While canceling the bail the Court must always remain mindful and careful and should exercise these powers very sparingly in most deserving and appropriate cases only so that the Court which has exercised the power to enlarge the accused on bail should not exercise this power in a liberal and routine manner. The legislature while incorporating the provisions for cancellation of bail was aware that there may be cases in which the accused enlarged on bail may misuse his position after being enlarged on bail, in order to take care of that situation provisions have been incorporated in the Criminal Procedure Code for cancellation of bail, so that the accused should always remain under control and always remain careful that if he will breach any of the conditions of bail imposed upon him while granting bail his bail can be cancelled and he will be put in custody again. At the same time a heavy duty has been cast on the Court that 158 Bakshi Sardari Lal v. Superintendent, Tehar Central Jail, Delhi, 1968 Cri LJ 675 at p.
while deciding the cases of cancellation of bail the Court should satisfy its judicial conscience and in order to satisfy the judicial conscience the Court must see whether convincing grounds exits for the cancellation of bail, if these grounds exists only then and then the Court should exercise this power vested in it. The Court should also bear in mind that after releasing the accused on bail, the complainant party will keep some sort of grudge against the accused who has been released on bail. Moreover the Court must always remain very careful while exercising these powers in the cases which relate to the offences against the human body which are contained of the Indian Penal Code. IN such cases the trial Court should also remain more careful and take care that if any fact is brought to the notice of the trial Court that the witnesses are being pressurized and threatened to turn hostile to the prosecution story, if it is possible the Court on priority basis should record the statements of the witnesses in order to remove any doubt and resolve the controversy.159
Ordinarily, the discretion of the lower Court in granting or refusing bail would not be interfered. But, if the order suffers from irrelevant considerations, which are not supported with any material on record, there should not be any hesitation to interfere with such orders in order to meet the ends of justice.160 5.34 Cancellation of Bail to be with Care and Circumspection
The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection in appropriate cases, when by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. The Court has to strike a balance between two necessities, namely, necessity of not allowing the course of justice to be deflected and that of allowing liberty to the accused until he is found guilty.161
Cancellation of an order of bail could be a matter to be dealt with by the Court under S. 437(5) Cr. P.C. which has released the accused on bail or by the 159 Surnendra Kumar Patel v. State of Chhattisgarh, 2004 Cri LJ 988 at p. 991 (Chhattis). 160 Madurai Ganesan v. State of T.N., 2004 Cri LJ 2736 at p. 2739 (Mad).
Court of Session or the High Court by virtue of their powers under Section 439, Cr. P.C.; but that could not be done as and when the Courts are approached with such a prayer. 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 to him and is not lightly to be resorted to. For canceling the bail of an accused there must be grounds shown to the Court and to only shown, the Court has to be satisfied about them that they existed on the basis of materials acceptable to it.162
The power to take into custody an accused who has been enlarged on bail has to be exercised with care and circumspection. The power is of extraordinary nature and is meant to be exercised in appropriate cases when with preponderance of probabilities it is clear that the accused has misused the liberty, or compelling reason exist or grant of bail was illegal and / or was by improper, arbitrary exercise of discretion. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made. When it would be no longer conducive to a fair trial to allow the accused to retain his freedom of enjoying bail, cancellation is called for.163
Section 437(5) and 439(2) of the Code of Criminal Procedure, 1973 deal with powers of the Court to cancel bail. Unrestricted power is conferred on the High Court and the Court of Session in the mater of cancellation of bail which, no doubt, is to be exercised with due care and circumspection. Bail granted illegally and / or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under S. 439(2) of the Code, even if there is no additional circumstance against an accused appearing in record after granting of bail.164
It is not in routine that bail already allowed is cancelled. Bail once granted can be cancelled only on very cogent grounds.165
162 Dinesh Parwat v. State of Bihar, 2007 Cri LJ 2890 at p. 2896 (Pat). 163 State of Orissa v. Jagannath Patel, 1992 Cri LJ 1818 at p. 1819 (Ori).
164 State of Orissa v. Bansidhar Pradhan, (1986)62 Cut LT 699 (Ori) : (1986)2 Orissa LR
520.