Can bail granted by High Court be cancelled by trial court?

Whether bail granted by the High Court can be cancelled by the trial court? If yes, on what grounds.

Answer: Provisions relating to cancellation of bail are contained in Section 437(5) and Section 439(2) of the Criminal Procedure Code (Cr.P.C.). These are reproduced hereunder:

Section 437(5): “(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.”

Section 439(2): “(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

It may be pointed out that the power to grant bail under sub-sections (1) and (2) of Section 437, referred to above, is with the officer-in-charge of a police station (SHO) or with a Court other than the High Court or Court of Session, i.e., with the Magistrates. Therefore, the power to cancel bail under Section 437(5) can be exercised by the Magistrate court. It is thus obvious that a Magistrate can cancel the bail only if such bail has been granted by such police officer or by that Magistrate’s court. A Magistrate cannot cancel bail which has been granted by the Sessions Court or by the High Court.

Under Section 439(2) of Cr.P.C., power to cancel bail has been given to the High Court and the Sessions Court. This power is quite wide and it extends to any bail granted under Chapter 33 of Cr.P.C., which includes Section 437, 438 and 439. Therefore, High Court and Sessions Court can also cancel the bail granted by a police officer or by a Magistrate court under Section 437, in addition to the power to cancel bail granted by such court itself (i.e., by High Court or the Sessions Court) under Section 439.

There are judgments which lay down that bail granted by a Sessions Court under Section 439 Cr.P.C. can be cancelled by the High Court also under Section 439(2), referred to above.

So, now the only question that remains is whether a Sessions Court can cancel bail granted by the High Court. There does not appear to be any judgment on this issue. So, let me try to answer it.

Language of Section 439(2) Cr.P.C. is quite wide. It does not put any restrictions on the power of the Sessions Court to cancel bail granted by the High Court. On the other hand, this provision states that both the High Court and the Court of Session may cancel the bail granted to any person who has been released on bail under Chapter 33 of Cr.P.C., and it is noteworthy that bail granted by High Court under Section 439 also falls in this Chapter. So, if a wider interpretation is given to the language used in Section 439(2), it may appear that the Sessions Court may have the power to cancel the bail granted by the High Court. However, I feel that the question of judicial discipline may perhaps have to be read into this provision. It may not be appropriate on the part of the Sessions Court to cancel the bail granted by the High Court, unless the High Court has itself given such liberty to the Sessions Court in an individual matter. Moreover, in practice also, even if a wider interpretation is given to Section 439(2), a Sessions Court may not like to cancel the bail which has been granted by the High Court, by way of judicial discipline.

Therefore, I feel that it may not be appropriate for a Sessions Court to cancel the bail granted by the High Court, even if the language of Section 439(2) Cr.P.C. may indicate to the contrary. As mentioned above, there appears to be no judgment on this issue. It is also noteworthy that it has been held that the power to cancel the bail already granted should generally be used sparingly and should not be used in a casual manner. So, this fact may also be relevant in this regard.

Grounds for cancellation of bail:

Firstly, it is noteworthy that language used in Section 439(2) does not place any restrictions on the power of the High Court and Sessions Court of cancelling bail. It has been held that while hearing an application for cancellation of bail under sub-section (2) of Section 439 of the Code of Criminal Procedure, the courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. The court has to see as to whether the accused has misused the privilege of bail granted to him. Only in exceptional cases where the order granting bail is vitiated by any serious infirmity and in the interest of justice it becomes necessary to interfere with the discretion exercised in granting bail that the order would be interfered with on merits.

Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts.

[Note: Some contents of this answer have been taken from the author’s book: Law of Bail, Bonds, Arrest and Custody, By Dr. Ashok Dhamija, (2009 Edition), appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]