The first accused who had allegedly committed offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code, was granted bail by the Chief Judicial Magistrate. Subsequently, the Sessions Judge was moved through a petition filed under Section 439 (2) Cr.P.C. for cancellation of the bail granted to the Ist accused. The said petition was allowed by the Sessions Judge. Aggrieved by the order of the Sessions Judge cancelling the bail, the Ist accused approached the Hon'ble High Court. As per the reported decision quoted above, a learned Judge of the High Court quashed the order passed by the Sessions Judge holding inter alia, as follows:-
“Much discussion is not required to conclude that the Court below, being a Sessions Court, has no power to “cancel the bail” by invoking the power under Section 439 (2) Cr.P.C. The provisions contained under Sections 439 (2) Cr.P.C. and 437 (5) Cr.P.C. are not meant for cancellation for bail; whereas those provisions are meant for arrest of an accused who was enlarged on bail”.
“ 437 (1)
(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may,if it considers necessary so to do, direct that such person be arrested and commit him to custody”.
Likewise, Section 439 (2) which has always been understood as the source of power for the High Court and the Court of Session to cancel bail, reads as follows:-
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter, be arrested and commit him to custody”
(vide Devidas v/s State of Kerala – 1979 KLT 642; Raghubir Singh v/s State of Bihar- (1986) 4 SCC 481=AIR 1987 SC 149; Mehboob Dawood Shaikh v/s State of Maharashtra (2004) 2 SCC 362=AIR 2004 SC 2890)
I know of more than three dozens of rulings by the Apex Court itself where either Section 437 (5) or 439 (2) Cr.P.C. was invoked for “cancellation of bail”. The following decisions may be seen:-
Hence, the proposition of law laid down in the reported decision does not appear to be correct. Section 439 (2) Cr.P.C. invoked by the Sessions Judge for cancelling the bail of the Ist accused was indeed the correct provision of law to be invoked. Of course, the question whether the cancellation of the bail was justified or not in the case under the consideration of the High Court, is a different question.
Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act.