The parameters for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the CrPC can be cancelled where the accused:
Bail granted in the instant matter was sought to be cancelled by the Petitioner under sub-section (2) of Section 439 of the Code of Criminal Procedure, 1973 (CrPC). Bail was granted in the offence punishable under Sections 304 and 304-A of the IPC claiming to be the victims of the Sterilization Operation as was conducted. It was contended that bail was obtained by the concerned Respondent by suppression and misrepresentation of facts and further that the bail order passed reflect consideration of irrelevant material.
The question thus before the Court was as to whether there were prima facie grounds available for cancellation of bail under Section 439 (2) of the CrPC.
It was observed that the parameter for grant of bail and cancellation of bail are entirely different. Bail granted under Section 439(1) of the CrPC can be cancelled where the accused:
It is also a settled principle of law that even if there are two views possible, once the bail has been granted, it should not be cancelled.
Section 439 of the Code confers special powers on High Court or Court of Session regarding bail. Even if a Magistrate refuses to grant to bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. Under Section 498 (2) of the old Code, a person who has been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, in was lifted in the new Code under Section 439(2).
Under Section 439 (2) of the new Code High Court may commit a person released on bail by a Court including the Court of Session to custody, if it thinks appropriate to do so. A Court of Session however, cannot cancel a bail granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Session Judge if certain new circumstances have arisen which were not earlier known to the State, and necessarily, therefore to that Court. The State may as well approach the High Court being the superior Court under Section 439 (2) to commit the accused to custody. Where State is aggrieved by the order of the Session Judge grating bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Session Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.
It was not the case of the Petitioners that the Respondent concerned misconducted himself after grant of bail by the Court warranting cancellation of bail order, therefore, order granting bail deserves to be cancelled. The facts and grounds pleaded in an application for cancellation of bail and contentions raised were held as not within the scope and jurisdiction of the present Court, as such alleged illegality, perversity could not be determined in an application for cancellation of bail. This was held to be as amounting to review/recall of bail order, which is impermissible in view of the express bar contained in Section 362 of the CrPC.
[Savita Khande & Anr. vs. State Of Chhattisgarh]
(Chhattisgarh HC, 27.07.2015)
Cr. M. P. No. 469 of 2015