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

Q.1 Is there any specific provision in the Cr.P.C for cancellation of bail?Ans. No. But Section 437 (5) is the provision understood as the provision enabling a Magistrate for cancellation of bail granted by the Magistrate in respect of a non-bailable offence. Similarly, Section 439 (2) is the provision understood as locating the power of the Sessions Judge and the High Court for cancelling the bail. In an article titled “I beg to disagree with the proposition of law laid down in James George @ Basaliyas Marthoma Yakob – Pradaman v. State of Kerala 2015 (4) KLT 310 – B. Kemal Pasha - JJ” published in 2015 (4) KLT Journal page 29, I had enumerated 41 decisions of the Apex Court in which the above provisions were treated as provisions for cancellation of bail, contrary to the view taken by the High Court of Kerala in the above verdict.Q.2 Is there any distinction between “cancellation of bail” and “forfeiture of bond”?Ans. Yes. “Cancellation of bail” means cancellation of the order granting bail. This is ordinarily done for a “post-bail conduct” of the accused or for any violation of the bail conditions by the accused. Once bail is cancelled, there has to be a fresh order for release on bail, unlike in a case where the bond has been forfeited.In cases covered by Prasad Jacob v. State of Kerala – 2010 KHC 398 = 2010 Cri.L.J. 4137 = 2010 (2) KLT (SN) 68 – V. Ramkumar - J and Order dated 16-12-2019 of the Supreme Court in State of Kerala & Another v. K. A. Sabu & Another in Criminal Appeal No. 1902 of 2019 – Justice Arun Mishra, Justice Indira Banerjee – JJ, also the order granting bail was set aside for the reason that bail ought not to have been granted.But “forfeiture of the bond” takes place where a bond is for “appearance” or for “production of property” and breach of such a bond has been committed either by not appearing or by not producing the property. Non-appearance or default in appearance by the accused or non-production of the property by the obligant, may entail action under Section 446 Cr.P.C. against the accused or his/ her surety or the obligant under the bond. But, in a case where the bail bond alone has been forfeited under Section 446/ 446A Cr.P.C., there can be a fresh bail on a fresh bond in the very same earlier order for bail which has not been set aside or cancelled. (Vide proviso to Section 446 A Cr.P.C.) While for the failure to pay the penalty under Section 446 (2) Cr.P.C the “surety” is liable to imprisonment in “civil jail” by virtue of the proviso to Section 446 (2) Cr.P.C, the accused is not so liable for imprisonment. The penalty imposed by the Court can be recovered as if it were a fine imposed by the Court under the Cr.P.C. (vide Section 446 (2) Cr.P.C)Q.3 What are the considerations for cancellation of bail ?Ans. Cr.P.C. does not stipulate or enumerate the grounds for cancellation of bail. The grounds for cancelling bail have been laid down by Judge-made law. Those grounds are :-a) The accused has misused his liberty by indulging in similar criminal activity.b) The accused has interfered with the course of investigation.c) The accused has attempted to tamper with the evidence or has attempted to influence the prosecution witnesses.d) The accused has threatened any witness or has indulged in similar activities which would hamper smooth investigation.e) The accused is likely to escape into another country.f) The accused attempts to make himself scarce by going underground or being unavailable to the Investigating Agency.g) The accused attempts to place himself beyond the reach of his sureties.(Vide –Para 18 of Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary (2014) 10 SCC 754 = 2014 KHC 4678 – H. L. Dattu, S. A. Bobde - JJ;Reghubir Singh v. State of Bihar (1986) 4 SCC 481 – O. Chinnappa Reddy, M. M. Dutt - JJ;Mehboob Davood Sheikh v. State of Maharashtra – (2004) 2 SCC 362 = AIR 2004 SC 2890 = 2004(2) KLT 812 (SC) – Doraiswamy Raju, Arijit Pasayat - JJ;Paras 24 to 31 of State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21 = AIR 2005 SC 3490 – Ashok Bhan, R. V. Raveendran - JJ;Paras 6 to 9 of Myakala Dharmarajam v. State of Telangana (2020) 2 SCC 743 = AIR 2020 SC 317 = 2020 KHC 6010 SC – L. Nageswara Rao, Hemant Gupta - JJ).h) The order granting bail is perverse for the reason that irrelevant material of substantial nature has been taken into account or relevant material has been omitted from consideration. Vide Dinesh M.N. (S.P.) v. State of Gujarat – (2008) 5 SCC 66 – 3 Judges – Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam - JJ; Narendra K Amin (Dr) v. State if Gujarat (2008) 13 SCC 584 – 3 Judges - Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam - JJ;In Para 10 of Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC 180 = AIR 2013 SC 296 – Aftab Alam, Ranjana Prakash Desai – JJ, it was observed as follows:-“The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If...

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

Justice V. Ramkumar

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