enlarging an accused on bail that the accused shall not
involve in any offence while on bail. At the same time, bail
cannot be denied unnecessarily to an accused by
foreseeing that there is possibility of the accused involving
in other offences while on bail, when there are no criminal
antecedents on the part of such an accused. In cases
wherein no criminal antecedents are alleged, it should not
be a reason to deny bail to an accused on the ground that
there is chance of his involvement in other offences in case
he is enlarged on bail. The reasonable grounds for
believing that he is likely to commit any offence while on bail
depends on the existence of criminal antecedents on the
part of the said accused. In cases wherein no criminal
antecedents are alleged on the part of such an accused, it
cannot be said that there are reasonable grounds for
believing that he is likely to commit any offence while on
bail. A speaking order is required in the matter with regard
to the said ground also.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 17TH DAY OF NOVEMBER 2015
Crl.MC.No. 6222 of 2015
INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU,
SUB ZONE, KAKKANAD, KOCHI.
Vs
LIJO K.JOSE,
B. KEMAL PASHA, J.
Citation; 2016 ALLMR(CRI)JOURNAL)121
1) Whether the powers, which can
be exercised by the Sessions Court
under Section 439(2) Cr.P.C. and the
powers which can be exercised by
the High Court under Section 439(2)
Cr.P.C., are the same?
2) Whether, under the guise of
powers under Section 439(2) Cr.P.C.,
the Sessions Court, or under Section
437(5) Cr.P.C., a court of a
Magistrate, can review its orders
granting bail?
3) Can the grounds for inviting the
intervention of Sessions Court and
the High Court under Section 439(2)
Cr.P.C. be the same, as those
available to challenge the validity of
an order granting bail?
4) What are the matters to be
considered for enlarging an accused
on bail under Section 37(1)(b) of the
Narcotic Drugs and Psychotropic
Substances Act, 1985(hereinafter
referred to as the 'NDPS Act')?
2. Alleging that the application for bail in an NDPS
case filed as Crl.M.P.No.1455/2015 was allowed by the
learned Additional Sessions Judge-VIII, Ernakulam, without
giving an opportunity of being heard to the Special Public
Prosecutor for the 'Narcotic Control Bureau'(hereinafter
referred to as 'the NCB'), thereby totally disregarding the
mandatory procedure contemplated under Section 37(1)(b)
(i) of the NDPS Act, the NCB had approached the said court
under Section 439(2) Cr.P.C. through Crl.M.P.No.1560/15 in
S.C.No.357/15, seeking the cancellation of bail. Through
Annexure A2 order in Crl.M.C.No.5210/15, the court below
dismissed the said Crl.M.P. Presently, the NCB has
approached this Court, challenging the said order through
Crl.M.C.No.5210/15. Sessions Case No.357/2015 is
pending for the offence punishable under Section 8(c) read
with Sections 21(c), 23(c), 25, 28 and 29 of the NDPS Act.
The same has arisen from O.R No. 5/2014 registered by the
NCB, Sub Zone, Kochi.
3. Similarly, A1 to A4 in S.C.No.338/15 were granted
bail by the Additional Sessions Court-VII, Ernakulam,
allegedly, without giving an opportunity of being heard to the
Special Public Prosecutor for NCB, thereby totally
disregarding the mandatory procedure under Section 37(1)
(b) (i) of the NDPS Act. A1 and A4 were enlarged on bail
through Crl.M.P.No.1477/15, and A2 and A3 were enlarged
on bail through Crl.M.P.No.1454/15. Challenging those
orders, Crl.M.P.No.1497/15 and Crl.M.P.No.1498/15 were
filed by the NCB, before the court below, under Section 439
(2) Cr.P.C., seeking the cancellation of bail. Through
common order dated 04.08.2015, the court below allowed
Crl.M.P.No.1497/15 and Crl.M.P.No.1498/15. Challenging
the said order, the said accused persons have filed
Crl.M.C.No.5095/15. Sessions Case No.338/2015 has
arisen from O.R No.4/2014, for the offence under Section 8
(c) read with Sections 21(c), 23(c), 27A, 28 and 29 of the
NDPS Act.
4. The Additional Sessions Court-VIII, Ernakulam
granted bail to the 3rd accused in S.C.No.357/15 through the
order in Crl.M.P.No.1709/15. It is by challenging the said
order, the NCB has approached this Court through
Crl.M.C.No.6222/15 under Section 439(2) Cr.P.C. read with
Section 482 Cr.P.C.
5. The 2nd Additional Sessions Court, granted bail to
the 3rd accused in S.C.No.337/15 through Annexure A3 in
Crl.M.C.No.4917/15. The NCB has approached this Court by
challenging the said order under Section 439(2) Cr.P.C. read
with Section 482 Cr.P.C. Sessions Case No.337/2015 has
arisen from O.R No.2/2014, for the offence under Section 8
(c) read with Sections 21(c), 23(c), 27A, 28 and 29 of the
NDPS Act.
6. According to the NCB, A1 and A3 in Sessions
Case No.357/2015 were granted bail by the court below
through Crl.M.P.No.1455/2015, without giving an opportunity
of being heard to the Special Prosecutor of the NCB and
even without serving copies on the NCB. Similarly, the court
below has granted bail to A1 and A4 in Sessions Case
No.338/2015 through Crl.M.P.No.1477/2015, even without
serving a copy of that petition on the NCB and without
hearing the Special Prosecutor of the NCB.
7. Courts below have granted bail to the 3rd accused
in S.C.No.357/15, and to the 3rd accused in Sessions Case
No.337/2015, after hearing both sides. Dissatisfied with the
said orders, the Intelligence Officer, NCB has come up
through Crl.M.C.No.6222/15 and Crl.M.C.No.4917/2015
under Section 439(2) read with Section 482 Cr.P.C.
8. Heard Sri. MVS Nampoothiry, learned Special
Public Prosecutor for NCB, and learned counsel Sri. K.N.
Chandrababu, Sri.T.K. Kunhabdulla and Sri.P.A. Martin Roy.
9. The learned counsel for the petitioners in
Crl.M.C.No.5095/2015 has argued that the NCB ought not
to have approached the court below under Section 439(2)
Cr.P.C to get the bail granted to those petitioners cancelled.
According to the learned counsel for the petitioners, the
matters to be considered for challenging an order granting
bail are on a different footing than the matters to be
considered while dealing with an application under Section
439(2) Cr.P.C. The argument is that only on the occurrence
of some supervening circumstances or violations of bail
conditions after the passing of the order enlarging the
accused on bail, the provisions under Section 439(2) Cr.P.C
can be invoked. Same is the argument taken up by the
respondent in Crl.M.C.No.5210/2015 also.
10. The learned Special Prosecutor for the NCB has
argued that when there is total violation of the statutory
provisions in passing an order enlarging the accused on
bail, there is nothing wrong in invoking the provisions under
Section 439(2) Cr.P.C for getting the bail cancelled. It is
argued that, when the court below has given a go-by to the
mandatory provisions contained in Section 37(1)(b) of the
NDPS Act, the NCB can have recourse to the provisions
under Section 439(2) Cr.P.C to get the bail cancelled.
11. Per contra, the learned counsel for the respondent
in Crl.M.C.No.4917/2015 has argued that there is no reason
for the NCB to challenge Annexure-A3 order which was
passed on merits after hearing both sides. It is further
argued that matters like the possibility of the commission of
other offences while on bail, a probable chance to abscond
etc. are matters alien for consideration at the time of
enlarging an accused on bail; if not, that will result in a
situation wherein the court is inviting grounds for passing an
order of preventive detention. In short, the learned counsel
for the respondent is supporting the order passed by the
court below.
12. Section 37 of the NDPS Act says that:-
"Offences to be cognizable and non-
bailable - (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) -
(a) every offence punishable under
this Act shall be cognizable;
(b) no person accused of an offence
punishable for [offences under Section 19
or section 24 or section 27A and also for
offences involving commercial quantity]
shall be released on bail or on his own
bond unless-
(i) the Public Prosecutor has been
given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor
opposes the application, the court is
satisfied that there are reasonable grounds
for believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail.
(2) The limitations on granting of bail
specified in clause (b) of sub-section (1)
are in addition to the limitations under the
Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in
force, on granting of bail."
13. As per Section 37(1)(b), it is a mandatory
procedure that the Public Prosecutor should be given an
opportunity to oppose the application. As per Section 37(1)
(b)(ii), in case, where the Public Prosecutor opposes the
application, the court has to consider two aspects for
enlarging the accused on bail. The first one is that the court
below should be satisfied that there are reasonable grounds
for believing that he is not guilty of such offence. The
second ground is that the court below should be satisfied
that there are reasonable grounds for believing that he is not
likely to commit any offence while on bail. Only on the
satisfaction of those two aspects, it can be said that the
court has the power to enlarge an accused on bail.
14. Even though Section 37(1)(b)(ii) of the NDPS Act
says that, the aforesaid two grounds arise for consideration
only when the Prosecutor opposes the application, I am of
the firm view that in appropriate cases, the said two grounds
arise even when the Public Prosecutor does not oppose the
application. The same is evident from Section 37(2) of the
NDPS Act. As per Section 37(2) of the NDPS Act, the
limitations contained in Section 37(1)(b) are in addition to
the limitations under the Code of Criminal Procedure, 1973.
Therefore, even when the Prosecutor does not oppose the
petition, the court is not bound to enlarge an accused on
bail. Even when the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such
offence and that he is not likely to commit any offence while
on bail, if there are some other grounds, normally available
to the court to deny bail to an accused under the Cr.P.C, the
court is not expected to enlarge the accused on bail.
15. In such case, we will have to think about a
situation wherein notice is not served on the Public
Prosecutor or a case wherein the Prosecutor does not get
an opportunity to oppose the application. Even in such
circumstances, the court concerned is duty bound to
examine those grounds; and in such cases, the court has to
examine whether there are reasonable grounds for believing
that the accused is not guilty of such offence and that there
are reasonable grounds for believing that he is not likely to
commit any offence while on bail. Over and above it, the
court is duty bound to consider whether there are limitations,
in addition to the aforesaid limitations under the Code of
Criminal Procedure, 1973 or any other law for the time being
in force, in granting bail.
16. When there is a mandatory provision to give an
opportunity to the Public Prosecutor to oppose the granting
of bail by the court, this Court is of the firm view that it will
pave way for raising a genuine ground to challenge the
order granting bail, in case bail is granted to the accused
without giving such an opportunity to the Public Prosecutor.
In cases wherein bail is denied, then the prosecution need
not challenge the said order.
17. Now, the question to be considered is whether
such statutory violations in granting bail pave way to the
prosecution to challenge the order as such or to have
recourse to Section 439(2) Cr.P.C. and to seek the
cancellation of bail under that provision?
18. This Court had an occasion to consider the
aspect as to whether the provisions contained under Section
439(2) Cr.P.C. are relating to cancellation of bail? Still, this
Court is of the view that the said provision contained in the
Code of Criminal Procedure is not for cancellation of bail in
all matters. The powers granted to Magistrates under
Section 437(5) Cr.P.C. and the power granted to the
Sessions Court as well as the High Court under Section 439
(2) Cr.P.C. are not for cancellation of bail in all
circumstances. Of course, when those powers are lawfully
exercised within the meaning and spirit of those provisions,
it may result in a situation wherein such an order has the
effect of an order of cancellation of bail. The impact of
orders under the said provision may result in an order which
is having an impact of the cancellation of bail. When the
legislature does not specifically show that those powers are
powers for cancellation of bail, this Court is of the firm view
that the said provision may not be made use of in all
circumstances, for cancellation of bail.
19. Section 437(5) Cr.P.C. says:
"Any Court which has released a person
on bail under sub-section (1), or sub-section
(2), may, if it considers it necessary so to do,
direct that such person be arrested and
commit him to custody."
Section 439(2) Cr.P.C. Says:
"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."
20. Apart from the provisions contained under
Section 446A Cr.P.C., the Code does not give any indication
regarding the circumstances in which the bail can be
cancelled. Section 446A Cr.P.C. says:
"Cancellation of bond and bailbond-
Without prejudice to the provisions of
section 446, where a bond under this
Code is for appearance of a person in a
case and it is forfeited for breach of a
condition--
(a) the bond executed by such person as
well as the bond, if any, executed by one
or more of his sureties in that case shall
stand cancelled; and
(b) thereafter no such person shall be
released only on his own bond in that
case, if the Police Officer or the Court, as
the case may be, for appearance before
whom the bond was executed, is satisfied
that there was no sufficient cause for the
failure of the person bound by the bond to
comply with its condition;
Provided that subject to any other
provision of this Code he may be released
in that case upon the execution of a fresh
personal bond for such sum of money and
bond by one or more of such sureties as
the Police Officer or the Court, as the case
may be, thinks sufficient."
21. As per the said provision, where a bond under the
Code is for appearance of a person in a case, and it is
forfeited for breach of a condition, the powers under Section
446A (a) as well as (b) can be invoked. It may not be
understood that the breach of that condition which results in
forfeiture of the bond and bail bond is not confined to the
breach of the condition for appearance only. The wordings
of the provision "where a bond under this Code is for
appearance of a person in a case and it is forfeited for
breach of a condition" clearly indicates that the forfeiture will
result even in violation of conditions other than the
conditions for appearance also. At the same time, such a
forfeiture of a bond under Section 446A should be one
executed for the appearance of a person in a case.
Therefore, it is evident that in cases wherein an accused
who is enlarged on bail, executes a bond for appearance in
a case, commits breach of any of those conditions
contained in the order granting bail, forfeiture of the bond as
well as bail bond is possible. At the same time, in all such
cases, it may not be just, in forfeiting the bonds of the
sureties also.
22. Let us take a case wherein a condition has been
incorporated in the order granting bail that he shall not
involve in any offence while on bail. In such a case, even if
such an accused who is enlarged on bail through that order
happens to become an accused in another case, it will not
be just in forfeiting the bond executed by the sureties and
asking them to pay the penalty. There can be breach of
other similar conditions also. Except the violation of the
condition for the appearance of the accused in that case,
the sureties cannot be called upon to pay the penalty after
forfeiting their bonds. At the same time, on account of the
violation of any of such conditions, the bail of the accused
happens to be cancelled and in such case, the accused fails
to appear before the court in the case, it paves the way for
the forfeiture of the bonds of the sureties, and it will
ultimately entail in an order for payment of penalty by the
sureties also.
23. Now, the next question to be decided is as to how
such bail can be cancelled. If it is a violation of any of the
conditions in the bail bond, necessarily the courts have to
exercise the powers conferred under Section 437(5) or
Section 439(2) Cr.P.C., as the case may be, and can order
that such person be arrested and committed to custody.
Even in the circumstances in which a bond executed by the
accused is cancelled and forfeited under Section 446A
Cr.P.C., and he fails to appear in the case or even otherwise,
the prosecution or the investigating officer can point out
such a situation to the courts concerned, inviting the
concerned courts to exercise the powers conferred under
Sections 437(5) and 439(2) Cr.P.C. That does not mean that
the said powers conferred under Section 437(5) and Section
439(2) Cr.P.C. can be made use of as a provision for
deciding the validity of an order enlarging the accused on
bail, or to review an order passed by those courts enlarging
those accused on bail.
24. In Abdul Basit v. Md. Abdul Kadir Chaudhary
[2014 (4) KLT SN 88 (C.No.111) SC], it was held:
"The concept of setting aside an unjustified,
illegal or perverse order is different from the
concept of cancellation of a bail on the ground
of accused's misconduct or new adverse facts
having surfaced after the grant of bail which
require such cancellation and a perusal of the
aforesaid decision would present before us
that an order granting bail can only be set
aside on grounds of being illegal or contrary to
law by the Court superior to the Court which
granted the bail and not by the same
Court."(Emphasis supplied)
It has been further held:
"Under Chapter XXXIII, S.439(1) empowers
the High Court as well as the Court of Session
to direct any accused person to be released
on bail. S.439(2) empowers the High Court to
direct any person who has been released on
bail under Chapter XXXIII of the Code be
arrested and committed to custody, i.e., the
power to cancel the bail granted to an
accused person. Generally the grounds for
cancellation of bail, broadly, are, (i) the
accused misuses his liberty by indulging in
similar criminal activity, (ii) interferes with the
course of investigation, (iii) attempts to tamper
with evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities
which would hamper smooth investigation, (v)
there is likelihood of his fleeing to another
country, (vi) attempts to make himself scarce
by going underground or becoming
unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach of
his surety, etc. These grounds are illustrative
and not exhaustive."
25. In Kanwar Singh Meena v. State of Rajasthan
[2012 (4) KLT SN 105 (C.No.93) SC], it was held:
"While cancelling bail under S.439(2) of the
Code, the primary considerations which weigh
with the court are whether the accused is
likely to tamper with the evidence or interfere
or attempt to interfere with the due course of
justice or evade the due course of justice.
But, that is not all. 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 accused involved in
heinous crimes because they ultimately result
in weakening the prosecution case and have
adverse impact on the society. Needless to
say that though the powers of this court are
much wider, this court is equally guided by the
above principles in the matter of grant or
cancellation of bail."
26. In Rizwan Akbar Hussain Syyed v. Mehmood
Hussain and another [(2007) 10 SCC 368], it was held in
paragraph 7:
"Cancellation of bail should not be done in a
routine manner. Where it appears to the
superior court that the court granting bail
acted on irrelevant materials or there was non
application of mind or where court does not
take note of any statutory bar to grant of bail,
order for cancellation of bail can be made."
27. What is discernible from Abdul Basit(supra),
Kanwar Singh(supra) and Rizwan Akbar Hussain Syyed
(supra) is that the orders granting bail by a subordinate
court can be cancelled by the Sessions Court as well as the
High Court with the aid of Section 439(2) Cr.P.C. Even in
cases wherein the orders granting bail suffers from serious
infirmities resulting in miscarriage of justice or bail has been
granted by ignoring relevant materials and by taking into
account irrelevant materials, such powers can be exercised.
When the court of a Magistrate is passing such an order of
bail under Chapter XXXIII of the Code, the Sessions Court
can also pass orders cancelling the bail by invoking the
power under Section 439(2) Cr.P.C. Similarly, if the Sessions
Court is passing an order enlarging bail which suffers from
serious infirmities or by ignoring relevant materials or by
taking into account irrelevant materials, the High Court can
pass orders cancelling the bail by having recourse to the
provisions contained under Section 439(2) Cr.P.C.
28. In Union of India v. Hassan Ali Khan [2011 (4)
KLT SN 86 (C.No.94) SC], it was held:
"We cannot ignore the distinction between an
application for cancellation of bail and an
appeal preferred against an order granting
bail. The two stand on different footings. While
the ground for cancellation of bail would relate
to post-bail incidents, indicating misuse of the
said privilege, an appeal against an order
granting bail would question the very legality
of the order passed."
29. In Savitri Agarwal and others v. State of
Maharashtra and another [(2009) 8 SCC 325], the
distinction between the aforesaid two aspects has been
made clear in paragraph 29 that-
"Merely because the High Court had a
different view on same set of material which
had been taken into consideration by the
Sessions Judge, in our view, was not a valid
ground to label the order passed by the
Sessions Judge as perverse. It also appears
to us that the High Court has overlooked
the distinction of factors relevant for
rejecting bail in a non-bailable case in the first
instance and the cancellation of bail already
granted."(Emphasis supplied)
It was further held-
"Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of bail already
granted, which, in our opinion, were missing
in the instance case. Nothing was brought to
our notice from which it could be inferred that
the appellants have not cooperated in the
investigations or have in any manner, abused
the concession of bail granted to them."
30. The said finding was entered by the Apex Court
based on the decision in Dolat Ram and others v. State of
Haryana [(1995) 1 SCC 349], wherein it was held that "the
rejection of bail in a non bailable case at the initial stage
and the cancellation of bail have to be considered and dealt
with on a different basis".
31. In State of U.P. v. Amarmani Tripathi [(2005) 8
SCC 21], it was held in paragraph 17 that-
"In an application for cancellation, conduct
subsequent to release on bail and the
supervening circumstances alone are
relevant. But in an appeal against grant of
bail, all aspects that were relevant under
Section 439 read with Section 437, continue
to be relevant. We, however, agree that while
considering and deciding the appeals against
grant of bail, where the accused has been at
large for a considerable time, the post-bail
conduct and supervening circumstances will
also have to be taken note of. But they are
not the only factors to be considered as in the
case of applications for cancellation of
bail."(Emphasis supplied)
32. In Kalyan Chandra Sarkar v. Rajesh Ranjan
[(2004 7 SCC 528], it was held-
"The law in regard to grant or refusal of bail is
very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course.
Though at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need
not be undertaken, there is a need to indicate
in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
from non application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are:
(a) The nature of accusation and the
severity of punishment in case of conviction
and the nature of supporting evidence.
(b) Reasonable apprehension of
tampering with the witness or apprehension
of threat to the complainant.
(c) Prima facie satisfaction of the court
in support of the charge."
33. By relying Kalyan Chandra Sarkar (supra), the
Apex Court has held in Amarmani Tripathi (supra) in
paragraph 18-
"It is well settled that the matters to be
considered in an application for bail are (i)
whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence; (ii)
nature and gravity of the charge; (iii) severity
of the punishment in the event of conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail; (v) character,
behaviour, means, position and standing of
the accused; (vi) likelihood of the offence
being repeated; (vii) reasonable
apprehension of the witnesses being
tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail."
34. In Dolat Ram (supra), it was held-
"Rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail
already granted, have to be considered and
dealt with on different basis. Very cogent and
overwhelming circumstances are necessary
for an order directing the cancellation of the
bail, already granted. Generally speaking, the
grounds for cancellation of bail, broadly
(illustrative and not exhaustive) are:
interference or attempt to interfere with the
due course of administration of justice or
evasion or attempt to evade the due course of
justice or abuse of the concession granted to
the accused in any manner. The satisfaction
of the court, on the basis of material placed
on the record of the possibility of the accused
absconding is yet another reason justifying
the cancellation of bail. However, bail once
granted should not be cancelled in a
mechanical manner without considering
whether any supervening circumstances have
rendered it no longer conducive to a fair trial
to allow the accused to retain his freedom by
enjoying the concession of bail during the
trial." (Emphasis supplied)
35. In Subhendu Mishra v. Subrat Kumar Mishra
and another [2000 SCC (Cri)1508], it was held:
"Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of the bail, already
granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and
not exhaustive) are: interference or attempt to
interfere with the due course of administration
of justice or evasion or attempt to evade the
due course of justice or abuse of the
concession granted to the accused in any
manner. The satisfaction of the court, on the
basis of material placed on the record of the
possibility of the accused absconding is yet
another reason justifying the cancellation of
bail. However, bail once granted should not
be cancelled in a mechanical manner without
considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trial to allow the accused
to retain his freedom by enjoying the
concession of bail during the trial."(Emphasis
supplied)
36. Both the learned counsel Sri.Chandrababu and
Sri.MVS Namboothiry have relied on Gurcharan Singh and
others v. State (Delhi Administration) [(1978) 1 SCC 118],
wherein it was held in paragraph 16 that-
"Section 439 of the new Code confer special
powers on High Court or Court of Session
regarding bail. This was also the position
under Section 498 Cr.P.C. of the old Code.
That is to say, even if a Magistrate refuses to
grant bail to an accused person, the High
Court or the Court of Session may order for
grant of bail in appropriate cases. Similarly
under Section 439(2) of the new Code, the
High Court or the Court of Session may direct
any person who has been released on bail to
be arrested and committed to custody. In the
old Code, Section 498(2) was worded in
somewhat different language when it said that
a High Court or Court of Session may cause
any person who has been admitted to bail
under sub-section (1) to be arrested and may
commit him to custody. In other words, under
Section 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
Section 439(2). Under Section 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.
If, however, a Court of Session had admitted
an accused person to bail, the State has two
options. It may move the Sessions Judge if
certain new circumstances have arisen which
were not earlier known to the State and
necessarily, therefore, to that Court. The State
may as well approach the High Court being
the superior Court under Section 439(2) to
commit the accused to custody. When,
however, the State is aggrieved by the order
of the Sessions Judge granting bail and there
are no new circumstances that have cropped
up except those already existed, it is futile for
the State to move the Sessions Judge again
and it is competent in law to move the High
Court for cancellation of the bail. This position
follows from the subordinate position of the
Court of Session vis-a-vis the High
Court."(Emphasis supplied)
37. In Puran v. Rambilas [(2001) 6 SCC 338], it was
held-
"Further, it is to be kept in mind that the
concept of setting aside the unjustified illegal
or perverse order is totally different from the
concept of cancelling the bail on the ground
that the accused has misconducted himself or
because of some new facts requiring such
cancellation."
The same was based on the decision in Gurcharan Singh
(supra).
38. In Puran (supra), it was held-
"In the hierarchy of courts, the High Court is
the superior court. A restrictive interpretation
which would have the effect of nullifying
Section 439(2) cannot be given. Whey
Section 439(2) grants to the High Court the
power to cancel bail, it necessarily follows that
such powers can be exercised also in respect
of orders passed by the Court of Session. Of
course cancellation of bail has to be on
principles set out herein above and only in
appropriate cases."
39. In Aslam Babalal Desai v. State of Maharashtra
[(1992) 4 SCC 272], it was held-
"Bail granted under Section 437(1) or (2) or
Section 439(1) can be cancelled under
Sections 437(5) and 439(2) where (i) the
accused misuses his liberty by indulging in
similar criminal activity, (ii) interferes with the
course of investigation (iii) attempts to tamper
with evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities
which would hamper smooth investigation, (v)
there is likelihood of his fleeing to another
country, (vi) attempts to make himself scarce
by going underground or becoming
unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach of
his surety, etc. These grounds are illustrative
and not exhaustive. Rejection of bail stands
on one footing but cancellation of bail is a
harsh order because it interferes with the
liberty of the individual and hence it must not
be lightly resorted to."(Emphasis supplied)
It was further held in paragraph 21 that-
"The power of the High Court or Court of
Session to cancel bail is exercisable vis-a-vis
an order passed by the High Court or the
Court of Session under sub-section (1) of
Section 439, as the case may be, as also to
an order of bail passed by a Court other than
the High Court or the Court of Session under
sub-sections (1) and (2) of Section 437 of the
Code. Bail orders under the aforesaid
provisions by the very nature are decisions
on merit and if a review is attempted a
strong case has to be mad out so as to
secure cancellation of bail. Hence the
apparent distinction in the approach of the
Court while granting bail and cancelling bail.
This field is covered entirely by judge-made
law." (Emphasis supplied)
40. In Dinesh M.N. (S.P.) v. State of Gujarat [(2008)
5 SCC 66], it was held in paragraph 23-
"Even though the re-appreciation of the
evidence as done by the court granting bail is
to be avoided, the court dealing with an
application for cancellation of bail under
Section 439(2) can consider whether
irrelevant materials were taken into
consideration. That is so because it is not
known as to what extent the irrelevant
materials weighed with the court for accepting
the prayer for bail."
41. It was also held that even if the order is
interlocutory in nature, the High Court's inherent jurisdiction
under Section 482 is not affected by the provisions of
Section 397(3) Cr.P.C. The High court may refuse to
exercise its jurisdiction under Section 482 Cr.P.C. on the
basis of self-imposed restriction is a different aspect. It
cannot be denied that for securing the ends of justice, the
High Court can interfere with the order which causes
miscarriage of justice or is palpably illegal or is unjustified. It
was so decided by the Apex Court in Madhu Limaye v.
State of Maharashtra [(1977) 4 SCC 551] and in Krishnan
v. Krishnaveni [(1997) 4 SCC 241]. Therefore, it is evident
that even without the aid of Section 439(2) Cr.P.C., the High
Court is fully empowered under Section 482 Cr.P.C. to
cancel an order passed by the subordinate court when such
orders result in miscarriage of justice, or it is palpably illegal
or unjustified.
42. In Mehboob Dawood Shaikh v. State of
Maharashtra [2004 (2) KLT 812 (SC)], it was held in
paragraph 8-
"It is, therefore, clear that when a person to
whom bail has been granted either tries to
interfere with the course of justice or attempts
to tamper with evidence or witnesses or
threatens witnesses or indulges in similar
activities which would hamper smooth
investigation or trial, bail granted can be
cancelled. Rejection of bail stands on one
footing, but cancellation of bail is a harsh
order because it takes away the liberty of an
individual granted and is not to be lightly
resorted to."
43. A three Judge Bench of the Apex Court headed
by Justice V.R.Krishna Iyer had dealt with the matter in
Mohan Singh v. Union Territory, Chandigarh [AIR 1978
SC 1095]. In that case, the bail granted by the Sessions
Court was cancelled by the High Court on the ground that
the accused did not disclose to the Sessions Court at the
time of passing the order granting bail that he had moved for
bail at the High Court also. It was held that even then,
refusal of bail is not an indirect process of punishing an
accused person before he is convicted. Their Lordships had
relied on Gurucharan Singh's case (supra). It was further
held that there was no allegation against the appellant of
interference with the course of justice or other well-
established grounds for refusal of bail. The Apex Court
allowed the appellant to continue on bail until further orders,
to the contrary passed by the Sessions Court, if good
grounds are made out to its satisfaction.
44. The tenor of the decision in Mohan Singh (supra)
clearly indicates that the grounds to be taken up for the
cancellation of bail are subsequent events happened after
the enlargement of the accused on bail. It indicates that in
case wherein the accused is indulging in interference with
the course of justice or makes out other good grounds, the
bail can be cancelled.
45. In Ramcharan v. State of M.P. [(2004) 13 SCC
617], it was held that the order of bail can be cancelled on
existence of cogent and overwhelming circumstances, but
not on a re-appreciation of the evidence. Relying on Dolat
Ram's case (supra), the Apex Court further held that some
supervening circumstances should be made out warranting
the recalling of the order granting bail.
46. In Subodh Kumar Yadav v. State of Bihar and
Another [(2009) 14 SCC 638], it was held in paragraph 16
that:
"In fact it is now well settled that if a
superior court finds that the court
granting bail had acted on irrelevant
material, or if there was non-application
of mind or failure to take note of any
statutory bar to grant bail, or if there
was manifest impropriety as for
example failure to hear the Public
Prosecutor/complainant where required,
an order for cancellation of bail can in
fact be made. Further, while cancelling
bail, the superior court would be justified
in considering the question whether
irrelevant materials were taken into
consideration by the court granting bail."
47. In Narendra K. Amin (Dr.) v. State of Gujarat
and Another [(2008) 13 SCC 584], a three Judge Bench of
the Apex Court has held in paragraph 18 that:
"As is evident from the rival stands, one
thing is clear that the parameters for
grant of bail and cancellation of bail are
different. There is no dispute to this
position. But the question is if the trial
court while granting bail acts on
irrelevant materials or takes into account
irrelevant materials whether bail can be
cancelled. Though it was urged by
learned counsel for the appellant that the
aspects to be dealt with while
considering the application for
cancellation of bail and on appeal
against the grant of bail, it was fairly
accepted that there is no scope for filing
an appeal against the order of grant of
bail. Under the scheme of the Code the
application for cancellation of bail can be
filed before the Court granting the bail if
it is a Court of Session or the High
Court."
It was held in paragraph 20 that:
"It has been fairly accepted by the
learned counsel for the parties that in
some judgments the expression "appeal
in respect of an order of grant of bail"
has been used in the sense that the
State can move the higher court."
48. From a conjoined reading of the precedents
rendered by the Apex Court above, it can be concluded
that, in a case wherein the order enlarging the accused on
bail in a non bailable offence suffers from any statutory bar,
or it manifests impropriety as for example; failure to hear the
Public Prosecutor, the power to order the said accused be
arrested and committed to custody shall be exercised by the
`Superior Court', under Section 439(2) Cr.P.C. Of course,
such an order passed by such `Superior Court' shall have
the effect of the cancellation of bail. Further, in such case,
while considering the matter under Section 439(2) Cr.P.C.,
the 'Superior Court' can also consider the question whether
irrelevant materials were taken into account by the court for
granting bail. Therefore, it is evident that when the order
suffers from any statutory bar, or impropriety, as noted
above, or in cases wherein relevant materials were not
considered and irrelevant materials were taken into account,
the Superior Court can pass such an order, which has the
effect of cancellation of bail.
49. Factors to be considered at the time of granting
bail are totally different from the matters to be considered
while cancelling a bail already granted. Supervening
circumstances, the violation of statutory provisions, non-
consideration of relevant materials, consideration of
irrelevant materials in granting bail and violations of bail
conditions are matters that can be considered for ordering
the arrest of the concerned accused, and for his committing
to custody under Section 439(2) Cr.P.C. In such cases, on
all the aforesaid grounds, except the ground of violation of
bail conditions, the Superior Court alone has the power to
pass an order, which has the effect of cancellation of bail. If
the bail is granted by the court of a Magistrate under
Chapter XXXIII of the Code, and such order suffers from
statutory bar, non-consideration of relevant materials,
consideration of irrelevant materials and also when it suffers
from impropriety in the sense that the Prosecutor was not
heard in matters in which the Prosecutor has to be heard,
either the Sessions Court or the High Court under Section
439(2) Cr.P.C. can pass orders, which has the effect of
cancellation of bail. In cases wherein, the orders passed by
the Sessions Court under Section 439(1) Cr.P.C. suffer from
such defects, it is for the High Court being the Superior
Court alone can be approached, for such an order of arrest
under Section 439(2) Cr.P.C.
50. In cases wherein, there is violation of bail
conditions, even the court of the Magistrate has the power
to order arrest of the accused and his/her committing to
custody under Section 437(5) Cr.P.C., in cases wherein bail
was granted under Section 437(1) or 437(2) Cr.P.C. If bail is
granted under Section 436 Cr.P.C. in bailable offences, the
courts of the Magistrates have no such power under Section
437(5) Cr.P.C.; whereas even in such case, the Sessions
Court or the High Court can exercise such power under
Section 439(2) Cr.P.C. When violation of bail conditions are
there, the court which passes the order, has the power to
cancel the bail by invoking the provisions under Section
446A Cr.P.C. read with Section 437(5) as well as 439 (2)
Cr.P.C. When there is violation of bail conditions, the
prosecution or the aggrieved need not rush to the Superior
Courts; whereas they can approach the very same court
under Section 437(5) Cr.P.C. as well as under Section 439
(2) Cr.P.C. for getting the accused arrested. True that, the
arrest of the accused and his/her committing to custody as
contained in Sections 437(5) Cr.P.C. and 439(2) Cr.P.C. has
the effect of cancellation of bail.
51. As this Court has already found, in cases covered
by Section 37(1)(b) of the NDPS Act, 1985, the court has a
duty to hear the Public Prosecutor concerned. The Public
Prosecutor shall be given an opportunity to oppose the
application seeking the enlargement of the accused on bail.
Sri.MVS Namboothiry has invited the attention of this Court
to the decision in Intelligence Officer, Narcotics Control
Bureau v. Sambhu Sonkar and another [(2001) 2 SCC
562], wherein it was held in paragraph 9-
"The contention that the liberal interpretation
given by the High Court to Section 37 is
justified as it affects personal liberty of a
citizen who is yet to be tried is not acceptable.
Considering the legislative intent of curbing the
practice of giving bail on technical ground in a
crime which adversely affects the entire
society including the lives of a number of
persons and the object of making stringent
provisions or control of illicit traffic in narcotic
drugs and psychotropic substances, there is
no reason to accept the construction of the
section which its language can hardly bear."
52. In the case of Crl.M.C.No.5210 of 2015 and
Crl.M.C.No.5095 of 2015, it seems that when the court
below has chosen to enlarge the concerned accused
persons on bail, the Special Public Prosecutor of the NCB
was not heard. It seems that an opportunity of being heard
was not extended to the Special Public Prosecutor of the
NCB. Thereafter, it seems that in Crl.M.C.No.5210 of 2012
and Crl.M.C.No.5095 of 2015, the NCB has approached the
court below with a petition to cancel the bail under Section
439(2) Cr.P.C. The said applications were dismissed by the
court below. It seems that when the court below had chosen
to grant bail to the said accused persons by overlooking the
statutory mandate of giving an opportunity of being heard to
the Public Prosecutor, the NCB ought to have challenged
the order granting bail before this Court under Section 482
Cr.P.C. or ought to have approached this Court seeking the
arrest of the said accused and their committing to custody,
under Section 439(2) Cr.P.C. Instead of that, the NCB has
approached the court below through an application under
Section 439(2) Cr.P.C., which reflects the request for review.
The criminal courts subordinate to the High Courts have no
power of review and, therefore, such an application ought to
have been preferred before the High Court. Matters being
so, this Court is of the view that the impugned order in
Crl.M.C.No.5210 of 2015 is not liable to be interfered with.
53. In the case of Crl.M.C.No.5095 of 2015, the NCB
has approached the court below under Section 439(2)
Cr.P.C. seeking the cancellation of bail. It seems that the
court below has by invoking the provision under Section 439
(2) Cr.P.C. has cancelled the bail of the said accused
persons through the impugned order. As held above, when
the court below has exercised such a power under Section
439(2) Cr.P.C., it seems that the court below has gone to the
extent of reviewing its earlier order, which was not at all
permissible under law. As I have held earlier, under the
cover of Section 437(5) Cr.P.C. or 439(2) Cr.P.C., the courts
of the Magistrates or the Sessions Judges cannot exercise
the power of review. In such case, the NCB ought to have
approached this Court either under Section 439(2) or under
Section 482 Cr.P.C. When the Superior Court was not
approached for getting such orders, the impugned order
passed by the court below in Crl.M.C.No.5095 of 2015 is not
legally sustainable, and the same is liable to be quashed
under Section 482 Cr.P.C.
54. The matter in Crl.M.C.No.4917 of 2015 and
Crl.M.C.No.6222 of 2015 stand on a different footing. In that
case, it was after hearing both sides, the courts below have
chosen to pass orders for enlarging the accused on bail.
According to the NCB, the courts below have not considered
the relevant materials and the courts below have exercised
the power to enlarge the accused on bail by considering
irrelevant materials.
55. The learned counsel for the respondent in
Crl.M.C.No.4917 of 2015 Sri.T.K.Kunhabdulla has invited the
attention of this Court to Pullachi Chandu v. State of
Kerala reported in [1978 KLT 665]; wherein it was held that:
"The mere fact that an accused may feel
free to commit an offence again if he is
released cannot be a reason for
detaining him in custody, for, such an
approach will result in using the power
to keep an accused in judicial custody
for a different objective, that of
preventive detention."
I fully agree with the said observation made by the learned
Judge.
56. The 2nd limb of the restrictions contained in Section
37(1)(b)(ii) of the NDPS Act should not be understood to
mean in all cases under the NDPS Act, there are reasonable
grounds for believing that the accused is likely to commit
any offence while on bail, when there are no criminal
antecedents on the part of that accused. When there are
criminal antecedents on the part of such an accused, after
considering the facts and circumstances of those cases, it
may be possible for the court to entertain a view that there
reasonable grounds exist for believing that the accused is
likely to commit any offence while on bail.
57. It is possible to incorporate a condition in an order
enlarging an accused on bail that the accused shall not
involve in any offence while on bail. At the same time, bail
cannot be denied unnecessarily to an accused by
foreseeing that there is possibility of the accused involving
in other offences while on bail, when there are no criminal
antecedents on the part of such an accused. In cases
wherein no criminal antecedents are alleged, it should not
be a reason to deny bail to an accused on the ground that
there is chance of his involvement in other offences in case
he is enlarged on bail. The reasonable grounds for
believing that he is likely to commit any offence while on bail
depends on the existence of criminal antecedents on the
part of the said accused. In cases wherein no criminal
antecedents are alleged on the part of such an accused, it
cannot be said that there are reasonable grounds for
believing that he is likely to commit any offence while on
bail. A speaking order is required in the matter with regard
to the said ground also.
58. It seems that in Annexure-A3 order in
Crl.M.C.No.4917 of 2015, the court below has adverted to
the rival contentions. At the same time, it seems that the
court below has not stated anything with regard to the
matters to be decided while granting bail, as per Section 37
(1)(b)(ii) of the NDPS Act. Therefore, this Court is of the
view that the matter requires re-consideration by the court
below.
59. The learned Special Prosecutor of the NCB has
pointed out that the respondent in Crl.M.C.No.6222 of 2015
has antecedents of similar nature, and the said objection
was raised before the court below. From the order impugned
in Crl.M.C.No.6222 of 2015, it is discernible that such a
specific objection was raised by the prosecution while
opposing the application for bail. It seems that the court
below has not considered and discussed anything about
that aspect. The court below has not entered any finding or
observation with regard to the 2nd limb of Section 37(1)(b)(ii)
of the NDPS Act. Therefore, this Court is of the view that the
said matter also requires re-consideration by the court
below.
60. This Court may not be understood to mean that
bail cannot be granted to the respondents in
Crl.M.C.No.4917 of 2015 and Crl.M.C.No.6222 of 2015. At
the same time, the courts below have to pass speaking
orders by considering the grounds enumerated under
Section 37(1)(b)(ii) of the NDPS Act, for which the impugned
orders in Crl.M.C.No.4917 of 2015 and Crl.M.C.No.6222 of
2015 have to be set aside and the said matters have to be
remitted to the court below.
In the result,
(1) Crl.M.C.No.5210 of 2015 stands
dismissed.
(2) Crl.M.C.No.5095 of 2015 stands allowed.
Annexure-A5 common order impugned in
Crl.M.C.No.5095 of 2015 is quashed.
(3) Crl.M.C.No.4917 of 2015 and
Crl.M.C.No.6222 of 2015 are allowed.
Annexure-A3 order in Crl.M.C.No.4917 of 2015
and Annexure-A1 order in Crl.M.C.No.6222 of
2015 are set aside. Crl.M.P.No.1625 of 2015 in
SC No.337 of 2015 and Crl.M.P.No.1709 of
2015 in SC No.357 of 2015 are remitted to the
courts below for passing speaking orders as
aforesaid, as expeditiously as possible. The
parties shall appear before the court below on
30.11.2015.
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