Code of Criminal Procedure, 1973: s. 439(2) – Cancellation of bail – Power of – Held: Power of cancellation of bail should be exercised with extreme care and circumspection – Such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail – Very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted – Unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with – Cancellation is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case – On facts, it had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in violation of the conditions imposed on her, thus, the order setting aside the bail granted to the appellant cannot be approved, and is set aside. Allowing the appeal, the Court
HELD: 1.1 In the peculiar circumstances of the case, particularly for the fact that the deceased left a minor child and none except the appellant was available in the family to look after the child, it is equally difficult to say that the appellant has been an absconder or a fugitive who had been intentionally running away from the process of law. The challenge thrown at the relevant time by Covid-19 pandemic also remains a factor which cannot be ignored altogether. Further, the fact that the appellant is a lady in 55 years of age cannot be ignored. [Para 16][196-B-C]
1.2 The order passed by the First Additional Sessions Judge, though had not been explicit on all the surrounding factors but then, the facts were indeed taken into consideration that two of the co-accused were granted pre-arrest bail whereas the other co-accused person, husband of the appellant, was granted regular bail. In the given set of facts and circumstances, if the trial court was satisfied that the appellant was entitled to be given the concession of bail while putting her to specific terms and conditions, the order so passed had neither been suffering from any fundamental error nor there was any other material factor for which the bail granted to the appellant was to be annulled. Even if the High Court had its reservations in the order so passed by the trial court granting bail to the appellant, particularly when the fact of long absence of the appellant was not adverted to, it was yet required to be taken note of by the High Court that the power being exercised was not that of a regular appeal or revision but, it was that of cancellation of bail under Section 439(2) CrPC. [Para 17, 18][196-D-G]
1.3 It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) CrPC. [Para 19][196-G-H]
1.4 It had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in violation of the conditions imposed on her. Power of cancellation of bail should be exercised with extreme care and circumspection; and such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. In other words, the powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused and in fact, in a case where bail has already been granted, its upsetting under Section 439(2) CrPC is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case. In the matter of the present nature, over-expansion of the issue was not required only for one reason that a particular factor was not stated by the trial court in its order granting bail. Thus, in totality of the circumstances, the order impugned setting aside the bail granted to the appellant cannot be approved. The impugned order passed by the High Court is set aside and the order passed by the First Additional Sessions Judge is restored. [Para 20-22][196-H; 197-A-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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