Judgments related to Cancellation of Bail under Section 439(2) CrPC

There are two categories of offences in India i.e. bailable and non-bailable offences. The landmark judgment of Guru Charan Singh vs. Delhi Administration stated that bail is a matter of right where the offence committed comes under the category of a bailable offence. On the other hand in a matter relating to a non-bailable offence, bail is a matter of discretion. Also, the judgment stated that any magistrate shall not grant bail in the case of an offence punishable with death or imprisonment for life. It also promulgated that the High Courts and Court of Session has a wider discretion regarding granting of bail.

Section 439 of the Code of Criminal Procedure, 1973 gives the High Courts and Court of Session very wide powers to admit an accused person to bail. The statutory limitation laid down in section 437 of refusing bail does not control section 439. The court’s discretion is unfettered. Although, the discretion should not be exercised arbitrarily but judicially.

Section 439(2) of the Code empowers the High Courts and the Courts of Sessions to direct a person released on bail to be arrested or commit him to custody. However, there must be very cogent and overwhelming circumstances for an order seeking cancellation of bail. Even when there is a prima facie case, the Court should consider whether the presence of an accused would be readily available for trial or whether he is likely to tamper with evidence. The Court should not be impressed with irrelevant considerations.

The word of Judiciary

It is easier to reject the bail application in a non-bailable case than to cancel the bail once granted. This is because the cancellation of bail once granted interferes with the liberty of the accused once secured by the court. The Supreme Court has also stated in Aslam vs. State, that merely filing of the charge-sheet cannot be a ground for cancellation of bail once granted by the court.

In Talab vs. Madhukar, the Supreme Court said that there must be a significant connection between the witness turning hostile and the accused. Without any such proof, the courts cannot cancel bail once granted. The Supreme Court has made this very clear that the main objective of the courts is to conduct a fair trial. Hence, bail once granted cannot be canceled unless there is a serious threat to a fair trial. The High Court is also not justified in canceling bail of the accused if it is once granted by the Court of Session.

However, the Supreme Court has explicitly said that the courts can cancel bail once granted only on very cogent and overwhelming circumstances. The grounds of which are:

• Interference or attempt to interfere with a due course of administration of Justice;
• Evasion or attempt to evade the due course of justice; or
• Abuse of the concession granted to the accused in any manner; or
• Possibility of the accused absconding.

However, this list is not exhaustive but illustrative. The courts should exercise Discretionary Jurisdiction carefully and cautiously. It should balance the rights of the accused and the interests of society.

By Abhishek Khare,
An Associate in Law Offices of Kr. Vivek Tanwar Advocate and Associates