In my humble opinion, it is without properly appreciating the distinguishing mechanics behind the processes of “setting aside a bail order,” “forfeiture of bail bond resulting in cancellation of bail bond “ and “cancellation of bail ”, that the High Court of Kerala once again fell into an error in Intelligence Officer, Narcotics Control Bureau Vs. Lijo K. Jose – 2015(4) KLT 981. (“NCB case “ for short ). In paragraph 18 of the NCB case, this is what has been asserted:-
“18. This court had an occasion to consider the aspect as to whether the provisions contained under S.439(2) Cr.PC. are relating to cancellation of bail? Still, this Court is of the view that the said provision contained in the Code of Criminal Procedure is not for cancellation of bail in all matters. The powers granted to Magistrates under S.437(5) Cr.PC and the power granted to the Sessions Court as well as the High Court under S.439(2) Cr.PC are not for cancellation of bail in all circumstances. Of course, when those powers are lawfully exercised within the meaning and spirit of those provisions, it may result in a situation wherein such an order has the effect of an order of cancellation of bail. The impact of orders under the said provision may result in an order which is having an impact of the cancellation of bail. When the legislature does not specifically show that those powers are powers for cancellation of bail, this Court is of the firm view that the said provision may not be made use of in all circumstances, for cancellation of bail.”
The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman Vs. State of Kerala – 2015(4) KHC 843 wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.
iii) forfeiture of bail bond and resultant cancellation of bond;
Order granting or refusing (rejecting) bail
APPLICATION FOR SETTING ASIDE
AN ORDER GRANTING BAIL.
Forfeiture and the resultant cancellation of the bail bond
“21. As per the said provision, where a bond under the Code is for appearance of a person in a case, and it is forfeited for breach of a condition, the powers under S.446A(a) as well as (b) can be invoked. It may not be understood that the breach of that condition which results in forfeiture of the bond and bail bond is not confined to the breach of the condition for appearance only. The wordings of the provision “where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition” clearly indicates that the forfeiture will result even in violation of conditions other than the conditions for appearance also. At the same time, such a forfeiture of a bond under S. 446A should be one executed for the appearance of a person in a case. Therefore, it is evident that in cases wherein an accused who is enlarged on bail, executes a bond for appearance in a case, commits breach of any of those conditions contained in the order granting bail, forfeiture of the bond as well as bail bond is possible. At the same time, in all such cases, it may not be just, in forfeiting the bonds of the sureties also.
“Where a bond under this Code is for appearance of a person in a case and it is forfeited for the breach of a condition” cannot be understood to mean that forfeiture of the bond for appearance can take place even for the breach of any condition other than one for appearance. By virtue of Form Nos. 45 and 48 (unless suitably modified by the High Court under Article 227 of the Constitution of India and Section 477 Cr.PC) which are the Forms to be used for this purpose in view of Section 476 Cr.PC, forfeiture of a bond (for appearance) is contemplated only in cases of non-appearance of the accused and in no other contingency. Form No. 3 prescribed by the High Court under Appendix I to the Criminal Rules of Practice, Kerala, 1982 is also on similar lines as Form No. 48 referred to above. Hence no other mode of forfeiture is contemplated by the Cr.PC. If so, the question of any injustice in asking the sureties to pay the penalty consequent on the accused committing breach of a condition other than one for appearance, does not arise. The learned Judge is not quite right in observing that when a bond for appearance is forfeited for breach of a condition, the powers under Section 446-A (a) and (b) can be invoked. There is no question of the Court invoking either clause (a) or clause (b) of Section 446-A of Cr.PC. Under clause (a) the cancellation of the bond consequent on the forfeiture, takes place automatically. Clause (b) is also not a provision for invocation by the Court. It is really an interdict not to release the person who had committed breach of the condition for appearance. It is the proviso thereto which the Court can invoke in an appropriate case.
CANCELLATION OF BAIL
12. This article has been penned on account of the possible confusion which the NCB case may cause in the subordinate judiciary. A persistent obstinacy in dogmatically adhering to a misconceived view can never bring about clarity of the underlying principles of law.
Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act.