Courtesy: Sheetal Pokhriyal
The concept of bail is fundamental to the criminal justice system in India. It ensures the balance between an individual’s right to liberty and the interests of society. However, circumstances may arise where it becomes necessary to seek the cancellation of bail. The Bhartiya Nagarik Suraksha Sanhita (B.N.S.S) 2023 provides the legal framework for such applications.
What are the pertinent provisions under BNSS 2023/ Cr.P.C. 1973 to address bail cancellation?
With the introduction of the new law Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, the principles of Bail cancellation have been carried forward through updated provisions. The provisions under the B.N.S.S. are as follows:
Section 483(3): “The Court of Sessions or High Court, upon receiving sufficient evidence of the breach of bail conditions, or if it deems fit in the interest of justice, may direct the arrest of the person who has been granted bail under the provisions of this Act and commit the person to custody.”
Section 480(5): “The Court, having released a person on bail, shall retain the power to arrest and detain the person in custody if circumstances arise necessitating the cancellation of bail previously granted under this Act.”
Section 480(5) and Section 483(3) of the BNSS grant courts similar powers to cancel bail, allowing judges considerable discretion.
Under the Code of Criminal Procedure (CrPC), the “cancellation of bail” was addressed by Section 437(5) and Section 439(2). These sections provided the authority for the court that initially granted bail, or a higher court, to revoke it if bail conditions were violated or if new circumstances warranted such a decision.
What are the circumstances under which a bail cancellation application can be filed?
Bail, while a right, is not absolute. If the accused violates any of the conditions on which bail was granted, or engages in activities that hamper investigation, the bail can be revoked. Some grounds for cancelling bail are:
- Violation of Bail Conditions: Courts often impose specific conditions on the accused while granting bail, such as not leaving the jurisdiction, reporting to the police station, or not contacting witnesses.
- Misuse of Liberty by the Accused: When the accused, while on bail, misuses their freedom in any manner, including indulging in illegal activities or obstructing justice.
- Tampering with Evidence: If the accused attempts to destroy, alter, or conceal evidence, it significantly affects the fairness of the trial and is a valid reason to revoke bail.
- Threatening or Influencing Witnesses: Courts take threats to witnesses very seriously, as they jeopardize the prosecution’s case. If it can be demonstrated that the accused has threatened, influenced, or coerced witnesses, bail can be canceled.
- Repeat Offenses: If the accused is found to have committed another crime while out on bail, it is grounds for the court to revoke the bail. The accused’s conduct is a critical factor in determining whether they deserve to remain free.
- Absconding: Failing to appear in court for trial or trying to flee from the jurisdiction is a common reason for bail cancellation.
- Interference in the Investigation: If the accused is found interfering in the investigation process or influencing the prosecution’s witnesses, bail cancellation becomes inevitable.
In Aslam Babalal Desai v. State of Maharashtra(1992), the Hon’ble Supreme Court, after reviewing prior rulings, clarified that the grounds for the cancellation of bail under Sections 437(5) and 439(2) of the CrPC are the same. The Court outlined specific situations in which bail can be revoked on the following grounds:
(i) where the accused misuses his liberty by indulging in similar criminal activity,
(ii) where he interferes with the course of investigation,
(iii) where he attempts to tamper with evidence of witnesses,
(iv) where he threatens witnesses or indulges in similar activities, which would hamper the smooth investigation,
(v) where there is likelihood of his fleeing to another country,
(vi) where he attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, and
(vii) where attempts to place himself beyond the reach of his surety, etc.
Who is eligible to file a bail cancellation application?
A bail cancellation application can be initiated by various parties under certain circumstances. The Public Prosecutor may request it if they believe the accused is misusing the bail or violating its terms. Similarly, the complainant or victim has the right to move an application for cancellation of bail. The Investigating Agency may also apply for cancellation if they gather evidence indicating that the accused is hindering the investigation. Additionally, the Hon’ble Court itself can suo motu take action on its own if it observes that the accused is violating the conditions of bail or misusing their freedom, as upheld in Puran vs. Rambilas and Another by the Hon’ble Apex Court.
How do judicial pronouncements impact bail cancellation cases?
Courts are generally cautious when it comes to cancelling bail. Personal liberty is fundamental, and bail is considered a safeguard against arbitrary detention. Therefore, bail cannot be cancelled on mere allegations; there must be strong and compelling reasons supported by evidence.
In the Smt. Usha Rani v. State of U.P., the Hon’ble Allahabad High Court reflected on these principles while dealing with a bail cancellation application. It considered whether the accused, after being granted bail, misused their liberty by transferring property, but found no substantial evidence for cancellation after four years.
In the landmark case of Gurcharan Singh & Ors vs State (Delhi Administration) where police officers were accused of conspiring to murder a notorious dacoit in custody. Initially, they were granted bail by the Sessions Court despite concerns about witness tampering. However, the High Court cancelled the bail, citing the seriousness of the charges, and the same was upheld by the Hon’ble Apex Court focusing on the need for a fair trial, emphasizing the importance of preventing interference with witnesses.
What are the key factors the Hon’ble Court considers when cancelling bail once it has been granted?
In regards to the factors, the Hon’ble Apex Court has laid down the law in Daulat Ram v. State of Haryana (1995). It was held that bail once granted should not be canceled unless there is substantial evidence showing that the accused is:
- Misusing their liberty: If the accused misuses their freedom to commit further offenses, obstruct justice, or interfere with witnesses, bail may be revoked. This was reiterated in Raghubir Singh v. State of Bihar (1986), where the Supreme Court noted that actions like tampering with evidence or threatening witnesses are grounds for cancellation.
- Obstructing the course of justice: Interference with the investigation, hindering witnesses, or attempting to influence the course of justice are critical reasons. In State (Delhi Administration) v. Sanjay Gandhi (1978), the Court pointed out that cancellation of bail is warranted if it jeopardizes the trial’s fairness due to such actions.
- Committing further crimes: If the accused commits additional crimes while on bail, as seen in Pooja Bhatia v. Vishnu Narain Shivpuri (2014), the Court found that serious conduct like throwing acid on a complainant justifies revoking bail.
Courts also consider other factors, the seriousness of the offence, the behavior of the accused, and the possibility of absconding, while deciding bail cancellation applications.
What is the difference between cancellation of regular bail and anticipatory bail?
Regular Bail is generally cancelled if the accused violates the bail conditions, attempts to interfere with the investigation, intimidates witnesses, or commits another offence while on bail. Courts may also cancel bail if the person abuses the freedom granted by bail or fails to appear for trial.
On the other hand, Anticipatory bail can be canceled if new facts come to light, showing that the accused does not deserve pre-arrest protection. If the accused misuses the anticipatory bail by fleeing, threatening witnesses, or committing new offences, the court may revoke the bail. The court can cancel anticipatory bail if it later finds that the accused has violated the conditions or if fresh, compelling reasons emerge. The court’s power to cancel anticipatory bail is similar but may happen before the actual arrest.
If anticipatory bail is canceled, the protection from arrest is withdrawn, and the person becomes vulnerable to being taken into custody by the police.
Pursuing the remedy of Cancellation
For preparing a bail cancellation application, one must be very thorough with the facts and must understand that the scope of cancelling a bail is quite narrow. Hence, one must prepare the grounds that are within the ambit of law, and connect the facts with such grounds to make out a successful case for cancellation. Bail is the rule, and jail is the exception, and this is further strengthened by the grant of bail in such cases. Hence, cancelling bail requires such circumstances (discussed above) to be displayed which may persuade the Hon’ble Court to cancel the bail.