📖 Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118

Facts: Bail granted to persons accused of a grave offence was challenged by the State, and the question was the considerations governing the cancellation of bail already granted as against those governing its grant or refusal in the first place, and the respective powers of the Magistrate, the Court of Session and the High Court.

Held: The Supreme Court held that the considerations which apply when a Court is asked to cancel bail already granted are not the same as those which apply when it is considering whether to grant it. In the latter, the Court weighs the nature and seriousness of the offence, the character of the evidence, the circumstances peculiar to the accused, the reasonable possibility of his presence not being secured, the likelihood of the witnesses being tampered with, and the larger interest of the public or the State. In the former, the very fact that the accused has been at liberty is itself a circumstance, and the Court must find overwhelming circumstances to justify committing him to custody again — typically interference with the course of justice, evasion, or abuse of the concession. The Court held that the special powers conferred on the High Court and the Court of Session are wide and are not fettered by the restrictions which apply to a Magistrate, but that they are to be exercised judicially and with care, particularly where the offence is one punishable with death or imprisonment for life.

Ratio: The considerations governing cancellation are not the same as those governing the grant. The fact that the accused has been at liberty is itself a circumstance, and overwhelming circumstances are required to commit him to custody again.

📖 Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508

Facts: Bail was granted to an accused with an extensive record of criminal antecedents, the order proceeding largely on the footing that a co-accused had been released and that parity required the same treatment. The State sought cancellation.

Held: The Supreme Court held that parity is not a principle that operates in a vacuum: a court granting bail on the ground that a co-accused has been released must be satisfied that the role attributed to the two is comparable and that the relevant circumstances are the same. Where the applicant has criminal antecedents which the co-accused does not, parity does not apply, and an order granting bail which ignores those antecedents has failed to consider a relevant factor. The Court held that the antecedents of an accused are a material consideration in the grant of bail, since they bear directly on the likelihood of his repeating the offence and on the risk to witnesses; and that an order passed in disregard of them is liable to be set aside. It emphasised that the discretion in bail matters must be exercised with a sense of responsibility to the community as well as to the accused, and cancelled the bail.

Ratio: Parity does not operate in a vacuum: it requires comparable roles and comparable circumstances. Criminal antecedents are a material consideration, and an order granting bail in disregard of them is liable to be set aside.

⚠ The error this distinction is meant to prevent

The commonest application in this area is one headed “cancellation” which in truth argues that the bail should never have been granted — that the offence was grave, that the material was strong, that the Court below took the wrong view.

That is not cancellation. It is a challenge to the order, and it must be framed and argued as one: the question is whether the order was perverse, unreasoned or passed on irrelevant considerations, not whether the accused has since misconducted himself.

Conversely, an application which alleges tampering, threats or absconding is a true application for cancellation, and it does not need to show that the original order was wrong. The order may have been entirely correct when made.

Framing the application correctly decides what the applicant must prove, and an application framed for the wrong exercise frequently fails on that ground alone.

Section 483, BNSS 2023 — the substance

(1) A High Court or Court of Session may direct —

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the Court shall, before granting bail to a person accused of an offence triable exclusively by the Court of Session, or which though not so triable is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor — unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided further that the Court shall, before granting bail to a person accused of the sexual offences the section specifies, give notice of the application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of the hearing of the application for bail to a person accused of those offences.

(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.

The position stated shortly

1. Rejection is a decision not to give; cancellation is a decision to take away. The second requires cogent and overwhelming circumstances.

2. The considerations are not the same. On a grant, the Court weighs the offence, the evidence, the antecedents and the risks. On a cancellation, the fact that the accused has been at liberty is itself a circumstance: Gurcharan Singh.

3. Gravity is a relevant factor on rejection but not a ground by itself for cancellation, having been weighed when bail was granted.

4. Rejection may be by any court to which the application is made; cancellation under section 483(2) only by the High Court or Court of Session.

5. An application headed “cancellation” which in truth argues that bail should never have been granted is a challenge to the order, and must be framed and argued as one.

6. Parity does not operate in a vacuum: it requires comparable roles and circumstances, and criminal antecedents are a material consideration which an order ignoring them fails to address: Neeru Yadav.

7. Section 483(1)(a): the superior courts may grant bail free of the bars in section 480(1) which prevent a Magistrate from doing so in the gravest cases.

8. Section 483(1)(b): they may set aside or modify any condition a Magistrate has imposed.

9. The first proviso requires notice to the Public Prosecutor before bail in a Sessions-triable or life-punishable case, unless impracticability is recorded in writing.

10. The second proviso and sub-section (1A) require notice within fifteen days in the specified sexual offences, and make the presence of the informant obligatory at the hearing.