Final Draft:

“Cancellation of Bail”

Submitted by: Aditi Banerjee Roll

No.: 2225 Semester: 4th
Sem, BBA LLB (H).
Submitted to: Ms. Preety Anand
(Faculty of Criminal Law-II)
This synopsis is submitted for the partial
fulfilment of course in Criminal Law-II
for the completion of BBA LLB (H)
course.

CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA
 ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who
gave their support and helped me to complete this project.

First of all, I am very grateful to my subject teacher Ms. Preety Anand without the kind
support and help of whom the completion of the project would have been a herculean task for
me. She took out time from her busy schedule to help me to complete this project and
suggested me from where and how to collect data.

I acknowledge my family and friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to convey most sincere
thanks to my faculties for helping me throughout the project.

Thereafter, I would also like to express my gratitude towards our seniors who played a vital
role in the compilation of this research work. I would also like to express my gratitude
towards the library staff of my college which assisted me in acquiring the sources necessary
for the compilation of my project.

Last, but not the least, I would like to thank the Almighty for obvious reasons.

Aditi Banerjee

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 DECLARATION

I hereby declare that the work reported in the B.B.A. LL.B. (Hons.) Project Report entitled
“Cancellation of Bail” submitted at Chanakya National Law University, Patna is an authentic
record of my work carried out under the supervision of Ms. Preety Anand. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

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 Table of Contents

ACKNOWLEDGEMENT.........................................................................................................1

DECLARATION.......................................................................................................................2

RESEARCH METHODOLOGY...............................................................................................5

AIMS AND OBJECTIVES....................................................................................................5

HYPOTHESIS........................................................................................................................5

SCOPE AND LIMITATION.................................................................................................5

METHOD OF RESEARCH...................................................................................................5

SOURCES OF DATA............................................................................................................5

RESEARCH QUESTIONS....................................................................................................5

METHOD OF DATA COLLECTION...................................................................................5

Chapter 1: INTRODUCTION....................................................................................................6

Chapter 2: The Concept of Bail.................................................................................................8

Chapter 3: Cancellation of Bails..............................................................................................11

Chapter 4: Grounds for Cancellation of Bail...........................................................................13

Chapter 5: Application for Cancellation of Bail......................................................................15

Chapter 6: Cancellation of Bail: An Exercise on Discretion...................................................17

Presence of Cogent Reasons for Bail Cancellation..................................................................19

Chapter 7: Conclusion..............................................................................................................20

BIBLIOGRAPHY....................................................................................................................21

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 RESEARCH METHODOLOGY

AIMS AND OBJECTIVES

1. To study about the cancellation of bail under Cr.P.C., 1973.

HYPOTHESIS
The researcher is of the view that for cancellation of bail, the court has to consider the gravity
and nature of the offence, etc. Therefore, the court has ample power to exercise discretion.

SCOPE AND LIMITATION

 The resources on which the researcher resorts for data and information collection is
limited.
 There is time restraint which bounds the researcher.
 And, this research is limited to a particular area.

METHOD OF RESEARCH
 The methodology adopted for this research work is traditional i.e., doctrinal and non-
doctrinal.

SOURCES OF DATA
 The researcher focuses on obtaining information from both the available sources; they
are (1) primary sources of data, (2) secondary sources of data.
 Primary sources of data include first-hand information available like journals, district
plan goals, etc. and secondary sources include magazines, journals, etc.

RESEARCH QUESTIONS
The study seeks for the answer of following research question.

 What is the concept of bail?

 What are the grounds for cancellation of bail?
 Who can apply for cancellation of bail?

METHOD OF DATA COLLECTION

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  For the purpose of research work, the researcher has adopted doctrinal research
method. In Doctrinal Research Method, the researcher has collected information
through library study, books and through surfing the web.

Chapter 1: INTRODUCTION

The Court that grants bail can also withdraw the concession of bail, either suo moto, i.e. on its
own, or on the Application from the Police/ Complainant/ any other aggrieved person.
However, the Courts exercise their power of cancellation of bail with care and
circumspection. As per Section 439(2) of the Code of Criminal Procedure, a High Court or
Court of Session may direct that any person who has been released on bail under Chapter
XXXIII (i.e., relating to bail) be arrested and commit him to custody. A person admitted to
bail by the High Court could be committed to custody only by the High Court. Similarly, a
High Court has power to stay bail order passed by Session Courts, if it thinks appropriate to
do so.
A Court of Session can cancel the bail granted by itself and cannot cancel a bail granted by
the High Court unless new circumstances arise during the progress of the trial after an
accused person has been admitted to bail by the High Court. If a Court of Session had
admitted an accused to bail, the State may either move the Sessions Judge if certain new
circumstances have arisen which were not earlier known to the State; or the State may
approach the High Court being the Supreme Court under Section 439(2) to commit the
accused to custody.
Section 437(5) confers on the High Court the power to cause any person who has been
released under Section 437 to be arrested and commit him to custody. Section 439(2) of the
Code empowers the High Court to cause any person who has been admitted to bail under
Section 439(1) of the Code to be arrested and commit him to custody. The Supreme Court
has also power to cancel bail allowed by the High Court if there is a wrong exercise of
discretion by the High Court.
Cancellation of bail can be ordered only on stronger grounds, namely, a bail order having
been procured on misrepresentation of facts, bench selection, on inadequate improper
exercise of discretion by the judges or on the proof of the accused interfering with
investigation or trial.  Routinely, the Courts refuse to cancel bail, as it jeopardizes the
personal liberty of the person. The Courts cancel bails only when they find on record a very

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cogent and overwhelming circumstances prevailing against the accused. 
Suspension of sentence may mean conviction postponed or kept in abeyance during pendency
of appeal Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is distinction between bail and suspension
of sentence. One of the essential ingredients of Section 389 is the requirement for the
Appellate Court to record reasons in writing for ordering suspension of execution of the
sentence or order appealed against.

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 Chapter 2: The Concept of Bail

The term Bail is not defined in Criminal Procedure Code, however, this term, in the most
common sense, indicates that the accused is set free from jail against a kind of security which
is given by the accused to the court that he will attend the proceedings in court against the
accusations made upon him and include personal bond and bail bond.1 Bail is a mechanism
used to ensure that the accused is present before the court and is available for Trial. The
sections 436 to 439 of the Criminal Procedure Code deal with the concept of Bail.

Provisions regarding bails can be broadly classified into two categories: (1) Bailable Cases,
and (2) Non-Bailable Cases.2 If it is a bailable offence, it is the person's right to be released
on bail. There is no clear distinction between a bailable and a non-bailable offence. However,
there are some established principles that are used by the courts to make this distinction.
Generally, non-cognizable offences are considered to be bailable.

Bailable Offence Non-Bailable Offence

Defined u/s 2(a) of Cr.PC Defined u/s 2(a) of Cr.PC
Bailable offence means an offence which is Non-Bailable Offence means any other
shown as bailable in the First Schedule or offence.
which is made bailable by any other Law for
the time being in force.
Bailable offences are regarded as less grave Non-Bailable offences are grave and serious
and less serious. offences, For example-offence of murder.
Under bailable offences, bail is claimed as a Under Non-bailable offences, bail is a matter
matter of right. of discretion.
An offence is said to be bailable when the An offence is said to be non bailable and
punishment for that offence is lesser than 3 when the punishment for it is more than 3
years. years.
It is the right of the accused to be released on It is up to the discretion of the court as to
1
Swapana Kode, Concept of Bails, http://www.legalserviceindia.com/legal/article-3090-concept-of-bails.html.
2
Ratan Lal and Dheeraj Lal, Code of Criminal Procedure, Published by Lexis Nexis (2017).

[7]
bail in a bailable offence. whether grant bail or not.

Bail under Section 436 of the Code

Sub-section (1): This section applies to only persons who are accused of committing a
bailable offence. The presence of the word shall connote that it is mandatory that the person
is let such a person out on bail. It is required that such a person seeking bail shall bring two
persons as sureties and pay an amount as a bond. This is done to ensure such a persons'
appearance in court during his/her trial. Sub-section (2): According to this sub-section, if a
person does not comply with the conditions of the bail-bond, the court can re-arrest such a
person or issue a summons or a warrant.

Bail under Section 437 of the code

When the offence committed is a non-bailable offence, it is upon the discretion of the Court
and Police officer whether to grant bail or not. This Section deals with bails for non-bailable
offence. The word may in this section connotes a certain level of discretion upon the court or
the police officer granting such a bail. The discretion which is applied should be exercised
according to certain rules and principles as laid down by the code and also in line with
Judicial decisions. There is no fixed rule which the court use to determine their discretion.
However, the probability of granting bail is inversely proportionate to the gravity of the
offence committed.

Bail under Section 439 of Cr. P.C.

A person can move to the High Court or the Sessions Court to apply for bail under this
Section only when he is in custody. The discretion granted to the High Court to grant bail is
very wide and remains unfettered by Section 437 of the Code. In Kalyan Chandra Sarkar v.
Rajesh Ranjan,3 it was held that Section 439 is in a way an expansion of Section 437.

Bail under Section 389 of the Code

This section can be invoked for granting bail under three circumstances:

 The person seeking for release of bail is already convicted for an offence,

3
Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528.

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  The person is in confinement, and
 Such a person's appeal against the conviction is pending.

This section is wide enough to include the hearing of the appeal seeking bail of a person who
is convicted for an offence whose punishment is life imprisonment or death. If the court
accepts such an appeal and releases such a person, the prosecution is entitled to file an
application for the cancellation of such a bail.

Bail under Section 395 of the Code

This section shall be invoked when there is a question of the Constitutional validity of any
Act, regulation or Ordinance.

Bail under Section 360 of the Code

This section is a piece of beneficent legislation as it empowers the court to release an accused
who has been convicted on the basis of good conduct under certain circumstances.

Anticipatory Bail

The necessity of granting anticipatory bail arises mainly because of two reasons:

 Sometimes influential persons try to implicate their rivals in false cases for the
purpose of disgracing or for other mala fide intentions by getting them detained in jail
for some days.
 Where the likelihood of the person absconding or misusing the liberty is very
insignificant.

The Indian Penal Code and Code of Criminal Procedure operates on the premise of innocent
until guilty. Hence, unless there is a very strong reason to detain the person in jail before the
actual conviction such a person is not detained. Section 438 lays down the procedure for
anticipatory bail.

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 Chapter 3: Cancellation of Bails

If an accused who has been released on bail attempts to obstruct the smooth progress of a fair
trial or tries to jump bail and to abscond or to run away to a foreign country, it would be just
and reasonable that his bail is cancelled and he is arrested and committed to custody. 4 As per
Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Session may
direct that any person who has been released on bail under Chapter XXXIII (i.e., relating to
bail) be arrested and commit him to custody.

A person admitted to bail by the High Court could be committed to custody only by the High
Court. Similarly, a High Court has power to stay bail order passed by Session Courts, if it
thinks appropriate to do so. A Court of Session can cancel the bail granted by itself and
cannot cancel a bail granted by the High Court unless new circumstances arise during the
progress of the trial after an accused person has been admitted to bail by the High Court. If a
Court of Session had admitted an accused to bail, the State may either move the Sessions
Judge if certain new circumstances have arisen which were not earlier known to the State; or
the State may approach the High Court being the Supreme Court under Section 439(2) to
commit the accused to custody.

Section 437(5) confers on the High Court the power to cause any person who has been
released under Section 437 to be arrested and commit him to custody. Section 439(2) of the
Code empowers the High Court to cause any person who has been admitted to bail under
Section 439(1) of the Code to be arrested and commit him to custody. The Supreme Court
has also power to cancel bail allowed by the High Court if there is a wrong exercise of
discretion by the High Court.5

In all arrest cases other than those in respect of non-bailable offences, bail can be claimed as
a matter of right. But where a person released on bail fails to comply with the conditions of
4
RV Kelkar, CRIMINAL PROCEDURE, Published by Eastern Book Company (2008).
5
Mahesh Kumar v. State of Bihar, 2008(2) BBCJ 642.

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the bail bonds as regards the time and place of attendance, the court may refuse to release him
on bail, when on a subsequent occasion in the same case he appears before the court.6

S. 437 of Cr.P.C. deals with bail in cases of non-bailable offences. 7 S. 437A requires the
accused to appear before the higher court as and when such court issues notice in respect of
any appeal or petition.8 If such accused person fails to appear, the bail bond stand forfeited
and the procedure under S. 446 applies.9

S. 439 of Cr.P.C. deals with special powers of High Courts and Courts of Session regarding
bails. This Section states that a High Court or a Court of Session may direct the release of any
accused person on bail.10 A High Court or Court of Session may also direct that any person
who has been released on bail be arrested and commit him to custody.11

S. 446A of the Code deals with cancelation of bond and bail bond. As per this section, when
a bond for appearance of a person in a case is forfeited for breach of a condition, the bond
executed by such person stands cancelled and thereafter no such person shall be released only
on his own bond in that case.12

6
RV Kelkar, CRIMINAL PROCEDURE, Published by Eastern Book Company (2008)
7
S. 437, Cr.P.C., 1973.
8
S. 437A (1), Cr.P.C., 1973.
9
S. 437A (2), Cr.P.C., 1973.
10
S. 439 (1) (a), Cr.P.C., 1973.
11
S. 439 (2), Cr.P.C., 1973.
12
S. 446A, Cr.P.C., 1973.

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 Chapter 4: Grounds for Cancellation of Bail

The Supreme Court has held that it cannot be contended that consideration for cancellation of
bail is different from the consideration for grant of bail. It is not an absolute rule. For
cancellation of bail, the court has 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, the bail may be cancelled even if the accused has not misused the bail
granted. There is no absolute rule that once bail is granted, then it can only be cancelled if
there is likelihood of misuse of bail. 13 There are several other factors also which may be
considered while deciding to cancel the bail.

Bail may be cancelled on the following grounds as per the verdicts of different Courts:

(1) When the person on bail is found tampering with the evidence either during the
investigation or during the trial.

(2) When the person on bail commits similar offence or any heinous offence during the
period of bail.

(3) When the person on bail has absconded and trial of the case gets delayed on that account.

(4) When it is alleged that the person on bail is terrorizing the witness and committing acts of
violence against the police.

(5) When the person on bail creates serious law and order problems in the society and he had
become a hazard on the peaceful living of the people.

(6) When it is found that the subsequent events make out a non-bailable offence or a graver
offence.

(7) When the High Court found that there was a wrong exercise of judicial discretion to grant
the accused bail.

13
Ratanlal and Dheerajlal, Code of Criminal Procedure, Published by Lexis Nexis (2017)

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(8) When the circumstances were proved that the accused has misused the liberty granted to
him, it is sufficient ground to cancel bail.

(9) If the life of the accused person on bails itself be in danger.

The anticipatory bail can also be cancelled before the regular bail is actually granted.

In Public Prosecutor v. George Williams,14 the Madras High Court pointed out five cases
where a person granted bail may have the bail cancelled and be recommitted to jail:

1. Where he commits the same offence for which he is being tried and proves his utter
unfitness to be on bail.
2. If he hampers the investigation.
3. If he tampers with the evidence, as by intimidating the prosecution witnesses,
interfering with crime scenes in order to remove traces of crime, etc.
4. If he runs away to a foreign country, or goes underground, or beyond the control of
his sureties.
5. If he commits acts of violence, in revenge, against the police and the prosecution
witnesses and those who have booked him.

The case law produced by various Indian courts establish that cancellation can be ordered
only on stronger grounds.15

14
Public Prosecutor v. George Williams, AIR 1951 Mad 1942.
15
Tilak Raj Kohli v. Devender Kumar, 1992 Cri LJ 4000 (Del).

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 Chapter 5: Application for Cancellation of Bail

Where prosecution was unable to establish that the accused were tampering with the
investigation, and the facts also showed that the prosecution no more required the presence of
the accused for further investigation, the application was dismissed.16 The High Court refused
to cancel bail where there was no specific proof of any threat to or instance of tampering of
evidence.17

One more ground was added by the Supreme Court, it is when the order granting bail is
suffering from some perversity. The court said, “Generally speaking, the grounds for
cancellation of bail are interference or attempt to interfere with the due course of
administration of justice or abuse the concession granted to the accused in any manner. One
of the ground for cancellation of bail would be where ignoring material and evidence on
record a perverse order granting bail is passed in a heinous crime of this nature and that too
without giving any reasons. Such an order would be against principles of law. Interest of
justice would also require that such a perverse order be set aside and bail be cancelled.”18

Who can apply for cancellation of bail?

The power of the Court under the section to cancel bail can be invoked either by the state
itself or by any aggrieved party or even suo motu. In this case, the invocation was by the
father of the deceased. The Court said, “The framework of section 439(2) indicates that it is a
power conferred on the Courts mentioned therein. There is nothing to indicate that the power
can be exercised only if the State or investigating agency or a Public Prosecutor moves a
petition. The power so vested in the High Court can be invoked either by the State or by any
aggrieved party. The power could also be exercised suo motu by the High Court. Therefore,
any member of the public, whether he belongs to any particular profession or otherwise can

16
State of Maharashtra v. Kirti V. Ambani, 1992 Cr LJ 1647 (Bom).
17
Karan Singh v. State of Rajasthan, 1993 Cr LJ 251 (Raj).
18
Puran v. Rambilas, AIR 2001 SC 2023.

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move the High Court to remind it of the need to exercise its power suo motu. There is no
barrier either in section 439, CrPC, or in any other law which inhibits a person from moving
the High Court to have such powers exercised suo motu. If the High Court considers that
there is no need to cancel the bail then it can dismiss the petition. It is always open to the
High Court to cancel the ball if it feel that there are sufficient reasons for doing so.”19

Any member of the public can maintain a petition before the High Court reminding it of the
need to exercise its suo motu power in a particular case. Where a single judge of the High
Court having granted bail to certain persons, a group of practising advocates presented
petitions before the Chief Justice of the High Court seeking initiation of suo motu
proceedings for cancellation of the bail by posting the petitions before a Division Bench of
the High Court and accordingly the matter was placed before a Division Bench, it was held
the Division Bench erred in refusing to exercise its suo motu power on the ground that the
petition submitted by the advocates was not maintainable.20

Revision Petition on Granting of Bail

It is possible to challenge granting of a bail by a Magistrate in a revision petition in the High

Court. In the Application for cancellation of bail, the logical reasoning that prevails is that the
granting of bail at the stage of its granting was quite proper but the supervening
circumstances made the continuation of bail legally untenable. Whereas in revision petition
what the applicant grieves about is that the granting of bail itself was not legally tenable.21

In the matter of exercise of revision on a bail order, the Supreme Court and High Court have
issued contravening orders. The Supreme Court, in cases like Amar Nath & Others v. State of
Haryana, Madhulimaye v. State of Maharashtra, deals with the issue of bail. Relying on the
apex court orders the Allahabad High Court in State of UP v. Karam Singh held that an order
granting bail in an interlocutory order and hence it cannot be challenged under exercise of
revision in a Sessions or High Court. But the Bombay High Court, relying on them, decided
the contrary in R Shakuntala v Roshan Lal. Some commentators consider the Bombay High
Court order is more appropriate.22

19
Id.
20
R Rathinam v. State, AIR 2000 SC 1851.
21
Id.
22
Joginder Kumar v. State of U.P., AIR 1994 SC 1349.

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The issue of cancellation of bail is only an incidental matter in a criminal case. Therefore the
standard required to prove a case relating to bail is ‘preponderance of probalities’ and not
‘beyond reasonable doubt’ unlike as in other criminal matters.

Chapter 6: Cancellation of Bail: An Exercise on Discretion

In cancellation of bail, the court has ample power to exercise discretion. But no guidance is
given by the statutes as to when and how it is to be exercised. However an order of the
Madras High Court in Public Prosecutor v George Williams23 elaborates that the bail
granted to an accused can be cancelled when the person on bail commits the very same
offence, hampers the investigation, tampers with the evidence, runs away to a foreign
country, goes underground/beyond the control of his sureties or commits any act of violence
against the police/witnesses. In such cases, the High Court/Court of Session can direct any
person released on bail be arrested. Nevertheless, the power is to be cautiously used in due
consideration of facts and circumstances of the case. The power in this regard under section
439(2) of the CrPC is quite wide.

In this case, the person had been convicted in S. C. No. 67 of 1949, by the learned Sessions
Judge of Tinnevelly division under Section 120(B), Penal Code, read with Section 420, Penal
Code, for having conspired with 23 other accused to cheat members of the public by
promising to give them two counterfeit five rupee notes for one genuine five rupee note. Of
course the genuine notes were taken and the others not given. This accused was held to be the
prime mover and ringleader in this huge conspiracy. during the period when he was on bail,
went on committing similar offences of cheating people by such promises of giving two
counterfeit notes for one genuine note, as those for which he was convicted in S. C. No. 67 of
1949 and that he was arrested and remanded to custody on 24-1-1951 at Shenkottah Railway
station when he was found with a suit case containing one bundle of 48 genuine five rupee
currency notes, and 15 other bundles of blank white paper cut to the size of five rupee
currency notes pasted over either side of the bundle, and 12 other bundles of white paper cut
to the size of five rupee currency notes.

23
Public Prosecutor v George Williams, AIR 1951 Mad 1042.

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The application by the Public Prosecutor is opposed by Mr. Basi Reddi for the first accused,
only on a legal ground, he not disputing the facts alleged by the Public Prosecutor. Mr. Basi
Reddi's contention is that once this Court has granted bail to an accused in an appeal under
Section 426, Cri. P. C., as was the case where bail was granted to this accused in Cri. M. P.
No. 1076 of 1950, it has no power to cancel that bail, whatever the conduct of the person let
on bail may be subsequent to the granting of bail, as Section 497 (5), Cri. P. C., will apply
only to accused persons who are let on bail by a High Court before conviction and will not
apply to persons (who are convicted) granted bail during the pendency of the appeal, and as
Section 561-A, Cri. P. C., too will not have any application to bail matters which are wholly
governed by Section 497 (5) and Section 426, Cri P. C., as held by the Privy Council.

There are five cases where a person granted bail may have the bail cancelled and he
recommitted to jail:--(1) Where the person on bail, during the period of bail, commits the
very same offence for which he is being tried or has been convicted, and thereby proves his
utter unfitness, to be on bail, as in the present case, if the facts alleged by the learned Public
Prosecutor (and they are not controverted by Mr. Basi Reddi, for accused 1) are true; (2) If he
hampers the investigation as will be the case if he, when on bail, forcibly prevents the search
of places under his control for the corpus delicti or other incriminating things; (3) If he
tampers with the evidence, as by intimidating the prosecution witnesses interfering with the
scene of offence in order to remove traces or proofs of the crime, etc. (4) If he runs away to a
foreign country, or goes underground, or beyond the control of his sureties; and (5) If he
commits acts of violence, in revenge, against the police and the prosecution witnesses and
those who have booked him or are trying to book him.

As this case falls under the first category, the bail granted in Cri. M. P. No. 1076 of 1950 to
the first accused in S. C. No. 67 of 1949 of the Tirunelveli division, George Williams alias
Victor (the appellant in Cri. A. P. No. 387 of 1950 on the file of this Court) is cancelled under
the inherent powers of this Court under Section 561-A, Criminal P. C. similar to the powers
under Section 497 (5), Criminal P. G and he is directed to be rearrested and committed to
custody forthwith.

If the bail is granted by the HC, the Sessions Court cannot cancel it, unless new
circumstances not known earlier crop up during the trial. If the Court of Sessions has granted
bail to a person, the state can approach the HC. Even an informant, when there is a real threat
or risk to him or his party, has the power to move the court for cancellation of bail under

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section 439 (2) of CrPC and the court must take a decision considering whether there is any
abuse of the process of the court or gross miscarriage of justice.

The “discretion, when applied to a court of justice, means sound discretion guided by law. It
must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but
legal and regular” and it “must be exercised, not in opposition to, but in accordance with,
established principles of Law”.

Presence of Cogent Reasons for Bail Cancellation

Bail granted once should not be cancelled in a mechanical manner. Very cogent reasons are
necessary for cancelling the bail already granted. The absence of any post-release misconduct
is a compelling reason to rejct an application for cancellation of bail. Even a third party can
apply for cancellation of bail. The High Court has ample jurisdiction to exercise the power
suo moto. However, mere allegation of the threat to witness should not be utilized as a
ground for cancellation of bail. The court should carefully weigh the acceptability of the
allegations and pass orders as circumstances demand and Law warrants. The court cannot
cancel bail on any alien ground not mentioned in the law.

The basic grounds for cancellation are interference with the course of justice, evasion of due
process of justice or abuse of the conditions granted to accused in any manner. While
considering the cancellation application the question of individual liberty of the accused is to
be put in juxtaposition with the societal concern in the crime at hand. The latter deserved
priority over the former. The law provides great discretion to the judge considering the bail
application. Merits or demerits of the case should not be highlighted by the court while
granting or refusing bail.

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 Chapter 7: Conclusion

The object of pre-trial detention of the accused is not to impose punishment but to subject
himt o the penal procedures of Law. The “bail is not to be withheld as a punishment, but that
the requirements as to bail are merely to secure the attendance of the prisoner at trail”.
Therefore, cancellation of bail should be resorted to only in rarest of there are cases where the
accused on bail has done something wholly against the sanctity of legal provisions of bail.
Though The sub-sec. (2) of S. 439 vests the power of cancellation upon the High Court and
the Court of Session concurrently, it has been laid down by the Supreme Court in Gurcharan
Singh Vs. State (Delhi Administration) that under Section 439 (2) of the new Code a High
Court may commit a person released on bail under Chapter XXXIII by any Court including
the Court of Session to custody if it thinks it appropriate to do so.

It must, however, be made clear that the Court of Session cannot cancel a bail which has
already been granted by the High Court unless new circumstances arise during the progress of
the trial after an accused person has been admitted on bail by the High Court. If however, a
Court of Session had admitted an accused person to bail, the State has two options. It may
move Sessions Judge if certain new circumstances have arisen which were hot earlier known
to the State and necessarily, therefore, to that Court.

The State may as well approach the High Court being the superior Court under S. 439(2) to
commit the accused to custody. When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new circumstances that have cropped up except
those already existing, it is futile for the State to move the Sessions Judge again and it is

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competent in law to move the High Court for cancellation of the bail. This position follows
from the subordinate position of the Court of Session visa-vis the High Court.

BIBLIOGRAPHY

 Code of Criminal Procedure (1973)

 R V KELKAR, CRIMINAL PROCEDURE, Published by Eastern Book Company
(2008)
 Ratanlal and Dhirajlal, Code of Criminal Procedure, Published by Lexis Nexis (2017)
 SCC Online
 Indian Kanoon
 http://www.legalservicesindia.com/

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