerful or nasty (or both) accused persons. Bail is a legal provision which has great potential to provide mischievous or criminal elements an opportunity to influence the course of a trial in all the wrong ways. Sometimes people are bailed out and they misuse their freedom. Bail cancellation is the most obvious post facto way in which such abuse can be curtailed.

Different judges and benches have different views and ideologies in terms of their degree of concern for the rights of victims and accused. (All of us are also keenly aware that many forces which try to successfully or unsuccessfully influence judicial outcomes operate in our country legally and illegally.) General trends can also be discerned, arguably. The pendulum keeps swinging from the side of the accused to the side of the complainants. Earlier it was more on the side of the accused due to the absence of any credible checks on corruption in law enforcement. Now accused persons have to work their way through or around a powerful media and public opinion. This is achieved in various ways which are discussed in various other places on this website.

Bail can be cancelled after being granted. Bail cancellation is a provision which is included in sections 437(5) and section 439(2) of the Criminal Procedure Code. This is usually possible only under such circumstances when the conditions which are set by the judge who granted bail have been violated by the accused. However, there can be any number of other circumstances under which this may be done. Such circumstances are not listed down anywhere. This is decided by judges keeping the facts and circumstances related to the crime and its aftermath in mind. Bail cancellation is just another one of an innumerable variety of things which are decided by courts in India by looking at the totality of facts and circumstances in the matter at hand. This is a fairly common legal concept, derivable intuitively by any thinking person.

Bail does not get automatically cancelled if an accused person violates his bail conditions. The prosecution side has to apply for cancellation of bail in the appropriate legal forum for such action. The Supreme Court had earlier taken the view that refusal to grant bail on the one hand, and cancellation of bail already granted on the other hand are two very different things, and should be treated as such. A double bench of the SC (A.S. Anand and M.K. Mukherjee) stated in Dolat Ram vs. State of Haryana, JT 1995 (1) (SC) 127: (1995) 1 SCC 349: (1994) Supp 6 SCR 69: (1994) 4 SCALE 1119 that "Rejection of bail in a non-bailable case at the initial stage and the cancellation of the bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. The High Court it appears to us overlooked the distinction between the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."(sic)

This view was partly contradicted by another Supreme Court judgement made by Markandeya Katju and Gyan Sudha Mishra in 2011. In a matter related to a fake encounter, Katju authored a judgement laden with emotions and quotes from Shakespeare and Ved Vyas on behalf of the bench of which he was a part. The operative part of the judgement in the present context is as follows, "However, we are of the opinion that that is not an absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/revisional Court."(sic) (Prakash Kadam and ors. vs. Ramprasad Vishwanath Gupta and ors., AIR 2011 SC 1945). Here, the bench in the present case is referring to the rule laid down by Anand and Mukherjee when they say "…we are of the opinion that that is not an absolute rule…". Both judgements are being used as precedents by lower courts today since they were both made by two judge benches.

It is sometimes very difficult for the prosecution or the complainant(s) to obtain cancellation of bail already granted. Lt. Gen. Tejinder Singh has applied for cancellation of bail granted to Gen. V.K. Singh in the criminal defamation case filed by the former. He is unlikely to get a favourable order, since this is a private case and the allegation has not been accepted to be prima facie correct. Sanjeev Nanda's bail in the BMW case was not cancelled inspite of clear misdemeanour by his lawyer R.K. Dewan. Manu Sharma's interim bail was cancelled by the Delhi High Court after one of the prosecution witnesses vanished, but he later managed to get regular bail. This was in the Jessica Lal murder case. CBI is trying to get Sreesanth's bail in the IPL T20 spot-fixing case cancelled with no success so far. Shakeel Noorani filed an independent petition for cancellation of bail granted to Sanjay Dutt in the Bombay blasts case. The petition was rejected.

It is worth noting in the Sanjay Dutt case above that a third party which is not a part of the prosecution, nor a complainant may appeal for cancellation of bail in a criminal case. This is one aspect of criminal cases where such interventions are allowed. There are apparent contradictions in Supreme Court judgements in this regard. Justice P. Sathasivam and B.S. Chauhan stated in the above case that Noorani needed to file an FIR if he wished to resolve his financial dispute with Sanjay Dutt, instead of taking this route. They were also reported in the media (The Hindu, Chennai) as having said that “How is the producer involved in this (Mumbai blast) criminal case? You file an FIR. We are dismissing your petition.” On the face of it, this seems to fly against what was said in Rajpal vs. Jagvir Singh, 1979 All Cr Rep 514. (Jai, J.R., Bail Law and Procedure, Universal Law Publishing Company, 2012, Delhi) Details of the judgment quoted by him in support of this weighty contention have not been supplied by Jai in his work. It might be mentioned in the context of Noorani's bail cancellation application that sometimes the motives of litigants are not entirely transparent. This happens in all sorts of cases including PILs.

In R.Rathinam vs State By DSP, District Crime, [(2000) 2 SCC 391], it was held by a division bench of the Supreme Court that a third party can file an application for cancellation of bail in such a way the third party is reminding the court of the need to exercise its own power to start suo motu proceedings in this regard. The judges were K Thomas and D Mohapatra. Thus it is now the law that third parties can file such applications.

Sometimes bail cancellation occurs or appears to be likely. You might be aware of the current 2G case in which CBI is trying to get Sanjay Chandra's bail cancelled, after he was allegedly caught discussing his case with the public prosecutor A.K. Singh. There are media reports which suggest that CBI has a bulletproof case in this matter. In the Uphaar cinema case the Ansals were accused of stealing and/or meddling with court documents and their bail was cancelled by the Supreme Court as a consequence (they were later on accused of bench-hunting by the aggrieved parties, when they tried to get their bail cancellation overturned and did things which amounted to seeking a particular bench). Vijay Sai Reddy obtained bail in the Jaganmohan Reddy disproportionate assets case from the CBI trial court. The Andhra Pradesh High Court later cancelled his bail. As recently as the month of May in the current year, R.K. Agrawal's bail in the 2012 Rajya Sabha election cash-for-votes scam (Jharkhand) has been cancelled. Something similar happened to S. Gopalakrishnan and V.S. Prabhakara Gupta in the Satyam Infoway corporate fraud case in which B. Ramalinga Raju is the main accused.

If you manage to get anticipatory bail in your 498a case (u/s 498a/406/34 or as the case may be) then make sure that you follow all the conditions imposed upon you by the court scrupulously. Most important of all, do not contact or try to contact your accuser/accusers directly or indirectly. In fact, do not even mention her/them by name except in legal documents. Also, do not try to contact the public prosecutor at any time whatsoever before, during or after your trial. As far as the investigating officer is concerned, he will contact you himself whenever there is a need to do so. Do not try to initiate contact with him except under extraordinary circumstances. Another thing is that you need to make sure that the IO can contact you at all normal times. Above all remember the principle that an accused person should not try to influence the outcome of the trial in any manner except through his legal defence.

Bail is given in bailable cases as a matter of right. However it can be cancelled if the accused person is found to have tried to unduly influence the course of the case. Note that a magistrate can cancel bail granted by himself in a non-bailable matter, but he has no power to do so in a bailable case. Bail in such matters can only be cancelled by a sessions court or a higher court.

Another thing to be noted is that bail granted by a court can only be cancelled by a court which is equal or superior to it in the judicial hierarchy. This is applicable to all sorts of matters –bailable as well as non-bailable– with the proviso which is mentioned in the previous paragraph. A sessions court cannot cancel bail granted by a high court, and a high court cannot cancel bail granted by the Supreme Court. A single judge of the Supreme Court cannot cancel bail granted by a double bench of the same court. This last is applicable to high courts also.

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Published by Manish Udar

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Last updated on 4th March 2018
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