[BAIL] Questions & Answers By Justice V. Ramkumar-Cancellation Of Bail-PART-II

Q.6 Can the default bail granted by the Magistrate under Section 167 (2) Cr.P.C be cancelled and if so, what is the provision for cancellation ?Ans. Every person released on default bail granted by the Magistrate under Section 167 (2) Cr.P.C. is, by virtue of the last portion of paragraph (a) of the proviso to Section 167 (2) Cr.P.C., deemed to be released under Chapter XXXIII. So, such default bail can be cancelled either under Section 437(5) by the Magistrate himself or under Section 439 (2) by the Sessions Court or the High Court. (Vide –Bashir v. State of Haryana (1977) 4 SCC 410 = AIR 1978 SC 55 – Fazal Ali, Kailasam - JJ;Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1- 3 Judges). But, bail once granted under Section 167 (2) is deemed to have been granted under Chapter XXXIII of Cr.P.C. and, therefore, merely because a charge sheet has subsequently been filed, is no reason to cancel the bail which will be valid till the conclusion of trial, unless it is specifically cancelled. (Vide –Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 = AIR 1996 SC 2897 – 3 Judges - A. M. Ahmadi – CJ, B. P. Jeevan Reddy, N. P. Singh - JJ;Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1 – 3 Judges - A. M. Ahmadi, M. M. Punchhi, K. Ramaswamy - JJ;Free Legal Aid Committee, Jamshedpur v. State of Bihar (1982) 3 SCC 378 = AIR 1982 SC 1463 - P. N. Bhagwati, Amarendra Nath Sen - JJ.) A default bail illegally or erroneously granted by a Court of Session under Section 167 (2) Cr.P.C. can be cancelled by the High Court under Section 439 (2) Cr.P.C. (Vide para 10 oVenkatesan Balasubramaniyan v. The Intelligence Officer, D. R. I. Bangalore 2020 (6) KHC 468 – 3 Judges – Ashok Bhusan, R. Subhash Reddy, M. R. Shah – JJ.Q.7 Can the Magistrate who granted bail under Sec. 436 Cr.P.C. in a “bailable offence”, cancel the bail and by which provision of law ?Ans. No. Bail granted under Section 436 Cr.P.C. in the case of bailable offences cannot be cancelled by the Magistrate. This is because, unlike Section 437 (5) in respect of non-bailable offence, there is no enabling provision for cancellation of bail in the Cr.P.C. with regard to a bailable offence. But, the Magistrate can forfeit the bond under Section 446 Cr.P.C. if there is failure in appearance. An order for bail in a bailable offence being one granted under Chapter XXXIII Cr.P.C., Section 439(2) Cr.P.C. enables the High Court or the Court of Session to cancel the bail granted to a person under the said Chapter.Since a provision analogous to Section 439 (2) Cr.P.C. was absent in the 1898 Code, the Supreme Court in Talab Haji Hussain v. Madhukar Purushotham Monde Kar AIR 1958 SC 376 – 3 Judges - N. H. Bhagwati, J. L. Kapur, P. B. Gajendragadkar – JJ, has held that the High Court can cancel the bail granted in respect of a bailable offence, under the inherent power of the High Court, if that is necessary to ensure fair trial. The above decision has been approved by a Constitution Bench in Ratilal Bhanji Mithani v. Asst.Collector of customs, Bombay AIR 1967 SC 1639 – 5 Judges – K. N. Wanchoo – CJI, R. S. Bachawat, J. M. Shelat, V. Bhargava, G. K. Mitter – JJ.The provision corresponding to Section 436 Cr.P.C. was Section 496 of the 1898 Code where also there was no power given to the Magistrate to cancel the bail in respect of a bailable offence. In Talab Haji Hussain v. Madhukar AIR 1958 SC 376 – 3 Judges - N.H. Bhagwati, J.L. Kapur, P.B. Gajendragadkar – JJ, it was observed that it was an omission by the legislature either due to oversight or inadvertence.NOTE BY VRK:- One reason for not giving a power to a Magistrate to cancel bail in respect of a bailable offence may be that the only condition which can be imposed in a bailable offence is one regarding the time and place of appearance. If that condition is breached, the Magistrate can take action for forfeiture of the bond which has almost the same effect as cancellation of bail.Q.8 Is it permissible for the Magistrate to cancel the bail granted by a Superior Court such as the Court of Session or the High Court, consequent on the violation of the bail conditions by the accused at any time after the appearance of the accused during the stage of inquiry or trial ?Ans. Yes. This question can arise in the following situations:-a) As per Section 436 (1) Cr.P.C., if any person other than a person accused of a non-bailable offence, is arrested or detained without a warrant by an officer-in-charge of the police station (SHO) or appears or is brought before any Court, such SHO or Court is bound to release him on bail. The wording in Section 436 (1) Cr.P.C. is to the effect that if the offence alleged is a bailable offence, then the person accused of such offence shall be released on bail by the SHO or by the Court. Under Section 437 Cr.P.C the SHO or a Magistrate or a Special Court (other than a Court of Session or deemed Sessions...

[BAIL] Questions & Answers By Justice V. Ramkumar-Cancellation Of Bail-PART-II

Justice V. Ramkumar

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