Cancellation of Bail in India: Concept and Laws

This article on ‘Cancellation of Bail in India: Concept and Laws’ was written by Mohammed Zaid Alam, an intern at Legal Upanishad.

Introduction

Bail is a legal concept that allows an accused person to be released from custody while awaiting trial. In India, the Code of Criminal Procedure, 1973 governs the law relating to bail. The granting of bail is based on the principle that an accused is presumed innocent until proven guilty. However, there are circumstances where bail can be cancelled if certain conditions are met.

The above topic will cover the grounds for the cancellation of bail in India. It will discuss the specific sections of the Code of Criminal Procedure, 1973 (CrPC) that outline these grounds. The summary will provide an overview of the circumstances under which bail can be cancelled, including the violation of bail conditions, a commission of a new offense, interference with witnesses or evidence, absconding or flight risk, and posing a threat to society. It will emphasize that the cancellation of bail is a discretionary power of the court and is based on the individual facts and circumstances of each case.

Background on Bail in India

In India, bail allows the temporary release of an accused person from custody while awaiting trial. Bailable offenses grant the accused an automatic right to bail, while for non-bailable offenses, bail is granted at the court’s discretion. Factors such as the nature of the offense, the accused’s background, flight risk, and interference with the investigation are considered.

Bail can be regular, anticipatory, or interim, with conditions like surrendering passports or reporting to the police. However, bail can be denied if it goes against the interests of justice or if there is a risk of flight or interference. The grant or denial of bail is determined on a case-by-case basis. Bail aims to ensure the accused’s participation in their defense and prevent undue hardship, while also protecting the interests of justice.

Grounds for cancellation of bail

In India, the cancellation of bail can occur under certain circumstances, as specified in the Code of Criminal Procedure, 1973 (CrPC). The grounds for cancellation of bail are outlined in Section 437(5) and Section 439(2) of the CrPC. These sections provide the following grounds for the cancellation of bail:

1. Violation of bail conditions: Section 437(5) states that if the accused violates any of the conditions imposed by the court while granting bail, the bail can be cancelled. These conditions may include restrictions on travel, contact with witnesses, or engaging in further criminal activity.
2. Commission of a new offense: Section 439(2) allows for the cancellation of bail if the accused is subsequently charged with committing a new offense while on bail. This provision reflects the importance of ensuring that individuals who are granted bail do not engage in further criminal behaviour.
3. Interference with witnesses or tampering with evidence: If there is evidence or reasonable belief that the accused is attempting to influence or intimidate witnesses or tamper with evidence, the court can cancel the bail. Such actions can undermine the fairness and integrity of the judicial process.
4. Absconding or flight risk: Section 437(5) enables the cancellation of bail if the court has reason to believe that the accused may abscond or flee the jurisdiction to evade trial. This ground ensures that the accused remains present during the legal proceedings.
5. Threat to society: Section 437(5) also allows for the cancellation of bail if the court finds that the accused poses a threat to society. This ground considers factors such as the seriousness of the offense, the potential harm to others, and the likelihood of the accused committing further offenses.

It is important to note that the cancellation of bail is a discretionary power of the court and is exercised based on the specific facts and circumstances of each case. The court considers the grounds mentioned above, as well as the interests of justice and the overall objectives of bail, in deciding whether to cancel the bail order.

Procedure for cancellation of bail

The procedure for cancellation of bail varies depending on the jurisdiction and the specific circumstances of the case. Generally, the following steps are involved:

1. Filing of an application: The prosecution or any aggrieved party can apply to the court that granted the bail, seeking cancellation of the bail order. The application should include relevant grounds and supporting evidence.
2. Notice to the accused: Once the application for cancellation is filed, the court provides notice to the accused and allows them to present their arguments in opposition to the cancellation.
3. Hearing: The court schedules a hearing where both the prosecution and the defense present their arguments. The court considers the facts and circumstances of the case, the grounds for cancellation, and any counter-arguments presented by the accused.
4. Decision: Based on the arguments and evidence presented, the court decides on whether to cancel the bail or uphold it. The court may consider the nature of the offense, the likelihood of the accused fleeing or interfering with the trial, and the interests of justice in making its decision.

Case laws related to the cancellation of bail

Several notable case laws have shaped the jurisprudence surrounding the cancellation of bail in India. Some important cases include:

1. Siddharam Satlingappa Mhetre v. State of Maharashtra (2011): The Supreme Court held that bail can be cancelled if there is a prima facie case of the accused committing an offense while on bail.
2. State of Rajasthan v. Balchand (1977): The Supreme Court established that bail can be cancelled if the accused abuses the liberty granted and indulges in activities that undermine the purpose of bail.
3. P. Chidambaram v. Central Bureau of Investigation (2019): This case highlighted the importance of considering the seriousness of the offense and the role of the accused in deciding whether bail should be cancelled.

Factors considered in cancellation of bail

Courts consider several factors when deciding whether to cancel bail, including:

1. Nature and gravity of the offense: The severity of the alleged offense and its impact on society are crucial considerations.
2. Previous criminal record: The accused’s criminal history, particularly if it involves similar offenses, may influence the decision.
3. Flight risk and the likelihood of absconding: If there are indications that the accused may try to evade the trial, bail can be cancelled.
4. Interference with witnesses or tampering with evidence: Any attempts by the accused to obstruct justice can lead to cancellation of bail.
5. Public safety: If the accused poses a threat to the safety of the public or specific individuals, bail can be cancelled to protect society.

Importance of bail in India

Bail plays a significant role in the Indian criminal justice system and holds several important implications:

1. Presumption of innocence: Bail upholds the fundamental principle of “innocent until proven guilty.” Granting bail allows individuals to remain free while awaiting trial, affirming their presumption of innocence and ensuring their right to liberty.
2. Access to legal representation: Bail enables accused persons to actively participate in their defense. It allows them to consult with their lawyers, gather evidence, and prepare their case effectively.
3. Reduced pretrial detention: Granting bail helps alleviate prison overcrowding and reduces the burden on the criminal justice system. It allows individuals who may eventually be acquitted to remain in society instead of being held in custody for an extended period without a conviction.
4. Protection against unjust or arbitrary arrests: Bail provides a safeguard against wrongful arrests and protects individuals from potential abuse of power by law enforcement agencies. It ensures that arrests are made only when necessary and that individuals are not detained unnecessarily.
5. Social and familial ties: Bail allows accused individuals to maintain their social and familial connections, minimizing the negative impact on their personal and professional lives. This is particularly important for individuals who may have responsibilities or obligations outside of the criminal justice system.
6. Preventive measures: While bail is granted to the accused, certain conditions may be imposed to ensure compliance with the law and prevent potential harm to society. These conditions can include regular reporting to the police, restrictions on travel, or prohibitions on contacting specific individuals.

However, it is important to strike a balance between granting bail and protecting public safety and the interests of justice. In cases where there is a significant risk of flight, witness tampering, or threats to public safety, bail may be denied or stringent conditions may be imposed.

Conclusion

In conclusion, bail is an essential component of the Indian criminal justice system, ensuring the presumption of innocence and protecting the rights of the accused. It allows individuals to actively participate in their defense and reduces the burden on prisons. However, bail can be cancelled if bail conditions are violated, new offenses are committed, witnesses or evidence are tampered with, there is a flight risk or a threat to society exists. The cancellation of bail is at the court’s discretion and is crucial for maintaining the integrity of the legal process. Overall, bail plays a vital role in promoting fairness and upholding the principles of justice in India.

References

• Let’s Think Legally, Bail: Definition, Type, Procedure Of Getting Bail, Cancellation Of Bail, Legal Service India, available at: https://legalserviceindia.com/legal/article-7559-bail-definition-type-procedure-of-getting-bail-cancellation-of-bail.html#:~:text=Section%20437(5)%20%5B11,bail%20or%20other%20supervening%20circumstances.
• Max Corson, Cancellation of bail: all one needs to know, iPleaders Blog, 17 August 2021, available at: https://blog.ipleaders.in/cancellation-bail-one-needs-know/
• Ashok KM, Section 439(2) CrPC – Bail Cannot Be Cancelled Merely For Any Perceived Indiscipline By Accused Before Granting Bail : Supreme Court, Live Law, 14 November 2022, available at: https://www.livelaw.in/top-stories/supreme-court-bail-perceived-indicipline-cancellation-of-bail-bhuri-bai-vs-state-of-madhya-pradesh-2022-livelaw-sc-956-214062