Is the High Court Right in Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

(By V. Ramkumar, Former Judge, High Court of Kerala)

In my humble opinion, it is without properly appreciating the distinguishing mechanics behind the processes of “setting aside a bail order,” “forfeiture of bail bond resulting in cancellation of bail bond" and “cancellation of bail", that the High Court of Kerala once again fell into an error in Intelligence Officer, Narcotics Control Bureau v. Lijo K. Jose (2015 (4) KLT 981). (“NCB case" for short ). In paragraph 18 of the NCB case, this is what has been asserted:-

“18. This Court had an occasion to consider the aspect as to whether the provisions contained under S.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 S.437(5) Cr.P.C. and the power granted to the Sessions Court as well as the High Court under S.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.” (emphasis supplied)

The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman v. State of Kerala
(2015 (4) KLT 310) wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.

2. The Apex Court has unhesitatingly understood the above sections as the appropriate provisions for cancellation of bail, at least in 41 reported cases. Even the extracts from the Supreme Court relied on by the learned Judge in NCB case unmistakably state that the above provisions are meant for cancellation of bail. It is pertinent to note that the aforementioned view of the learned Judge in James George (supra) was refused to be followed by another learned Judge of the High Court in Mahesh K. alias Battampura Mahesh v. Station House Officer, Kasargode Police Station & Anr. (2016 (1) KLT 325) in the light of the decision of a Division Bench ruling of the High Court in Latheef @ Abdul Latheef v. State of Kerala(2011 (2) KLT 231) wherein it was pointedly held that Section 437(5) Cr.P.C. is the source of power for the Magistrate to cancel the bail granted by the Magistrate under Section 437(1) and (2) Cr.P.C.

3. In the NCB case, the High Court was mainly considering the question whether the Sessions Judge who had granted bail to certain accused persons for offences, inter alia, involving commercial quantity of narcotic drugs under the N.D.P.S. Act, 1985 allegedly without giving the Public Prosecutor an opportunity of being heard, could itself entertain petitions for cancellation of bail. In my view the learned Judge has rightly concluded that the High Court (superior court) alone could entertain a petition for setting aside the bail order and that approaching the very same court with applications for cancellation of bail, was misconceived. But what is objectionable is certain observations made which are capable of creating confusion in the minds of officers of the subordinate Judiciary.

4. Before proceeding further, it may be profitable to notice the distinction between the following:-

i)    an order granting bail or refusing (or rejecting) bail;

ii)   an application for setting aside an order grating bail.

iii)  forfeiture of bail bond and resultant cancellation of bond;

iv)  application for cancellation of bail.

Order granting or refusing (rejecting) bail

5. Depending on the gravity of the offence, stringent provisions, if any, in the special law governing the case, the nature, potential and antecedents of the offender, the duration of custody, if any, and such other relevant factors the Court may or may not grant bail to an accused person either during the stage of investigation, inquiry or trial of the case. This order is not appealable under the Cr.P.C. (Vide State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others (AIR 2003 SC 3224)and Narendra K. Amin (Dr.) v. State of Gujarat(2008) 13 SCC 584 (3 Judges). But in cases where bail is granted by the High Court, appeals are seen filed before the Supreme Court by the State Governments concerned. (Vide para 20 of Narendra K.Amins’ case (supra) and State of Kerala v. Raneef (2011 (1) KLT 242 (SC) =AIR 2011 SC 340). A revision against the grant of bail may also lie. (See Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No.68) =2010 Crl. L.J. 4137 (Ker.).

Application for Setting aside an Order Granting Bail

6. When bail has been granted by a Court in a case in which bail ought not to have been granted either due to a legal bar or due to non-compliance with a condition precedent such as mandatory hearing of the Public Prosecutor or by flouting a special provision in the penal statute concerned or due to the extreme gravity of the offence endangering public order or the security of the State, a superior Court, if moved, can set aside the order granting bail and it may virtually have the effect of cancelling the bail. But here, the superior Court is really setting aside and not cancelling the bail order due to reasons which already existed initially at the time of granting bail and not due to any post-bail event.

Forfeiture and the resultant cancellation of the bail bond

7. If the bond executed by an accused person is for appearance, then forfeiture of the bond takes place automatically in view of Forms 45 and 48 of the Second Schedule to Cr.P.C., when such person does not appear before Court on the specified day, unless of course, his absence for the day is excused by the Court under Section 317 Cr.P.C. The only legal consequence of such forfeiture, by virtue of Section 446 Cr.P.C., is the liability to pay penalty which such person (and his surety, if any) had undertaken to forfeit to the Government in the contract executed by them in Form No. 45 referred to above. In paragraphs 21 and 22 of the NCB case, the learned Judge has observed as follows:-

“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 S.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 S.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 grating 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 the 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.”

8. If we closely examine Section 446-A Cr.P.C. it will be clear that there is no warrant for the conclusion that forfeiture of a bond (for appearance) can result from the violation of a condition other than one for appearance. When as per the statutory scheme under the Cr.P.C., forfeiture of a bond (for appearance) takes place consequent on a breach of the condition for appearance, there is an automatic cancellation of the bond itself by virtue of Section 446-A Cr.P.C., disentitling the accused to be released only on his own bond unless the Police Officer or the Court decides to proceed under the proviso to Section 446-A Cr.P.C. by releasing him on fresh bail. But the wording in Section 446-A Cr.P.C. which reads :

“Where a bond under this Code is for appearance of a person in a case and it is forfeited for the breach of a condition” cannot be understood to mean that forfeiture of the bond for appearance can take place even for the breach of any condition other than one for appearance. By virtue of Form Nos. 45 and 48 (unless suitably modified by the High Court under Article 227 of the Constitution of India and Section 477 Cr.P.C.) which are the Forms to be used for this purpose in view of Section 476 Cr.P.C., forfeiture of a bond (for appearance) is contemplated only in cases of non-appearance of the accused and in no other contingency. Form No. 3 prescribed by the High Court under Appendix I to the Criminal Rules of Practice, Kerala, 1982 is also on similar lines as Form No. 48 referred to above. Hence no other mode of forfeiture is contemplated by the Cr.P.C. If so, the question of any injustice in asking the sureties to pay the penalty consequent on the accused committing breach of a condition other than one for appearance, does not arise. The learned Judge is not quite right in observing that when a bond for appearance is forfeited for breach of a condition, the powers under Section 446-A (a) and (b) can be invoked. There is no question of the Court invoking either clause (a) or clause (b) of Section 446-A of Cr.P.C. Under clause (a) the cancellation of the bond consequent on the forfeiture, takes place automatically. Clause (b) is also not a provision for invocation by the Court. It is really an interdict not to release the person who had committed breach of the condition for appearance. It is the proviso thereto which the Court can invoke in an appropriate case.

9. There is a practice in some Courts to secure the presence of the accused through a warrant of arrest consequent on the forfeiture and resultant cancellation of the bail bond and thereafter enlarging the accused on fresh bond with sureties, without insisting on a fresh application and order for bail. Technically speaking , the said practice cannot be said to be illegal since the earlier order granting bail remains intact even after the bail bond stands cancelled. The situation will be analogous to one where the court orders release of the accused on bail, but he does not execute a bail bond, with the only difference that in such a case the accused is yet to be released.

Cancellation of Bail

10.             Cancellation of bail has to be distinguished from cancellation of a bond for appearance although the consequence of cancellation may be the same so far as the accused is concerned. Just as bail of a person in custody can be granted under Section 437 Cr.P.C. only on the existence of sufficient grounds, as detailed in paragraph 5 above, cancellation of bail already granted, can only be on grounds mainly attributable to the conduct of the accused at the post-bail stage, such as his misusing the liberty granted to him by attempting to tamper with the evidence or influencing or intimidating the witnesses, or indulging in grave crimes while on bail or placing himself beyond the reach of his sureties by going abroad without the permission of the Investigating Officer or Court or violating any of the bail conditions etc. In other words, the grounds for cancellation of bail should be referable to the conduct of the accused after he has been enlarged on bail. (Vide Nityanand Rai v. State of Bihar (2005) 4 SCC 178 = AIR 2005 SC 2239). When any of the above grounds are present, the Court may resort to the power under section 437(5) Cr.P.C. if it is the Magistrate or under Section 439(2) Cr.P.C. if it is the Court of Session or the High Court. The Court which granted bail can itself invoke the appropriate provision for cancelling the bail if an application in that behalf is filed or on its own motion. Just as a Magistrate can have recourse to Section 437(5) Cr.P.C. and cancel the bail granted by the Magistrate himself, a Sessions Judge or the High Court can similarly exercise the power under Section 439 (2) Cr.P.C.

11. Still another instance of cancellation of bail recognized by the Apex Court is where the facts of the case are such that no court would have granted bail, but the inferior Court has wrongly granted bail. If the order granting bail is perverse for the reason that irrelevant material of a substantial nature has been taken into account or relevant material has been omitted from consideration while grating bail, that will be a fit case in which a superior Court would be justified in cancelling the bail. (Vide Dinesh M.N. (SP) v. State of Gujarat (2008 (3) KLT Suppl.1397 (SC) =(2008) 5 SCC 66 (3 Judges); Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 584 – (3 Judges); Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No. 68) = 2010 Crl. LJ 4137 (Ker.). Eventhough the Apex Court has used the expression “cancellation of bail” in such contingencies, really the remedy is against the order grating bail and such order can be set aside (loosely called “cancelled”) only by a superior Court.

a\pjym-h-Imi tImS-Xn-IÄ F´n\v?

(H.lm-cnkv, AUzt¡ä v, Imbw-Ip-fw)

\n§Ä a\p-jy-\m-b-Xp-sImIv am{Xw hen-b-h-\m-Ip-¶nÃ

a\p-jy-Xz-ap-Å-h-\m-Ip-t¼m-gmWv hen-b-h-\m-Ip-¶Xv

                                  --almßm KmÔn

a\pjymhImi ewL-\-§-fp-ambn _Ô-s¸« tIkp-I-fn AXn-thK hnNm-cW Dd-¸p-h-cp-¯m-\mbn FÃm PnÃ-I-fnepw a\p-jym-h-Imi tImS-Xn-IÄ Øm]n-¡-W-sa¶v kp{]ow-tIm-SXn D¯-c-hn-«n-cp-¶p. tImSXn Øm]n-¡p-¶-Xn\v tI{µ-kÀ¡mcpw kwkvYm-\-§fpw ap³ssI-s¿-Sp-¡-W-sa¶v tImSXn Ah-iy-s¸-«p. XS-hp-Im-cpsS a\p-jym-h-Imiw kwc-£n-¡m³ cmPys¯ FÃm Pbn-ep-I-fnepw kn.-kn.-Sn.hn Iyma-d-IÄ Øm]n-¡m³ kp{]ow-tIm-SXn asämcp D¯-c-hneqsS kÀ¡m-cnt\mSv \nÀt±-in-¨n-«p-Iv. kwØm-\-§-fnse t]meokv tÌj-\p-I-fnepw tem¡-¸p-I-fnepw \nco-£W Iymad Øm]n-¡p¶ Imcyw kwØm\ kÀ¡mÀ ]cn-K-Wn-¡-W-sa¶pw tImSXn \nÀt±-in¨p. ]c-am-h[n cIp-hÀj-¯n-\p-Å-n Pbnep-I-fn kn.-kn.-Sn.hn Iyma-d-IÄ Øm]n-¡p¶ \S-]SnIÄ ]qÀ¯n-bm-¡-Ww. Hmtcm t]meokv tÌj-\nepw Npcp-§n-bXv cIv h\nXm tIm¬Ì-_nÄamsc F¦nepw \nb-an-¡-Ww. FÃm tI{µ-`-cW {]tZ-i-§-fnepw Nne kwØm-\-§-fnepw CXp-hsc a\p-jym-h-Imi I½o-j³ cq]o-I-cn-¡m-¯-Xn tImSXn BÝcyw tcJ-s¸-Sp-¯n. kwØm-\-§-fnse a\p-jym-h-Imi I½o-j-\nse Hgn-hp-IÄ \nI-¯-W-sa¶v Bh-iy-s¸«v kp{]ow-tIm-S-Xn-bn kaÀ¸n¨ s]mXp-Xm-ev]-cy-lÀPn ]cn-KWn-¡sh PÌnkv Sn .Fkv. Tm¡qÀ, PÌnkv BÀ.-`m-\p-aXn F¶n-h-c-S-§nb _©mWv D¯-c-hn-«-Xv.

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kaq-l-¯n kzm[o-\hpw k¼-¯n-Ãm-¯-hÀ¡pw F-Xnsc cmPyamk-Iew `-W-Iq-S-¯nsâ ]n´p-W-tbmsS A[n-Imcn hÀ¤w \-S-¯p¶ It¿-ä-§fpw IS-¶m-{I-a-W-§fpw {Iam-Xo-X-ambn hÀ²n-¨-t¸m-gmWv 1993  \½psS ]mÀe-saâv a\p-jym-h-Imi kwc-£W \nbaw ]mkm-¡n-b-Xv. \nb-a-¯nse hnhn[ hIp-¸p-IÄ {]Imcw tZiob a\p-jym-h-Imi I½o-j\pw kwØm\ a\p-jym-h-Imi I½o-j\pw Nne kwØm-\-§-fnse¦nepw cq]o-I-cn-s¨-¦nepw \mfn-Xp-hsc cmPy¯v Hcn-S¯v t]mepw a\p-jym-h-Imi tImS-XnIÄ Øm]n-¨n-«n-Ã.

a\p-jym-h-Imi \nbaw 30þmw hIp¸v {]Imcw a\p-jym-h-Im-i-ew-L\ tIkp-I-fn AXn-thK XoÀ¸v I¸n-¡p-¶-Xn-te¡v Hmtcm Pnápw Hcp sk£³kv tImS-Xnsb a\p-jym-h-Imi tImS-Xn-bmbn hnÚm-]\w sN¿p-sa¶pw AX-sÃ-¦n PnÃ-bn Hmtcm {]tXyI a\p-jym-h-Imi tImSXn Øm]n-¡W-sa¶pw AXn-te¡v ]»nIv t{]mkn-Iyq-«-sdtbm kvs]jy t{]mkn-Iyq-«-sdtbm \nb-an-¡m-sa¶v hyh-Ø-bp-sI-¦nepw CXp-hsc AXp-Im-bn-«n-Ã. sslt¡m-SXn No^v PÌn-knsâ k½-X-t¯msS kwØm\ kÀ¡mÀ CXn\v thI\S-]-Sn-IÄ kzoI-cn-¡m-¯-XmWv Imc-Ww. kÀ¡mÀ hnÚm]\-¯n-eqsS ]cn-l-cn-¡m-hp-¶-Xm-Wv CXv.

FÃm-a-\p-jycpw kzmX-{´-cmbn P\n-¡p-I-bpw- ]-Z-hn-bnepw Ah-Im-i-§-fnepw XpeyX ]peÀ¯p-Ibpw sN¿p-¶p. AhÀ _p²nbpw a\-Êm£nbpw sImIv A\p-{K-lo-Xcpw ]c-kv]cw ktlm-Zcyw ]peÀ¯m³ \nÀ_-Ôn-X-cp-am-sW¶v BtKmf a\p-jym-h-Imi {]Jym-]-\-¯n Du¶n-¸-d-bp-¶p. PmXn, aXw, hÀ®w, enwKw, {]tZ-iw, `mj, kwkvImcw F¶o hyXym-k-§Ä¡-Xo-X-ambn hyàn-Isf a\p-jy-cmbn IIv Aw-Ko-I-cn-¡p-¶-Xn-s\-bmWv a\p-jym-h-Imiw F¶v ]d-bp-¶-Xv. `£WamWv ASn-Øm\ a\p-jym-h-Imisa¶v KmÔnPn ]d-ªp. kz´w PohnXw F¶-t]mse A\y-Po-hn-X-§-sfbpw kwc-£n-¡m¯ HcmÄ¡pw a\p-jym-h-Imiw kwc-£n-¡m-\m-hn-Ã. ka-Xzw, kzmX-{´yw, \oXn, kam-[m\w F¶o- aq-ey-§-fpsS {]Nm-cWamWv a-\p-jym-h-Imi {]Jym-]-\-¯nsâ {][m-\- e-£yw.

FÃm ap-jyÀ¡pw kaq-l-¯n am\y-ambn Pohn-¡m-\pÅ Ah-k-chpw Xpey-\o-Xn-bp-d-¸p-amWva\p-jym-h-Imi \nbaw {]mY-an-I-ambn hn`m-h\w sN¿p-¶-Xv. FÃm a\p-jyÀ¡pw -_m-[-I-amb coXn-bn \oXn \S-¸m-¡p-¶-hn-[-¯n-ep-Å-Xm-bn-cn-¡Ww a\p-jym-h-Imi \nb-a-§Ä. ]Àiz-h¡-cn-¡-s¸-Sp-Ibpw ]oUn-¸n-¡-s¸-Sp-Ibpw sN¿p¶ ZpÀ_e P\-hn-`m-K-§Ä¡v AÀl-X-s¸« \oXn \S-¸m-¡p-hm³ a\p-jym-h-Im-i-\n-baw A\p-im-kn-¡p-¶p. ]oUn-¸n-¡-en\pw {Iqc-Xbv¡pw
a\p-jy-Xz-c-ln-Xhpw A´-ÊvsI-«-Xp-amb s]cp-am-ä-¯n-\p-sa-Xnsc kwc-£Ww Dd-¸m-¡n-s¡m-IpÅ a\p-jym-hImi DS-¼-Sn-bnse hyhØ \½psS `c-W-L-S-\bnse 21þmw A\-tÑZw AwKo-I-cn-¡p-¶p. `qan-im-kv{X-]-c-amb FÃm AXn-cp-IÄ¡p-a-¸p-d-amWv a\p-jym-h-Im-iw. a\p-jym-h-Im-i-§-fpsS \oI]«nI \½psS `c-W-L-S-\-bn-ep-sI-¦nepw Ah kwc-£n-¡p-¶-Xn\v `-c-W-IqSw apt¶m«v hcp-¶n-Ã. FÃm taJ-e-bnepw ISp¯ a\p-jym-h-Im-i- ew-L-\-§-fmWv ImWm³ Ign-bp-¶Xv.

F{X ià-amb \nb-a-am-sW-¦nepw \nb-a-\nÀÆ-l-W-¯nse t]mcm-bva-Ifpw DZm-ko-\-X-bp-amWv a\p-jym-h-Imi ewL-\-§Ä¡v {][m\ Imc-W-§Ä. hn]Wn kwkvIm-chpw A[oim-[n-Imc Nq-j-Whpw Agn-a-Xnbpw a\p-jym-h-Im-i-ew-L-\-§Ä¡v {]tNm-Z-\-am-Im-dp-Iv.

a\p-jyÀ¡v thIn X¿m-dm-¡nb \nb-a-§-sf-¸än Adn-bm-Xn-cn-¡-pIbpw, Ah {]Ncn-¸n-¡m-Xn-cn-¡p-Ibpw sN¿p-¶Xv asäm-cp-Xcw \nb-a-ew-L-\-¯n-\pÅ Ah-k-c-wkrjvSn-¡p-I-bm-Wv. \nb-a-mht_m-[-apÅ kaqlw cq]-s¸-Sp-Ibpw ]ucm-h-Im-i-§Ä¡v thIn ià-amb \ne-]m-Sp-IÄ t\cmb amÀ-¤¯n ssIs¡m-Åp-Ibpw sNbvXm am{Xta a\p-jym-h-Imi e£y-§Ä¡v Adp-Xn-h-cp-I-bp-Åq. a\p-jym-h-Imi tImS-XnIÄ Cu hgn-¡p-ff Nph-Sv sh¸m-I-s«.

Is the High Court Right in  Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

(By V. Ramkumar, Former  Judge,  High  Court  of  Kerala)

In my humble opinion, it is without properly appreciating the distinguishing mechanics behind the processes of “setting aside a bail order,” “forfeiture of bail bond resulting in cancellation of bail bond" and “cancellation of bail", that the High Court of Kerala once again fell into an error in Intelligence Officer, Narcotics Control Bureau v. Lijo K. Jose (2015 (4) KLT 981). (“NCB case" for short ). In paragraph 18 of the NCB case, this is what has been asserted:-

“18. This Court had an occasion to consider the aspect as to whether the provisions contained under S.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 S.437(5) Cr.P.C. and the power granted to the Sessions Court as well as the High Court under S.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.”                                   (emphasis supplied)

The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman v. State of Kerala (2015 (4) KLT 310) wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.

2. The Apex Court has unhesitatingly understood the above sections as the appropriate provisions for cancellation of bail, at least in 41 reported cases. Even the extracts from the Supreme Court relied on by the learned Judge in NCB case unmistakably state that the above provisions are meant for cancellation of bail. It is pertinent to note that the aforementioned view of the learned Judge in James George (supra) was refused to be followed by another learned Judge of the High Court in Mahesh K. alias Battampura Mahesh v. Station House Officer, Kasargode Police Station & Anr. (2016 (1) KLT 325) in the light of the decision of a Division Bench ruling of the High Court in Latheef @ Abdul Latheef v. State of Kerala(2011 (2) KLT 231) wherein it was pointedly held that Section 437(5) Cr.P.C. is the source of power for the Magistrate to cancel the bail granted by the Magistrate under Section 437(1) and (2) Cr.P.C.

3. In the NCB case, the High Court was mainly considering the question whether the Sessions Judge who had granted bail to certain accused persons for offences, inter alia, involving commercial quantity of narcotic drugs under the N.D.P.S. Act, 1985 allegedly without giving the Public Prosecutor an opportunity of being heard, could itself entertain petitions for cancellation of bail. In my view the learned Judge has rightly concluded that the High Court (superior court) alone could entertain a petition for setting aside the bail order and that approaching the very same court with applications for cancellation of bail, was misconceived. But what is objectionable is certain observations made which are capable of creating confusion in the minds of officers of the subordinate Judiciary.

4. Before proceeding further, it may be profitable to notice the distinction between the following:-

i)    an order granting bail or refusing (or rejecting) bail;

ii)   an application for setting aside an order grating bail.

iii)  forfeiture of bail bond and resultant cancellation of bond;

iv)  application for cancellation of bail.

Order granting or refusing (rejecting) bail

5.  Depending on the gravity of the offence, stringent provisions, if any, in the special law governing the case, the nature, potential and antecedents of the offender, the duration of custody, if any, and such other relevant factors the Court may or may not grant bail to an accused person either during the stage of investigation, inquiry or trial of the case. This order is not appealable under the Cr.P.C. (Vide State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others (AIR 2003 SC 3224)and Narendra K. Amin (Dr.) v. State of Gujarat(2008) 13 SCC 584 (3 Judges). But in cases where bail is granted by the High Court, appeals are seen filed before the Supreme Court by the State Governments concerned. (Vide para 20 of Narendra K.Amins’ case (supra) and State of Kerala v. Raneef (2011 (1) KLT 242 (SC) =AIR 2011 SC 340). A revision against the grant of bail may also lie. (See Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No.68) =2010 Crl. L.J. 4137 (Ker.).

Application  for  Setting  aside  an  Order  Granting  Bail

6. When bail has been granted by a Court in a case in which bail ought not to have been granted either due to a legal bar or due to non-compliance with a condition precedent such as mandatory hearing of the Public Prosecutor or by flouting a special provision in the penal statute concerned or due to the extreme gravity of the offence endangering public order or the security of the State, a superior Court, if moved, can set aside the order granting bail and it may virtually have the effect of cancelling the bail. But here, the superior Court is really setting aside and not cancelling the bail order due to reasons which already existed initially at the time of granting bail and not due to any post-bail event.

Forfeiture  and  the  resultant  cancellation  of  the  bail  bond

7. If the bond executed by an accused person is for appearance, then forfeiture of the bond takes place automatically in view of Forms 45 and 48 of the Second Schedule to Cr.P.C., when such person does not appear before Court on the specified day, unless of course, his absence for the day is excused by the Court under Section 317 Cr.P.C. The only legal consequence of such forfeiture, by virtue of Section 446 Cr.P.C., is the liability to pay penalty which such person (and his surety, if any) had undertaken to forfeit to the Government in the contract executed by them in Form No. 45 referred to above. In paragraphs 21 and 22 of the NCB case, the learned Judge has observed as follows:-

“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 S.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 S.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 grating 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 the 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.”

8. If we closely examine Section 446-A Cr.P.C. it will be clear that there is no warrant for the conclusion that forfeiture of a bond (for appearance) can result from the violation of a condition other than one for appearance. When as per the statutory scheme under the Cr.P.C., forfeiture of a bond (for appearance) takes place consequent on a breach of the condition for appearance, there is an automatic cancellation of the bond itself by virtue of Section 446-A Cr.P.C., disentitling the accused to be released only on his own bond unless the Police Officer or the Court decides to proceed under the proviso to Section 446-A Cr.P.C. by releasing him on fresh bail. But the wording in Section 446-A Cr.P.C. which reads :

“Where a bond under this Code is for appearance of a person in a case and it is forfeited for the breach of a condition”  cannot be understood to mean that forfeiture of the bond for appearance can take place even for the breach of any condition other than one for appearance. By virtue of Form Nos. 45 and 48 (unless suitably modified by the High Court under Article 227 of the Constitution of India and Section 477 Cr.P.C.) which are the Forms to be used for this purpose in view of Section 476 Cr.P.C., forfeiture of a bond (for appearance) is contemplated only in cases of non-appearance of the accused and in no other contingency. Form No. 3 prescribed by the High Court under Appendix I to the Criminal Rules of Practice, Kerala, 1982 is also on similar lines as Form No. 48 referred to above. Hence no other mode of forfeiture is contemplated by the Cr.P.C. If so, the question of any injustice in asking the sureties to pay the penalty consequent on the accused committing breach of a condition other than one for appearance, does not arise. The learned Judge is not quite right in observing that when a bond for appearance is forfeited for breach of a condition, the powers under Section 446-A (a) and (b) can be invoked. There is no question of the Court invoking either clause (a) or clause (b) of Section 446-A of Cr.P.C. Under clause (a) the cancellation of the bond consequent on the forfeiture, takes place automatically. Clause (b) is also not a provision for invocation by the Court. It is really an interdict not to release the person who had committed breach of the condition for appearance. It is the proviso thereto which the Court can invoke in an appropriate case.

9. There is a practice in some Courts to secure the presence of the accused through a warrant of arrest consequent on the forfeiture and resultant cancellation of the bail bond and thereafter enlarging the accused on fresh bond with sureties, without insisting on a fresh application and order for bail. Technically speaking , the said practice cannot be said to be illegal since the earlier order granting bail remains intact even after the bail bond stands cancelled. The situation will be analogous to one where the court orders release of the accused on bail, but he does not execute a bail bond, with the only difference that in such a case the accused is yet to be released.

Cancellation  of  Bail

10. Cancellation of bail has to be distinguished from cancellation of a bond for appearance although the consequence of cancellation may be the same so far as the accused is concerned. Just as bail of a person in custody can be granted under Section 437 Cr.P.C. only on the existence of sufficient grounds, as detailed in paragraph 5 above, cancellation of bail already granted, can only be on grounds mainly attributable to the conduct of the accused at the post-bail stage, such as his misusing the liberty granted to him by attempting to tamper with the evidence or influencing or intimidating the witnesses, or indulging in grave crimes while on bail or placing himself beyond the reach of his sureties by going abroad without the permission of the Investigating Officer or Court or violating any of the bail conditions etc. In other words, the grounds for cancellation of bail should be referable to the conduct of the accused after he has been enlarged on bail. (Vide Nityanand Rai v. State of Bihar (2005) 4 SCC 178 = AIR 2005 SC 2239). When any of the above grounds are present, the Court may resort to the power under section 437(5) Cr.P.C. if it is the Magistrate or under Section 439(2) Cr.P.C. if it is the Court of Session or the High Court. The Court which granted bail can itself invoke the appropriate provision for cancelling the bail if an application in that behalf is filed or on its own motion. Just as a Magistrate can have recourse to Section 437(5) Cr.P.C. and cancel the bail granted by the Magistrate himself, a Sessions Judge or the High Court can similarly exercise the power under Section 439 (2) Cr.P.C.

11.  Still another instance of cancellation of bail recognized by the Apex Court is where the facts of the case are such that no court would have granted bail, but the inferior Court has wrongly granted bail. If the order granting bail is perverse for the reason that irrelevant material of a substantial nature has been taken into account or relevant material has been omitted from consideration while grating bail, that will be a fit case in which a superior Court would be justified in cancelling the bail. (Vide Dinesh M.N. (SP) v. State of Gujarat (2008 (3) KLT Suppl.1397 (SC) =(2008) 5 SCC 66  (3 Judges); Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 584 – (3 Judges); Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No. 68) = 2010 Crl. LJ 4137 (Ker.). Eventhough the Apex Court has used the expression “cancellation of bail” in such contingencies, really the remedy is against the order grating bail and such order can be set aside (loosely called “cancelled”) only by a superior Court.

Revisiting Preamble

(By Kaleeswaram Raj, Advocate, Supreme Court of India and Kerala High Court)

It is an irony that much debate was required for the Government to say that the Constitution is our holy book. The treacherous remarks on secularism and socialism by the Home Minister created initial obfuscation that had to be erased by the Prime Minister’s assurance to stick on to the constitutional values. The Government ultimately acknowledged the distinction between conventional democracy and constitutional democracy, thereby hinting that the latter is not merely a device for majoritarian regime.

The fascination for the original Preamble does not seem to be a feeling expressed in the best interest of the nation. A textual revisit to the Constituent Assembly debates and an empirical evaluation of the country’s journey after independence would support this postulate.

 Chief Justice Marshall visualised the Constitution as a socio political document “framed for ages to come” and “designed to approach immortality as near as human institutions can approach”. In the Indian context, Justice R.C.Lahoti described the Preamble as the “quintessence of the Constitution”. The Constituent Assembly extensively debated on each and every word in the preface to the fundamental law. Dr.Ambedkar, apprehensive of future contradictions between constitutional dreams and social realities, however, advocated for institutional reforms. An optimist Nehru who pleaded for fundamental rights, Sardar Patel who was skeptic about them, Rajagopalachari, whose inclination was more towards a Gandhian Swaraj, and K.M.Munshi who was eloquent on individual liberty were all dynamic in the debates, which in all respects were ‘national’.

The Preamble was amended in 1976. The amendment came into force on 3.1.1977. The 42nd amendment was preceded by debates within and outside the Parliament.

The proponents of ‘original Preamble’ have however, put forward the following postulates:-

(1) Even without these words in the Preamble, we are a secular country.

(2) There is nothing wrong in using the ‘original Preamble’ for official purpose.

(3) The founding fathers of the Constitution did not include the words ‘socialist and secular’ and therefore the present day congress leaders could not have desired for something which even Pandit Nehru did not want.

The third postulate is vulnerable to historical scrutiny. While moving the motion for amendment, the then Minister of Law H.R.Gokhale, opened the discussion by referring to Pandit Nehru’s speech on 22.1.1947:–

“The first task of this assembly is to free India through a new Constitution, to feed the starving people, to clothe the naked masses and to give every Indian the fullest opportunity to develop himself according to his capacity” (Loksabha Debates Vol.65 P.75).

Gokhale then indicated that the Preamble “being the key to the whole Constitution” should more accurately and correctly reflect the ‘objectives’ of socialism and secularism. (Ibid).

Therefore it is erroneous to delink Nehruvian concept of socialism and secularism from the ‘politics of amendment’. The conflict was rather between the Nehruvian approach on the one hand and the leftist perception on the other. During the discussions, the veteran communist leader Indrajit Gupta reacted by saying that mere inclusion of the words would not alter the socio-economic structure of the country. Gupta even referred to National Socialist Party in Germany led by Adolf Hitler to argue that there is nothing so significant in the description. He pleaded for strengthening the directive principles with a socialist edge, rather than making ‘cosmetic’ changes in the Preamble.

The other postulates also are equally fragile. Even the Constituent Assembly debates show a conceptually flawed move to assimilate socialist traits in the Preamble. Maulana Hasrat Mohani who pleaded for incorporating federalism in Preamble, also wanted to name the country as "Union of India Socialist Republics” (U.I.S.R.) resembling U.S.S.R. This was unacceptable to the majority, for the very political structure of U.S.S.R. was dissimilar to the Indian Constitutional policy. However, the fact remains that the proposals and deliberations as occurred in 1976 were absent during the making of the Constitution. Nor there was a historical context as it occurred in 1976 to call for an amendment. Therefore, such comparisons would be out of place.

 Socialist jurisprudence

The finest part of the 42nd amendment is that it motivated the Supreme Court not only to endorse the amendment but even to evolve a socialist jurisprudence. A ‘Krishna Iyer School’ in the Supreme Court found its ideological legitimacy in the amended Preamble. In Excel Wear (1978) the Supreme Court relied on the socialist component of the Preamble to endorse nationalisation process and State’s monopoly over resources. In Radhir Singh (1982) the doctrine of ‘equal pay for equal work’ was expounded on the same premises. In Nakara (1982) the Supreme Court could strike down the disparity in emoluments paid to the pensioners for it arbitrarily negated the socialist goal of the Constitution. Socialist approach, according to the court, should involve a strategy for decent standard of life. The Supreme Court even explained the concept of socialism as a “blend of Marxism and Gandhism” which could be proximate to Gandhian Socialism. The decision in Dharwad Employees (1990) asserted the right for pay parity for casual workers and that in Samatha (1997) with a striking title took a formidable posture against inequalities, in the context of tribal rights.

An aversion to the amendment expressed by a few elected leaders therefore clearly indicates their ideological plank which again should be subjected to public scrutiny. While projecting the original Preamble, they practically ignore the authoritative pronouncements of the Supreme Court on the socialist characteristics of the constitutional text.

Secularism

The President’s power under Article 356 of the Constitution for dismissing State Governments and dissolving State Legislatures was the matter in issue in Bommai (1994) The court held that secularism, like federalism, is a basic feature of the constitution. In States like Madhya Pradesh, Himachal Pradesh and Rajasthan, the reports by the respective Governors sufficiently indicated that State Governments and even the ministers were in hand in glove with the communal forces. The executive abetment of communal activities led to a real break down in governance in the States.

It was in Bommai that the Supreme Court inter alia examined the secularist Preamble along with the other parts of the Constitution including Articles 25 to 30, which deal with religious freedom. The Court held:-

Under the Constitution no party or organization can simultaneously be a political and religious party. It has to be either. Same would be the position, if a party organization acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. We do not know how the Constitution can be amended so as to remove secularism from the basic structure of the Constitution. Nor do we know how the present Constitution can be replaced by another; it is enough for us to know that the Constitution does not provide for such a course - that it does not provide for its own demise. (All India Reporter, 1994. Para 243).

This long passage from Bommai would also signify the importance of amendment. The plea that India would be secular even without that word in the Preamble is historically incorrect and even deceptive. The truth is that even with the word, the communal outfits could sabotage the constitutional scheme which ultimately led to interference by the court and protest from the electorate. Bommai contains a final declaration of law on the subject. It is no longer a legal text. On the other hand, it is the country’s experience. And as Justice Holmes put it, life of the law is not logic; it is experience. Though the 42nd amendment might have had a political agenda behind it, the present yearn for doing away with it is all the more perilous.

(The original text of the article is edited and abridged by the author). 

Is Capital Punishment, The Answer to Juvenile Crime?

(By Dr. Jayaprakash R., Additional Professor of Paediatrics, Child Psychiatrist, Behavioural Paediatrics Unit, SAT  Hospital, Government Medical College, Thiruvananthapuram)

Finally the Rajyasabha also amended the J.J. Act (2014) to trial the juveniles in the age group of 16-18 years like adults who committed major or heinous crimes. That means, they will be subjected to similar punishments also? This is in the wake of protest against the release of a juvenile offender who took part in the crime of raping a girl in December, 16, 2012 in Delhi. He was the one who tried to abuse the helpless girl most physically and sexually. Naturally the public opinion was that he committed severe crime as well as an adult crime, so he should be given more punishment than others in the gang. Public opinions of similar nature were raised in similar situations all over the world. But as a signatory to UNCRC (1989) India and majority of other countries kept away from this demand. Our JJ Act (Care and Protection, 2000) was in line with the concept that all those under 18 should be considered as children, those who commit crime should be called as ‘children in conflict with law’and be kept away from our routine legal and judicial process, but will be tried in Juvenile Courts and send to reformative institutions for a maximum period of 3 years. The concept or the principle behind this approach is, since they are children, they have not attained the appropriate developmental state to understand or recognize the heinous act, or its consequences. China (1997) and America
(2005) also moved forward in this direction and stopped the capital punishment for younger than 18 years. Recognition of the concept of juvenile delinquency and criminal responsibility among children and adolescents has got evolved over past three centuries.  But with current amendment we are moving backward from our previous scientific and developmentally appropriate stand.

The new amendment has to be withdrawn or our President should not give consent to ratify it. It should not be allowed to include in the law of land because of two reasons.

Firstly, the children and adolescents, up to age of 18, are still in the growing and developmental phase. The cognitive neuroscience and cognitive developmental psychology has developed and evolved over the last three decades and has come out with definite knowledge about adolescent brain development. Now it is confirmed that adolescent brain continues to develop and complete this process only by the end of 18 to 20 years. The main neurodevelopmental process is the continued myelinization and development of the areas specifically prefrontal lobe (concerned with executive function), temporal lobe  (concerned with intelligence) and amygdala (concerned with control of emotion and social cognition). The developmental maturation of pre frontal lobe is concerned with the control of one’s impulsive behaviour in anticipating the consequence of an act, i.e. thinking before the act considering the pros and cons of it …So with premature prefrontal lobe, among the adolescents irrespective of the gender, the desire for emotional intimacy (love affair etc.) and sex will be much higher than that of any adults. It is this same (impulsive) adolescent cognitive developmental psychology which works in both high school/higher secondary girls when they are being attracted by crooked love affair and offers by maiden ‘lovers’ who stand outside the school wall as well as the adolescent rapist. So one have to realize that the desire and resultant acts of an adolescent rapist will be more powerful and abusive than any adult experienced rapist. It is this (immature) developmental psychology which worked in Delhi or similar incidents.

Secondly, considering the developmental psychology of criminal behaviour, after 10 years of research on criminal behaviour among children and adolescents in Behavioural Paediatrics Unit, SAT Hospital, the risk factors for such child-adolescenthood criminal behaviours were families abandoned by father (single parent family), quarrelsome families, alcoholism, and domestic violence (2014). In many families these multiple risk factors were interacting with each other. So the poor ‘criminal children’ are the creation and scape goats of their bad family and psycho social environment. Now it is also known that these family and psycho social environments badly and reversely affect the brain development from early childhood itself. So one can easily recognize the developmental psychology of criminal behaviour among children and adolescents. Here we should not separate a juvenile crime per se from his or her family or psycho social environment, but have to see holistically. Taking the juvenile crime alone after ignoring the background is very unscientific. By this new amendment, we can start by giving more and more capital punishment to these poor impulsive adolescents. Will we hang these adolescents?Pathetic!

These two points were nowhere in discussion during the amendments either in the parliament,Rajyasabha or in the society. Experts of child and adolescent mental health were not consulted or opinion were not taken before this major and drastic amendments. Proper application of cognitive neuro-science and adolescent developmental psychology of criminal behaviour in legal proceeding and judicial process is the need of the hour.

Some  suggestions  are  good

The suggestions regarding the creations and functioning of child welfare committee and juvenile justice board are very good. Proper continuation of education, employment and rehabilitation back to life should be the basic principles when we consider the criminal behaviour of children and adolescents. Of course the ‘adolescent criminals’ like Delhi incidents will be dangerous, if we release them as such to the society. But it is the social and judicial responsibility to build up a proper education-rehabilitation system for the juvenile delinquents, but for that we have to go miles…It is cruel and improper for a developing society to move away from the responsibility of our system, but solving this major social issue by killing the juvenile culprits.