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What the Supreme Court held on cancellation of bail and challenge to grant of bail
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What the Supreme Court held on cancellation of bail and challenge to grant of bail

Shruti Mahajan

In its judgment today, the Supreme Court has reiterated that when it comes to bail, the considerations applicable for cancellation of bail and for challenging grant of bail are different.

While adjudicating an appeal filed against the decision of the Gujarat High Court, a Bench of Justices R Banumathi and AS Bopanna observed that the application in the instant case was filed challenging the grant of bail of the accused. However, the High Court had proceeded on the footing that the application filed was for cancellation of the bail.

Holding that the considerations for the two are different, the Supreme Court remitted the matter to the High Court for it to be considered in accordance with the law. The judgment reads:

“It is well settled that the consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on that count etc. Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was  improper or arbitrary exercise of discretion in grant of bail.”

The accused persons in this case, were charged under various provisions of the Indian Penal Code for causing hurt to the victims. They were granted bail by the trial court which also imposed certain conditions. The Additional Sessions Judge had observed that the victims were discharged from hospital, weapons involved in the crime recovered, and the presence of the young accused persons with no criminal antecedents could be secured. Thus, after imposing certain conditions, bail was granted.

When the same was challenged before the High Court, it refused to interfere with the order of bail. However, a point of breach of the condition of bail was raised before the High Court and on this question, the appellants were relegated to the Sessions Court.

Another application was filed by the appellant thereafter before the Registrar. The application contended that the charges against the accused are grave in nature and the very exercise of discretion in granting of bail was being challenged. The application prayed to circulate the “speaking to minutes” to the Judge in respect of the earlier order. This application was also dismissed.

When the matter came up before the Supreme Court, the appellant argued that even though the application was filed under Section 439(2) of the Code of Criminal Procedure which deals with cancellation of bail, the appellant had made a case to challenge the exercise of discretion for granting of bail. It was further submitted that the trial court “erroneously” exercised its discretion in granting bail and the challenge to this before the High Court was not taken note of.

The Court, in this regard, said,

“Though the application has been filed before the High Court under Section 439(2) Cr.P.C. i.e. an application for cancellation of bail, by perusal of the grounds raised in the application, it is seen that the appellant has raised grounds challenging the exercise of discretion in granting bail… In effect, the application filed was only challenging the order of grant of bail on the ground that it was an arbitrary exercise of discretion. The Court while granting bail should exercise its discretion in judicious manner by taking into consideration the relevant facts” 

Thus, observing the difference between the grounds to be considered while hearing applications challenging exercise of jurisdiction for grant of bail and applications praying for cancellation of bail, the Court set aside the order of the High Court while remitting the matter back to it for consideration.

The Appellants were represented by Advocate Abhishek Singh and the Respondents were represented by Senior Counsel Sushil Kumar Jain.

[Read Judgment]

Bharatbhai-Bharwad-vs-Gujarat.pdf
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