📖 Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362

Facts: A person released on bail was alleged to have threatened a witness in the case, and an application was made for the cancellation of his bail. The question was the approach a court should take to such an allegation.

Held: The Supreme Court held that an accused who threatens or attempts to influence a witness places himself outside the protection of the order which released him, and that such conduct is among the strongest grounds for cancellation. The Court held that the whole object of granting bail is to secure the attendance of the accused without prejudice to the trial, and that an accused who uses his liberty to interfere with the course of justice has forfeited the basis on which it was given. It held that the correct approach is to examine whether the conduct alleged has been established on material, and not merely asserted: a general allegation of interference, unsupported by particulars, is not enough. But where the material shows that the accused has attempted to influence or intimidate a witness, the Court held that cancellation ordinarily follows — the prejudice being not only to the witness but to the integrity of the trial itself.

Ratio: An accused who threatens or attempts to influence a witness places himself outside the protection of the order which released him, and such conduct is among the strongest grounds for cancellation — provided it is established on material and not merely asserted.

📖 Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632

Facts: Bail was cancelled on grounds which, it was contended, went to the correctness of the original order rather than to anything the accused had done since his release. The Supreme Court examined the distinction between the two kinds of application.

Held: The Supreme Court held that the considerations which govern the cancellation of bail are different from those which govern its grant, and that very cogent and overwhelming circumstances are necessary for an order cancelling bail already granted. The Court held that generally speaking, the grounds for cancellation are supervening circumstances — that the accused has interfered with the course of justice, has evaded or attempted to evade the process, abused the concession of bail, or that there is a likelihood of his committing a further offence. But the Court held that bail may also be cancelled where the order granting it was itself unsustainable — where it was passed without application of mind, or ignored relevant material — and that this is a different exercise, in which the absence of a supervening circumstance is no answer. It emphasised that an application must make clear which of the two it invokes, since the material required is quite different.

Ratio: Cancellation requires very cogent and overwhelming circumstances, the grounds being generally supervening — interference, evasion, abuse of the concession, or likelihood of a further offence. But an unsustainable order may also be set aside, and that is a different exercise.

⚠ The errors that defeat such applications

Arguing that the offence is grave. Gravity was weighed when bail was granted and cannot be re-weighed. It is not a ground of cancellation at all.

Asking for cancellation when the complaint is that bail should never have been granted. That is a challenge to the order, and must be framed and argued as one — the absence of a supervening circumstance being no answer to it.

Alleging interference without particulars, so that the accused cannot meet it and the Court cannot test it. What was said, to whom, and when.

And moving the wrong court. Only the High Court or the Court of Session may cancel under section 483(2). In a bailable offence that sub-section does not apply at all, and the remedy where liberty is abused is the High Court’s inherent power.

The position stated shortly

1. Rejection is a decision not to give; cancellation is a decision to take away, and the second requires more.

2. Rejection needs no separate application; cancellation requires one, by the prosecution, the informant, or a threatened witness.

3. Rejection is decided on the risks the release would create; cancellation on what the accused has done since, or a supervening circumstance.

4. Cancellation requires cogent and overwhelming circumstances: Naresh Kumar Yadav.

5. The usual grounds are interference with the course of justice, evasion, abuse of the concession, and the likelihood of a further offence.

6. An accused who threatens or attempts to influence a witness places himself outside the protection of the order which released him: Mehboob Dawood Shaikh.

7. But the conduct must be established on material, not merely asserted — a general allegation of interference is not enough.

8. Bail may also be cancelled where the order granting it was itself unsustainable — a different exercise, in which the absence of a supervening circumstance is no answer.

9. Gravity is not a ground of cancellation. It was weighed when bail was granted and cannot be re-weighed.

10. And only the High Court or Court of Session may cancel under section 483(2); in a bailable offence the remedy is the inherent power.