A brief discussion on the law relating cancellation of bail in India granted by criminal courts under Code of Criminal Procedure.
Provision for cancellation of bail in India is contained in Section 439(2). It contemplates that the Court of Session or the High Court can cancel the bail granted to an accused. The said section is reproduced hereunder for ready reference:
“439(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
Bail is a vital and crucial right of an accused enshrined under the right to freedom. Once the person is released on bail, it is in exceptional circumstances that the courts cancel his bail.
The pre-conditions as defined by various courts for cancellation of bail in India can be summarized as under:
I. The interference or attempt to interfere with the due course of administration of justice by the accused.
II. The evasion or attempt to evade the course of justice by the accused.
III. The accused has abused to the liberty granted to him by the court.
IV. The accused misuses the liberty by indulging in similar criminal activity.
V. The accused interferes with the course of the investigation.
VI. The accused attempts to tamper with the evidence or the witnesses.
VII. The accused threatens witnesses or indulges in similar activities.
The powers as provided under section 439 (2) are wide and sweeping. The said powers can be exercised for canceling any bail however if the bail has been granted by the court of session, the same would be canceled by the Court of Session or the High Court. If the bail has been granted by the High Court, the same can only be cancelled by the High Court.
There is an exception under section 167 (2) of the code of criminal procedure which contemplates that if an accused has been granted bail due to default on the part of the investigating agency in filing the charge sheet within 60/90 days, then the accused is granted, bail on the count of default.
Even the bail granted due to default on the part of the investigating agency and by the exercise of the powers under section 167 (2) of the code of criminal procedure can be canceled after filing of the charge sheet and after raising strong grounds for cancellation of the bail as mentioned above. Thus it is clear that cancellation of bail is a separate and independent power of the court which is mainly based on the preconditions imposed by the court and the eventualities expressed by the Court in its various judgments as quoted hereinabove would.
IMPORTANT TIPS ON CANCELLATION OF BAIL
An application should be moved before the court which has granted the bail stating all these grounds or the related grounds stated above for cancellation of bail of the accused. Based on the facts of the case, the court will consider all the grounds and order for the cancellation of the bail if the said grounds are found to be correct.
One has to lodge a complaint with the police detailing the conduct of the accused pointing out the violation of the terms of the bail as fixed by the court before approaching the court for cancellation of bail.
The facts should specifically point out that the accused is interfering or attempting to interfere with the investigation and the course of justice.
The facts should also clearly state that the accused is evading or has attempted to evade the course of justice.
It should be brought to the knowledge of the court that the accused has abused the liberty granted to him by the court.
The accused has misused his liberty by indulging in similar criminal activity so the court should cancel his bail.
The accused interferes with the course of the investigation of the case.
The accused attempts to tamper with the evidence or witnesses of the case.
The accused threatens witnesses or indulge in similar activities.
The application for cancellation of bail and the law related to the same are very complex and the services of highly qualified lawyer should always be taken by making all strong grounds.
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