Cancellation bail

Q.1 Is there any specific provision in the Cr.P.C for cancellation of bail?
Ans. No. But Section 437 (5) is the provision understood as the provision enabling
a Magistrate for cancellation of bail granted by the Magistrate in respect of a
non-bailable offence. Similarly, Section 439 (2) is the provision understood as
locating the power of the Sessions Judge and the High Court for cancelling the
bail. In an article titled “I beg to disagree with the proposition of law laid down
in James George @ Basaliyas Marthoma Yakob – Pradaman v. State of Kerala 2015 (4)
KLT 310 – B. Kemal Pasha - JJ” published in 2015 (4) KLT Journal page 29, I had
enumerated 41 decisions of the Apex Court in which the above provisions were
treated as provisions for cancellation of bail, contrary to the view taken by the
High Court of Kerala in the above verdict.
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Q.2 Is there any distinction between “cancellation of bail” and “forfeiture of

bond”?
Ans. Yes. “Cancellation of bail” means cancellation of the order granting bail.
This is ordinarily done for a “post-bail conduct” of the accused or for any
violation of the bail conditions by the accused. Once bail is cancelled, there has
to be a fresh order for release on bail, unlike in a case where the bond has been
forfeited.
In cases covered by Prasad Jacob v. State of Kerala – 2010 KHC 398 = 2010 Cri.L.J.
4137 = 2010 (2) KLT (SN) 68 – V. Ramkumar - J and Order dated 16-12-2019 of the
Supreme Court in State of Kerala & Another v. K. A. Sabu & Another in Criminal
Appeal No. 1902 of 2019 – Justice Arun Mishra, Justice Indira Banerjee – JJ, also
the order granting bail was set aside for the reason that bail ought not to have
been granted.
But “forfeiture of the bond” takes place where a bond is for “appearance” or for
“production of property” and breach of such a bond has been committed either by not
appearing or by not producing the property. Non-appearance or default in appearance
by the accused or non-production of the property by the obligant, may entail action
under Section 446 Cr.P.C. against the accused or his/ her surety or the obligant
under the bond. But, in a case where the bail bond alone has been forfeited under
Section 446/ 446A Cr.P.C., there can be a fresh bail on a fresh bond in the very
same earlier order for bail which has not been set aside or cancelled. (Vide
proviso to Section 446 A Cr.P.C.) While for the failure to pay the penalty under
Section 446 (2) Cr.P.C the “surety” is liable to imprisonment in “civil jail” by
virtue of the proviso to Section 446 (2) Cr.P.C, the accused is not so liable for
imprisonment. The penalty imposed by the Court can be recovered as if it were a
fine imposed by the Court under the Cr.P.C. (vide Section 446 (2) Cr.P.C)

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Q.3 What are the considerations for cancellation of bail ?

Ans. Cr.P.C. does not stipulate or enumerate the grounds for cancellation of bail.
The grounds for cancelling bail have been laid down by Judge-made law. Those
grounds are :-
a) The accused has misused his liberty by indulging in similar criminal activity.
b) The accused has interfered with the course of investigation.
c) The accused has attempted to tamper with the evidence or has attempted to
influence the prosecution witnesses.
d) The accused has threatened any witness or has indulged in similar activities
which would hamper smooth investigation.
e) The accused is likely to escape into another country.
f) The accused attempts to make himself scarce by going underground or being
unavailable to the Investigating Agency.
g) The accused attempts to place himself beyond the reach of his sureties.
(Vide –
Para 18 of Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary (2014) 10 SCC 754 =
2014 KHC 4678 – H. L. Dattu, S. A. Bobde - JJ;
Reghubir Singh v. State of Bihar (1986) 4 SCC 481 – O. Chinnappa Reddy, M. M. Dutt
- JJ;
Mehboob Davood Sheikh v. State of Maharashtra – (2004) 2 SCC 362 = AIR 2004 SC 2890
= 2004(2) KLT 812 (SC) – Doraiswamy Raju, Arijit Pasayat - JJ;
Paras 24 to 31 of State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21 = AIR 2005 SC
3490 – Ashok Bhan, R. V. Raveendran - JJ;
Paras 6 to 9 of Myakala Dharmarajam v. State of Telangana (2020) 2 SCC 743 = AIR
2020 SC 317 = 2020 KHC 6010 SC – L. Nageswara Rao, Hemant Gupta - JJ).
h) The order granting bail is perverse for the reason that irrelevant material of
substantial nature has been taken into account or relevant material has been
omitted from consideration. Vide Dinesh M.N. (S.P.) v. State of Gujarat – (2008) 5
SCC 66 – 3 Judges – Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam - JJ; Narendra K
Amin (Dr) v. State if Gujarat (2008) 13 SCC 584 – 3 Judges - Dr. Arijit Pasayat, P.
Sathasivam, Aftab Alam - JJ;
In Para 10 of Kanwar Singh Meena v. State of Rajasthan (2012) 12 SCC 180 = AIR 2013
SC 296 – Aftab Alam, Ranjana Prakash Desai – JJ, it was observed as follows:-
“The High Court or the Sessions Court can cancel bail even in cases where the order
granting bail suffers from serious infirmities resulting in miscarriage of justice.
If the Court granting bail ignores relevant materials indicating prima facie
involvement of the accused or takes into account irrelevant material which has no
relevance to the question of grant of bail to the accused, the High Court or the
Sessions Court would be justified in cancelling the bail. Such orders are against
the well recognized principles underlying the power to grant bail. Such orders are
legally infirm and vulnerable leading to miscarriage of justice and absence of
supervening circumstances such as the propensity of the accused to tamper with the
evidence, to flee from justice etc. would not deter the court from cancelling the
bail. The High Court or the Sessions Court is bound to cancel such bail orders
particularly when they are passed releasing the accused involved in heinous crimes
because they ultimately result in weakening the prosecution case and have adverse
impact on the society” – followed in para 8 of Myakala Dharmarajam v. State of
Telangana (2020) 2 SCC 743 = AIR 2020 SC 317 – L. Nageswara Rao, Hemant Gupta - JJ;
See also paras 36 and 37 of Jagjeet Singh v. Ashish Mishra @ Monu 2022 (3) KHC 449
(SC) – 3 Judges – N. V. Ramana, Surya Kant, Hima Kohli – JJ (Criminal Appeal No:
632/ 2022 decided on 18-04-2022).
Prasad Jacob v. State of Kerala – 2010 KHC 398 = 2010 Cri.L.J. 4137 = 2010 (2) KLT
(SN) 68 – K. Vinod Chandran, T. R. Ravi - JJ;
Para 19 of Ranjit Singh v. State of MP (2013) 16 SCC 797 – Anil R. Davr, Dipak
Misra - JJ;
Para 12 of Brij Nandan Jaiswal v. Munna (2009) 1 SCC 768 – C. K. Thakker, D. K.
Jain - JJ;
Geetha v. State of Kerala 2020 (3) KHC 238 – P. B. Suresh Kumar - J. This was a
case under the POCSO Act).

Q.4 Where the bail bond is for appearance of the accused, can the bond be forfeited
for the mere absence of the accused without an inquiry or motive as to whether the
absence was willful or otherwise?
Ans. Yes. Failure to appear before Court on the date specified is itself breach of
the bond and there is no need for any further enquiry or proof in support of
breach. (Vide Kunju Muhammed v. State of Kerala 1959 KLT 1118 = AIR 1960 Ker. 228 –
T. K. Joseph - J;
Kafoor Raja v. State of Kerala 1973 KLT 445 (DB) –
Thundichi v. State of Kerala – 2009 (4) KLT 67 (DB) - S. R. Bhanurmath – CJ, A. K.
Basheer - JJ;
There is no need for two notices one before, and one after forfeiture of bond.
Forfeiture for breach of the bond is automatic. (Vide Form No : 48 of the Second
Schedule to Cr.P.C.) (Vide Thundichi v. State of Kerala – 2009 (4) KLT 67 (DB) -
Bhanurmath – CJ, A. K. Basheer – JJ;
Usman v. State of Kerala – 2005 (4) KLT 348 and Geetha v. State of Kerala – 2006
(3) KLT 960 were overruled in Thundichi. The form of bail is Form No: 45 of the
Second Schedule to Cr.P.C. The Notice for breach of bond is in Form 48.)

Q.5 Should there be a notice to the accused and the sureties after forfeiture of
the bail bond ?
Ans. Yes. While a notice before forfeiture is not required, a notice after
forfeiture is a must. Thundichi v. State of Kerala – 2009 (4) KLT 148 - Bhanurmath
– CJ, A. K. Basheer – JJ. It is on receipt of such notice that the accused or his
sureties get an opportunity to explain or justify the breach of the condition of
the bond. In case the Court accepts the explanation and remits a portion of the
penalty, it has to give reasons in view of the amended Section 446 (3) Cr.P.C.

Q.6 Can the default bail granted by the Magistrate under Section 167 (2) Cr.P.C be
cancelled and if so, what is the provision for cancellation ?
Ans. Every person released on default bail granted by the Magistrate under Section
167 (2) Cr.P.C. is, by virtue of the last portion of paragraph (a) of the proviso
to Section 167 (2) Cr.P.C., deemed to be released under Chapter XXXIII. So, such
default bail can be cancelled either under Section 437(5) by the Magistrate himself
or under Section 439 (2) by the Sessions Court or the High Court. (Vide –
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Bashir v. State of Haryana (1977) 4 SCC 410 = AIR 1978 SC 55 – Fazal Ali, Kailasam
- JJ;
Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1- 3
Judges).
But, bail once granted under Section 167 (2) is deemed to have been granted under
Chapter XXXIII of Cr.P.C. and, therefore, merely because a charge sheet has
subsequently been filed, is no reason to cancel the bail which will be valid till
the conclusion of trial, unless it is specifically cancelled. (Vide –
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Dr. Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718 = AIR 1996 SC 2897
– 3 Judges - A. M. Ahmadi – CJ, B. P. Jeevan Reddy, N. P. Singh - JJ;
Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272 = AIR 1993 SC 1 – 3
Judges - A. M. Ahmadi, M. M. Punchhi, K. Ramaswamy - JJ;
Free Legal Aid Committee, Jamshedpur v. State of Bihar (1982) 3 SCC 378 = AIR 1982
SC 1463 - P. N. Bhagwati, Amarendra Nath Sen - JJ.)
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A default bail illegally or erroneously granted by a Court of Session under Section

167 (2) Cr.P.C. can be cancelled by the High Court under Section 439 (2) Cr.P.C.
(Vide para 10 oVenkatesan Balasubramaniyan v. The Intelligence Officer, D. R. I.
Bangalore 2020 (6) KHC 468 – 3 Judges – Ashok Bhusan, R. Subhash Reddy, M. R. Shah
– JJ.

Q.7 Can the Magistrate who granted bail under Sec. 436 Cr.P.C. in a “bailable
offence”, cancel the bail and by which provision of law ?
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Ans. No. Bail granted under Section 436 Cr.P.C. in the case of bailable offences
cannot be cancelled by the Magistrate. This is because, unlike Section 437 (5) in
respect of non-bailable offence, there is no enabling provision for cancellation of
bail in the Cr.P.C. with regard to a bailable offence. But, the Magistrate can
forfeit the bond under Section 446 Cr.P.C. if there is failure in appearance. An
order for bail in a bailable offence being one granted under Chapter XXXIII
Cr.P.C., Section 439(2) Cr.P.C. enables the High Court or the Court of Session to
cancel the bail granted to a person under the said Chapter.
Since a provision analogous to Section 439 (2) Cr.P.C. was absent in the 1898 Code,
the Supreme Court in Talab Haji Hussain v. Madhukar Purushotham Monde Kar AIR 1958
SC 376 – 3 Judges - N. H. Bhagwati, J. L. Kapur, P. B. Gajendragadkar – JJ, has
held that the High Court can cancel the bail granted in respect of a bailable
offence, under the inherent power of the High Court, if that is necessary to ensure
fair trial. The above decision has been approved by a Constitution Bench in Ratilal
Bhanji Mithani v. Asst.Collector of customs, Bombay AIR 1967 SC 1639 – 5 Judges –
K. N. Wanchoo – CJI, R. S. Bachawat, J. M. Shelat, V. Bhargava, G. K. Mitter – JJ.
The provision corresponding to Section 436 Cr.P.C. was Section 496 of the 1898 Code
where also there was no power given to the Magistrate to cancel the bail in respect
of a bailable offence. In Talab Haji Hussain v. Madhukar AIR 1958 SC 376 – 3 Judges
- N.H. Bhagwati, J.L. Kapur, P.B. Gajendragadkar – JJ, it was observed that it was
an omission by the legislature either due to oversight or inadvertence.
NOTE BY VRK:- One reason for not giving a power to a Magistrate to cancel bail in
respect of a bailable offence may be that the only condition which can be imposed
in a bailable offence is one regarding the time and place of appearance. If that
condition is breached, the Magistrate can take action for forfeiture of the bond
which has almost the same effect as cancellation of bail.

Q.8 Is it permissible for the Magistrate to cancel the bail granted by a Superior
Court such as the Court of Session or the High Court, consequent on the violation
of the bail conditions by the accused at any time after the appearance of the
accused during the stage of inquiry or trial ?
Ans. Yes. This question can arise in the following situations:-
a) As per Section 436 (1) Cr.P.C., if any person other than a person accused of a
non-bailable offence, is arrested or detained without a warrant by an officer-in-
charge of the police station (SHO) or appears or is brought before any Court, such
SHO or Court is bound to release him on bail. The wording in Section 436 (1)
Cr.P.C. is to the effect that if the offence alleged is a bailable offence, then
the person accused of such offence shall be released on bail by the SHO or by the
Court. Under Section 437 Cr.P.C the SHO or a Magistrate or a Special Court (other
than a Court of Session or deemed Sessions Court) can grant or refuse bail, at
different stages to a person accused of a non-bailable offence. After passing an
order granting bail with or without conditions and with or without sureties, the
actual release from custody will also be made by the SHO or Magistrate or the
Special Judge himself. Such release from custody will be after complying with the
requirements of Section 441 Cr.P.C by executing a bail bond for such amount as the
SHO or the Court may think sufficient. The bail bond in Form No: 45 of the Second
Schedule to Cr.P.C. is to be executed between such SHO or Magistrate or Special
Judge (on behalf of the Government) on the one hand, and the accused and his
sureties, if any, on the other.
b) In the case of the High Court and the Court of Session, the power to grant bail
is to be found in Section 439 (1) (a) Cr.P.C. Here, the phraseology of the Section
is different from that of Sections 436 and 437 Cr.P.C. Section 439 (1) Cr.P.C. says
that the High Court or a Court of Session may direct that the accused person in
custody be released on bail. But Section 437 Cr.P.C. provides that a person accused
of a non-bailable offence if arrested or detained without a warrant by an SHO or
appears (which includes “surrender”) or is brought before the Court, he may be
released. A Court “releasing an accused” and a Court “directing release of an
accused” are two different things. When the High Court or the Court of Session
directs the release of an accused person, the actual release from custody will have
to be done by the lower Court (i.e. by the Magistrate or the Special Court or the
Sessions Court, as the case may be). Such release can only be after complying with
Section 441 Cr.P.C. Very often, the Court of Session or the High Court will specify
the bond amount for the accused and the sureties and the satisfaction of the same
will be directed to be had by the lower Court. If there are conditions imposed by
the Court of Session or the High Court, those conditions also will have to be
incorporated in the bond to be executed before the lower Court as provided under
Section 441 (2) Cr.P.C. (Vide Mahesh v. State of Kerala 2010 (4) KLT 921 – K. Hema
– J )
c) There can be a situation when the Court of Session or the High Court may have to
grant bail to an accused in custody in a case pending before those Courts. If the
accused is in custody before or after the committal of the case to the Court of
Session and if the Sessions Judge is inclined to grant bail to the accused, the
Court of Session may directly release the accused on bail. Here, the bail bond
itself will have to be executed before the Court of Session and not before the
committal Magistrate who has become “functus officio” after the order of committal.
In such cases, in the event of any violation of the bail conditions, the Court of
Session itself may have to cancel the bail and direct the arrest of the accused and
on production before the Court to commit him to custody. Same would be the position
of the High Court as well. In the case of the High Court, if bail is granted by the
High Court in an appeal or revision or in a petition under Section 482 Cr.P.C.
pending before it, the bail bond will have to be executed before the appropriate
trial Court.
Case Law on the feasibility of an inferior Court cancelling the bail granted by a
superior Court
1. Ali Ahammed v. State of Kerala 1986 KLT 28 - S. Padmanabhan – J – There is an
observation in para 11 as –
“Being Courts of superior jurisdiction, bail granted by the Sessions Judge or the
High Court cannot be cancelled by the Magistrate”
NOTE BY VRK: The above observation was only a passing remark. That was not a case
where the bail granted by a superior Court was being cancelled by an inferior
Court. In that case although most of the accused persons were granted anticipatory
bail by the Court of Session, all of them were subsequently granted regular bail by
the Magistrate himself. It was apprehending that at the time of committal the
Magistrate would cancel their bail and commit them to custody by resort to Section
209 (a) and (b) Cr.P.C that the accused persons approached the High Court. The High
Court allayed their fears by observing that the provision in Section 209 (a) and
(b) was subject to the provisions relating to bail and that at the time of
committal there could not be any automatic remand to custody of an accused who is
on bail. This position was reiterated by Justice K.T. Thomas in Vikraman v. State
of Kerala 1986 KLT 1372.
In Raghuvir Singh v. State of Bihar AIR 1987 SC 149, interpreting similar provision
in Section 309 (2) Cr.P.C. Justice O. Chinnappa Reddy also held that Section 309
(2) Cr.P.C does not empower the Court to remand an accused to custody if he is on
bail.
2. P.K. Shaji (Thammanam Shaji) v. State of Kerala AIR 2006 SC 100 (K.G.
Balakrishnan – J ) – That was a case where the Court of Session while granting bail
with conditions, had empowered the Magistrate below to take action for violation in
the event of the accused committing any violation of the bail conditions. It was
noticing the above empowerment in the bail order that the Supreme Court rejected
the contention of the accused that the Magistrate had no jurisdiction to take steps
for cancelling the bail granted by the High Court. There is, of course, an
observation in paragraph 6 as follows :-
“The plea of the appellant’s counsel is that if the Sessions Court had granted
bail, the order of cancellation of such bail should also have been passed by the
Sessions Court or by any superior Court and not by the learned Magistrate who is
not empowered to cancel it. As a general proposition, the plea raised by the
appellant is correct.”
NOTE: - The inferior Court cancelling the bail granted by a superior Court without
any authorization, was not in issue in that case having regard to the view taken by
the Apex Court.
3. Mahesh v. State of Kerala 2010 (4) KLT 921 (K. Hema – J ) – After referring to
the difference in the phraseology of Sections 437 and 439 Cr.P.C, it was held that
if any condition in the bail order issued by a superior Court is violated by the
accused, it is not necessary for the Magistrate to address such superior Court to
cancel the bail and that the Magistrate himself can independently proceed against
the accused even if there is no request to cancel the bail.
4. Noushad v. State of Kerala 2016 (1) KLT 775 (Abraham Mathew – J ) – Disagreeing
with the view taken in James George @ Basalios Marthoma Yakob Pradaman v. State of
Kerala 2015 (4) KHC 943 (Kemal Pasha – J ), it was held that Sections 437 (5) and
439 (2) Cr.P.C empower the Magistrates and Courts of Session respectively to cancel
the bail granted to the accused in the light of his post-bail conduct. Since the
bail order granted in that case by the High Court had empowered the Sessions Court
to cancel the bail in the event of any violation of the bail conditions, the High
Court permitted the First Informant victim to move the Sessions Court for
cancellation of bail.
5. Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 (P.K. Goswami, V.D.
Tulzapurkar – JJ ) – In para 16 the Apex Court compared the power of the High Court
and of the Court of Session to cancel bail under Section 498 (2) of the 1898 Code
and Section 439 (2) of the 1973 Code and observed that the restriction under the
old Code that the same Court (either the High Court or the Court of Session) which
granted bail alone could cancel the bail, has been lifted under Section 439 (2) of
the 1973 Code. The following observation in para 16 is relevant :-
“In other words, under S.498 (2) of the old Code, a person who had 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, is lifted in the new Code under S.439 (2). Under S.439 (2) of the
new Code a High Court may commit a person released on bail under Chapter XXXIII by
any Court including the Court of Session to custody, if it thinks appropriate to do
so. It must, however, be made clear that a Court of Session cannot cancel a bail
which has already been 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.”
NOTE by VRK: This means that if there are supervening circumstances during trial
like the accused violating the bail condition imposed by the High Court, then the
Sessions Court will be justified in cancelling the bail.
6. Talab Haji Hussain v. Madhukar AIR 1958 SC 376 – 3 Judges - N.H. Bagwati, J.L.
Kapur, P.B. Gajendragadkar – JJ – That was a case where the condition for
appearance in the bail granted to the accused who had allegedly committed a
bailable offence, was violated. Thereupon the complainant moved the Magistrate for
cancelling the bail granted to the accused. The Magistrate dismissed the
application on the ground that there was no power to cancel the bail granted in a
bailable offence, unlike in the case of a non-bailable offence. The matter was
taken up before the High Court of Bombay where Chief Justice M.C. Chagla and
Justice Datar took the view that even if the Magistrate is helpless for want of a
power to cancel bail granted under the 1898 Cr.P.C, the inherent power of the High
Court under Section 561 A of the 1898 Code (corresponding to Section 482 of the
1973 Code) could be exercised and accordingly the High Court cancelled the bail. On
appeal to the Supreme Court the order of the High Court was confirmed observing
inter alia that “omission of legislature to make a specific provision in that
behalf is clearly due to an oversight or inadvertence and cannot be regarded as
deliberate”. The following observation in paragraph 6 are apposite -
“Now it is obvious that the primary object of criminal procedure is to ensure a
fair trial of accused persons. Every criminal trial begins with the presumption of
innocence in favour of the accused; and provisions of the Code are so framed that a
criminal trial should begin with and be throughout governed by this essential
presumption; but a fair trial has naturally two objects in view; it must be fair to
the accused and must also be fair to the prosecution. The test of fairness in a
criminal trial must be judged from this dual point of view. It is therefore of the
utmost importance that, in a criminal trial, witnesses should be able to give
evidence without any inducement or threat either from the prosecution or the
defence. A criminal trial must never be so conducted by the prosecution as would
lead to the 'conviction of an innocent person; similarly the progress of a criminal
trial must not be obstructed by the accused so as to lead to the acquittal of a
really guilty offender. The acquittal of the innocent and the conviction of the
guilty are the objects of a criminal trial and so there can be no possible doubt
that, if any conduct on the part of an accused person is likely to obstruct a fair
trial, there is occasion for the exercise of the inherent power of the High Courts
to secure the ends of justice. There can be no more important requirement of the
ends of justice than the uninterrupted progress of a fair trial; and it is for the
continuance of such a fair trial that the inherent powers of the High Courts are
sought to be invoked by the prosecution in cases where it is alleged that accused
persons, either by suborning or intimidating witnesses, are obstructing the smooth
progress of a fair trial, Similarly, if an accused person who is released on bail
jumps bail and attempts to run to a foreign country to escape the trial, that again
would be a case where the exercise of the inherent power would be justified in
order to compel the accused to submit to a fair trial and not to escape its
consequences by taking advantage of the fact that he has been released on bail and
by absconding to another country. In other words, if the conduct of the accused
person subsequent to his release on bail puts in jeopardy the progress of a fair
trial itself and if there is no other remedy which can be effectively used against
the accused person, in such a case the inherent power of the High Court can be
legitimately invoked. In regard to non bailable offences there is no need to invoke
such power because S.497 (5) (corresponding to Section 437 (5) of the 1973 Code)
specifically deals with such cases. The question which we have to decide in this
case is whether exercise of inherent power under S.561A against persons accused of
bailable offences, who have been released on bail, is contrary to or inconsistent
with the provisions of S.496 of the Code of Criminal Procedure.”

My Conclusion
The difference in the phraseology of Sections 437 and 439 (1) (a) Cr.P.C as noted
in Situation (b) above at the beginning of this answer, coupled with the view taken
in Mahesh v. State of Kerala 2010 (4) KLT 921 – K. Hema - J, is sufficient to hold
that the Court of Session is entitled to cancel the bail granted by the High Court
in the event of any violation of the bail conditions, even without any delegation
by the High Court to the Court of Session to take action for cancellation. In spite
of the observation in Guru Charan Singh (Supra – AIR 1978 SC 179) wherein the Apex
Court held that a Court of Session cannot cancel a bail which has already been
granted by the High Court, it has been clarified by saying that if new
circumstances arise during the progress of the trial after an accused person has
been admitted to bail by the High Court, the Sessions Court would be justified in
cancelling the bail. The above observation has to be understood in the light of the
observation by the 3 Judge Bench in Talab Haji Hussain (Supra – AIR 1958 SC 376)
wherein it is held that “if the conduct of the accused person subsequent to his
release on bail puts in jeopardy the progress of a fair trial, it is a justifiable
ground for cancellation of bail”.

Q.9 Should not the bail granted to the accused be cancelled, if he remains absent
on the day when witnesses to be examined, are present?
Ans. Yes. The Court can cancel the bail. In State of U.P. v. Shambhunath Singh –
AIR 2001 SC 1403 – K. T. Thomas, R. P. Sethi – JJ, the Apex Court observed as
follows:-
“We make it abundantly clear that if a witness is present in court he must be
examined on that day. The court must know that most of the witnesses could attend
the court only at heavy cost to them, after keeping aside their own avocation.
Certainly they incur suffering and loss of income. The meagre amount of Bhatta
(allowance) which a witness may be paid by the Court is generally a poor solace for
the financial loss incurred by him. It is a sad plight in the Trial Courts that
witnesses who are called through summons or other processes stand at the doorstep
from morning till evening only to be told at the end of the day that the case is
adjourned to another day. This primitive practice must be reformed by presiding
officers of the Trial Courts and it can be reformed by every one provided the
presiding officer concerned has a commitment to duty. No sadistic pleasure in
seeing how other persons summoned by him as witnesses are stranded on account of
the dimension of his judicial powers can be a persuading factor for grating such
adjournments lavishly, that too in a casual manner.”
“If any court finds that the day to day examination of witnesses mandated by the
Legislature cannot be complied with due to the non cooperation of accused or his
counsel the court can adopt any of the measures indicated in the sub-section i.e.,
remanding the accused to custody or imposing cost on the party who wants such
adjournments (the cost must be commensurate with the loss suffered by the
witnesses, including the expenses to attend the court). Another option is, when the
accused is absent and the witness is present to be examined, the Court can cancel
his bail, if he is on bail (unless an application is made on his behalf seeking
permission for his counsel to proceed to examine the witnesses present even in his
absence provided the accused gives an undertaking in writing that he would not
dispute his identity as the particular accused in the case.” (Vide paras 8 and 13)

Q.10 Is not a prosecution witness turning hostile to the prosecution, a

circumstance justifying the cancellation of the bail granted to the accused?
Ans. No. The fact that the prosecution witnesses have turned hostile, cannot by
itself justify the inference that the accused has won them over, unless there is
reliable material to suggest the same. (Vide State through Delhi Admn. v. Sanjay
Gandhi (1978) 2 SCC 411 = AIR 1978 SC 961 - 3 Judges – Y. V. Chandrachud – CJI, S.
Murtaza Fazl Ali, P. N. Shingal - JJ).

Q.11 In a case where the court is convinced from the Attendance Register maintained
by the SHO that the accused has violated the bail condition regarding reporting
before the Police, is it necessary to give notice and an opportunity of being heard
to the accused before his bail is cancelled?
Ans. Yes. The accused cannot be condemned unheard. He may have valid explanation to
be offered for not reporting before the police, even if it is true. (See Gurudev
Singh v. State of Bihar – (2005) 13 SCC 286 = AIR 2000 SC 3556 (1) - G. B.
Pattanaik, U. C. Banerjee – JJ – held that the report of the process server to the
effect that the accused persons refused summons cannot be treated as sacrosanct and
that the accused was entitled to notice before cancellation of their bail.); Para 6
of Thammanam Shaji (P.K. Shaji) v. State of Kerala - AIR 2006 SC 100 – K. G.
Balakrishnan, B. N. Srikrishna - JJ).
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Q.12 Who can apply for cancellation of bail ?

Ans. The State or the aggrieved party can apply for cancellation of bail. The High
Court can also cancel the bail suo motu. Any member of the public who has a concern
in the matter can move the High Court for reminding it of the need to invoke the
said power suo motu. (See Ratinam v. State –(2000) 2 SCC 391 = AIR 2000 SC 1851 =
2004(1) KLT 612 (SC) – K. T. Thomas, Mohapatra – JJ. )
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A victim is also entitled to be heard right from the stage of investigation till
the culmination of proceedings in appeal or revision. (Vide para 24 to 27 of
Jagjeet Singh v. Ashish Mishra @ Monu 2022 (3) KHC 449 (SC) – 3 Judges – N. V.
Ramana, Surya Kant, Hima Kohli – JJ (Criminal Appeal No: 632/2022 decided on 18-04-
2022.)
Q.13 The accused has been granted bail in a case involving an offence punishable
under Section 326 IPC. Subsequently, the victim dies and the Investigating Officer
incorporates the offence punishable under Section 302 IPC. Is it not a circumstance
justifying cancellation of the bail already granted to the accused ?
Ans. No. Merely because a graver offence has subsequently been incorporated after
the enlargement of the accused on bail, that by itself is not a circumstance to
cancel the bail. For cancellation of bail, the conditions for doing so should be
present. A bail can be cancelled only if the accused has been guilty of breach of
the bail conditions or if he has abused the liberty granted to him. Upon
incorporation of a graver offence the bail already granted to the accused earlier
will not be of any avail to him. He will have to apply for fresh bail with regard
to the graver offence. (See Prahalad Singh Bhati v. N.C.T. Delhi – AIR 2001 SC 1444
– K. T. Thomas, R. P. Sethi - JJ; Thomas v. State of Kerala – 2008 (3) KLT 248 – V.
Ramkumar - J). In Pradeep Ram v. State of Jharkhand and Another AIR 2019 SC 3193 =
2019 Cri.L.J. 3801 – Ashok Bhushan, K. M. Joseph – JJ, it has been held as
follows :-
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Where after grant of bail to an accused, further cognizable and non - bailable
offences are added:
(i) The accused can surrender and apply for bail for newly added cognizable and non
- bailable offences. In event of refusal of bail, the accused can certainly be
arrested.
(ii) The investigating agency can seek order from the Court under S.437(5) or
439(2) of Cr.P.C. for arrest of the accused and his custody.
(iii) The Court, in exercise of power under S.437(5) or 439(2) of Cr.P.C., can
direct for taking into custody the accused who has already been granted bail after
cancellation of his bail. The Court in exercise of power under S.437(5) as well as
S.439(2) can direct the person who has already been granted bail to be arrested and
commit him to custody on addition of graver and non - cognizable offences which may
not be necessary always with order of cancelling of earlier bail.
(iv) In a case where an accused has already been granted bail, the investigating
authority on addition of an offence or offences may not proceed to arrest the
accused, but for arresting the accused on such addition of offence or offences it
need to obtain an order to arrest the accused from the Court which had granted the
bail.

Q.14 In a murder case the High Court grants bail to the accused during crime stage.
Subsequently, the accused is charge sheeted by the police and the case is
thereafter committed to the Sessions Court. The accused is granted fresh bail by
the Sessions Court. Thereafter the de facto complainant approaches the High Court
for cancellation of the bail granted during the crime stage alleging that the
accused had violated one of the conditions imposed by the High Court. Is it not
permissible for the High Court to cancel the bail ?
Ans. No. The bail granted during the crime stage had worked itself out after the
charge sheet was filed. The bail order which is operative is the one that was
granted by the Sessions Court and not by the High Court. (Vide State of Kerala v.
Moidheen Kunji – 2012 (1) KLT 203 – K. T. Sankaran - J).

Q.15 Supposing, apart from imposing conditions like prohibiting the accused from
intimidating the prosecution witnesses, attempting to tamper with the prosecution
evidence etc. the bail order passed by the Magistrate during the stage of inquiry
also directs the accused to appear before Court on the dates of posting the case.
The accused commits breach of the condition for appearance before Court by
unjustifiably remaining absence. Is it a ground for forfeiture of the bond or
cancellation of bail ?
Ans. It is a ground for both forfeiture of the bail bond as well as cancellation of
the bail order. Since the bail condition for appearance has been breached, the bond
is automatically forfeited resulting in the cancellation of the bail bond by the
operation of Section 446A (a) Cr.P.C. Resultantly, the accused and the sureties
have become liable for action under Section 446 Cr.P.C.
Since the bail condition for appearance has also been violated, the Magistrate can
cancel the bail by resort to Section 437 (5) Cr.P.C. The fact that in cases where
one of the bail conditions is for appearance, both the remedies by way of
forfeiture of bond as well as cancellation of bail, are available, is indicated by
the wording of Section 436 (2) Cr.P.C. which says –
“where a person has failed to comply with the conditions of the bail-bond as
regards the time and place of attendance, the Court may refuse to release him on
bail, when on a subsequent occasion in the same case, he appears before the Court
or is brought in custody and any such refusal shall be without prejudice to the
powers of the Court to call upon any person bound by such bond to pay the penalty
thereof under Section 446.”

Q.16 When is a bail “bond” cancelled and when is a bail “order” cancelled ?
Ans. A bail bond gets cancelled when the accused commits breach of the bail
condition for appearance resulting in the automatic forfeiture of the bond under
Section 446 A (a) Cr.P.C.
A bail order becomes liable to be cancelled under two situations—
i. Where the order granting bail was perverse in that no reasonable Magistrate or
Judge, well instructed in law, would have granted bail. In such case the superior
court can set aside the bail order. (This is covered by Puran’s case (Supra –
(2001) 6 SCC 338); Dinesh’s case (Supra – (2008) 5 SCC 66); Brij Nandan Jaiswal’s
case (Supra – (2009) 1 SCC 768); Dr. Narendra K. Amin’s case (Supra – (2008) 13 SCC
584); Myakala Dharmarajan’s case (Supra – AIR 2020 SC 317).
ii. Where, after his release on bail, the accused has violated any of the bail
conditions, the Court can cancel the bail either by resort to Section 437 (5)
Cr.P.C. if it is a Magistrate, or by resort to Section 439 (2) Cr.P.C. if it is a
Court of Session or the High Court.