When can a Superior Court Revoke Bail?

What is fair trial when considering a bail application? The canonical law ‘Bail is the rule, Jail is the exception’ falls perfectly in line with the principle ‘innocent until proven guilty’. Yet, there are conflicting opinions with respect to preferential treatment of victims and accused. The pendulum of justice swings. Exceptions of jail occur. Criminal laws allow for bail to be revoked when necessary.

There also exists a clear distinction between cancellation of bail and bails set aside, which shall be discussed ahead.

Cancellation of bail

The bail, once granted, cannot be cancelled in a mechanical manner. Occurrence of any superseding circumstances and post bail conduct of the accused must be reviewed. When courts grant bail, they come attached with conditions that the accused must adhere to during the pendency of their matter. Cancellation of bails typically occurs when the accused violates these bail conditions. However, violation of bail conditions does not immediately cancel a bail.  

If the court becomes aware of grave injustice taking place, it can take suo moto cognizance and direct relevant agencies or authorities to conduct investigations and take necessary actions. In these circumstances, the superior court may cancel the bail and take the accused into custody. It ensures the rights of the affected individuals are protected, and justice is served. If the court has no information of the injustice, the prosecution, a witness, a complainant, or any aggrieved party must apply for cancellation of bail in the appropriate court. After considering the complete facts and circumstances of a case, it is upon the judge’s discretion that bail orders are cancelled.

Rejection of bail and cancellation of bail are two very different positions. It is oddly simpler to reject a bail application than to cancel a bail order.

Cancellation of bail mandates review of a decision made, and therefore is exercised sparingly by courts of law. The prosecution must prove extenuating circumstances of abuse of freedom by the accused, be it:

i.    Attempts or success at destroying or concealing the evidence.

ii.    Endeavours to influence or threaten witnesses to favour the accused.

iii.    Violation of bail conditions.

iv.    Commission of new offence.

v.    Non-appearance in court.

vi.    Accused is a flight risk.

vii.    Significant risk to public at large.

viii.    Interference or attempt to interfere with the due course of administration of justice.

ix.    Evasion or attempt to evade the due course of justice.

x.    Abuse of the concession granted to the accused in any manner.

The instances of abuse listed above are broadly illustrative and not exhaustive.

Setting Aside a Bail Order

There is a clear distinction between cancellation of bail order and setting aside the bail order. The bail order can be set aside and annulled only by the superior courts when the bail order is evidently unjustified, illegal, and perverse ab initio. Justice NV Ramana clearly reiterated the ratios of Mahipal v. Rajesh and Prasanta Kumar Sarkar v. Ashis Chatterjee in Y v. State of Rajasthan & Ors. So did Justice Hima Kohli in the matter of P v. State of Madhya Pradesh. The basic tenets, as stated below, must be carefully reviewed before granting a bail:

xi.    Whether   there   is   any   prima   facie   or reasonable   ground   to   believe   that   the accused had committed the offence;

xii.    Nature and gravity of the accusation;

xiii.    Severity of the punishment in the event of conviction;

xiv.    Danger of the accused absconding or fleeing, if released on bail;

xv.    Character, behaviour, means, position and standing of the accused;

xvi.    Likelihood of the offence being repeated;

xvii.    Reasonable apprehension of the witnesses being influenced; and

xviii.    Danger, of course, of justice being thwarted by grant of bail.

Hierarchy of Powers

Magistrates can cancel bail granted by themselves in a non-bailable matter under section 437(5) of Code of Criminal Procedure (CrPC), but they have no power to do so in a bailable case. In such matters, bails can only be cancelled by a sessions court or a High Court, as per section 439(2), CrPC. These courts have broader powers and may revoke bails of any court at equal or lower stature. Magistrates do not hold any power under section 439(2).

Evidently, as any judgement or order is passed, including bail granted in bailable as well as non-bailable offence, one court can only cancel bail by a court of equal or inferior stature it in the judicial hierarchy. A sessions court cannot cancel bail granted by a High Court. A High Court cannot cancel bail granted by the Supreme Court. A single judge of the Supreme Court or High Court cannot cancel bail granted by a double bench of the same court.

Once the new criminal law bills are passed, the above principles shall fall under section 482(5) and 485(2) of Bhartiya Nagrik Suraksha Sanhita Bill, 2023.

What to do if Bail is Cancelled?

Even rarer are cases where bail cancelled or set aside by a superior court shall be granted to the accused again. The accused will have to approach a higher court than the superior court which had revoked the bail in the first instance. One may also apply for bail in the same court that rejected the bail if there are any changed circumstances or ample time has passed. However, it is best to approach a higher court, for chances for receiving bail again are highly scarce.

Conclusion

Justice Katju preferred disregarding the acts of the accused post bail and solely focused on the gravity of the case to decide upon cancellation of bail in Prakash Kadam v. Ramprasad Vishwanath Gupta. Yet, this rule of setting aside bail orders, has been reiterated in several judgements quoted above to apply only when setting aside a bail order by a superior court. Magistrates cannot cancel a bail order unless the post bail circumstances allow for it. Bail is rule and jail is exception, but justice must prevail in either case.