Cancellation of Bail

Section 483(2), BNSS 2023

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.

⚠ Who may cancel, and who may not

Only the High Court or the Court of Session may act under section 483(2). A Magistrate cannot cancel bail granted by a superior court, and cannot review his own order granting bail once made.

The Magistrate is not powerless, however: where a person released by him breaches a condition, or where sureties become insufficient, sections 488 and 489 permit him to issue a warrant and require fresh sureties.

And in a bailable offence the power in section 483(2) does not apply, that sub-section speaking of a person released under this Chapter in a non-bailable case. Where a person released as of right in a bailable offence abuses his liberty, the remedy is the High Court’s inherent power.

📖 Puran v. Rambilas, (2001) 6 SCC 338

Facts: An order granting bail was challenged on the ground that it had been passed without consideration of the material and on reasoning that could not be supported. It was contended that, since no supervening circumstance was alleged, the application was in truth one for cancellation and must fail on the settled principles governing cancellation.

Held: The Supreme Court held that a clear distinction must be drawn between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, and, within the latter, between cancellation on supervening circumstances and the setting aside of an order which was itself unsustainable. Where the complaint is that the accused has misused his liberty — tampering, threatening, absconding — the Court asks whether cogent and overwhelming circumstances exist to withdraw liberty already conferred. But where the complaint is that the order granting bail was perverse, was passed without application of mind, or ignored relevant material or the seriousness of the accusation, the superior court is not cancelling bail on supervening grounds at all: it is correcting an order that should never have been made, and the principles governing cancellation on supervening circumstances do not apply to that exercise. The Court held that a wholly illegal or perverse order granting bail is liable to be set aside, and that the absence of any supervening circumstance is no answer to such a challenge.

Ratio: A distinction must be drawn between cancelling bail on supervening circumstances and setting aside an order which was itself perverse or passed without application of mind. The principles governing the first do not apply to the second, and the absence of a supervening circumstance is no answer to a challenge to a defective order.

📖 Mahipal v. Rajesh Kumar @ Polia, (2020) 2 SCC 118

Facts: Bail was granted by an order which set out no reasons and gave no indication that the Court had considered the material or the nature of the accusation. The order was challenged, and the question was the standard of reasoning required in an order granting bail and the consequence of its absence.

Held: The Supreme Court held that an order granting bail must reflect an application of mind: it need not contain a detailed evaluation of the evidence, but it must show that the Court considered the relevant factors — the nature and gravity of the accusation, the role attributed to the accused, the material in support, the antecedents, the likelihood of his fleeing or of interfering with witnesses. An order which merely records that bail is granted, without any indication of the reasons, does not satisfy that requirement, and the want of reasons is itself a ground on which the order may be set aside by a superior court. The Court held that where the order is challenged, the superior court considers whether there was a valid exercise of the discretion, and that this is distinct from an application to cancel bail on the ground of supervening misconduct. It emphasised that liberty is at stake on both sides of such an application, and that a reasoned order protects the accused as much as the prosecution.

Ratio: An order granting bail must reflect an application of mind to the relevant factors, though not a detailed evaluation of the evidence. The want of reasons is itself a ground for setting the order aside, and that exercise is distinct from cancellation on supervening misconduct.

The position stated shortly

1. Section 483(2): a High Court or Court of Session may direct that any person released on bail under Chapter XXXV be arrested and committed to custody.

2. Cancellation takes away liberty already conferred, and calls for cogent and overwhelming circumstances.

3. The grounds concerning the accused’s conduct: interference with the course of justice; abuse of the concession; repetition of the offence; and a supervening circumstance arising after the grant.

4. A fifth and different ground: that the order itself is unsustainable — granted without reasons, on irrelevant considerations, in disregard of material, or without jurisdiction.

5. The two are different exercises. The first looks at what the accused has done since; the second at what the Court did when it released him: Puran v. Rambilas.

6. The principles governing cancellation on supervening grounds do not apply to a challenge to a defective order, and the absence of a supervening circumstance is no answer to such a challenge.

7. An order granting bail must reflect an application of mind to the relevant factors, though not a detailed evaluation of the evidence: Mahipal.

8. The want of reasons is itself a ground for setting the order aside.

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

10. Only the High Court or Court of Session may cancel under section 483(2). In a bailable offence the remedy where liberty is abused is the High Court’s inherent power.