POWER OF THE JUDICIAL MAGISTRATE IN CANCELLING THE BAIL IN BAILABLE OFFENCE – AT A GLANCE

 

POWER OF THE JUDICIAL MAGISTRATE IN CANCELLING THE BAIL IN BAILABLE OFFENCE – AT A GLANCE

The power of the learned Judicial Magistrate in cancelling the bail in bailable offence as well whether the learned Judicial Magistrate has got suo motu power to cancel bail has been discussed here.

Bail - Meaning :-

As per Black’s Law Dictionary – 8th Edison – Bail means – a security such as cash or a bond; especially security required by a Court for the release of prisoner who must appear at a future time.

As per Oxford English Dictionary – Bail means, money that agrees to pay if a person accused of a crime does not appear in front of the Court on the day he /she is called. When bail has been arranged, the accused person can go free until that day.

Discussion :-

All offences are broadly categorized into two types; bailable offences and non-bailable offences. Section 2(a) Cr.P.C., defines, bailable and non-bailable offence.

Section 2 Cr.PC. Definitions – In this Code, unless the context otherwise requires (a) bailable offence means an offence which is shown as bailable in the first schedule, or which is made bailable by any other law for the time being in force and non-bailable offence means any other offence.

Sections 436, 437, 438 and 439 Cr.P.C., deals with the powers of Criminal Court to grant bail. There are two provisions dealing with cancellation of bail contemplated in the Code of Criminal Procedure, 1973.

(1) Section 437(5) and Section 439(2) Cr.P.C., - for better appreciation, the above provisions are extracted hereunder

(1) 437(5) Cr.P.C. – 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 437 Cr.P.C., speaks about when bail may be taken in case of non-bailable offence. Hence, as per the crystal clear language employed in Section 437 (5) Cr.P.C., the bail in non-bailable offence granted under proviso (1) and (2) of Section 437 Cr.P.C., can be cancelled. Though directly the word cancellation of bail has not been employed both in Section 437 (5) and in Section 439(2) Cr.P.C., the clear meaning of the above provisions is that the bail can be cancelled because as per the provisions, a direction can be given to arrest and commit him to custody. When a person is on bail, he cannot be arrested again for the same offence, he can be arrested only when the earlier order of bail has been cancelled. Hence, cancellation of bail is possible by exercising the power u/s. 437(5) and 439(2) Cr.P.C.

Section 439(2) Cr.P.C. – 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. The major difference between the above two provisions is that Section 437(5) Cr.P.C., relates to cancellation of bail in a bailable offence by the Court, which has granted bail. But wide power has been conferred on the Court of Session and the Hon’ble High Court by Section 439 (2) Cr.P.C., because any person who has been released on bail under this Chapter can be cancelled.

Hence, special power has been given to the Court of Sessions and the Hon’ble High Court to cancel bail granted under the Chapter XXXIII, it means bail in a bailable offence, non-bailable offence and anticipatory bail are all can be cancelled by the Court of Session and the Hon’ble High Court.

Since bail in a bailable offence, as per the plain language contained in Section 436(1) Cr.P.C., is a mandatory and the same cannot be refused, if accused is prepared to give bail. There is no discretion to the learned Judicial Magistrate in grating bail in a bailable offence.

[Vaman Narayan Ghiiye Vs. State]

[Rasiklal Vs. Kishore Khan Chand Wadhwani]

Right to seek bail in a bailable offence is a matter of right

[Chowrlappa Constructions, Bangalore and others Vs Embassy Constructions and Development Pvt Ltd, Bangalore]

The major difference between bailable offence and non-bailable offence is that bail is matter of right in a bailable offence and not vice-versa. Since, liberty of an individual is involved in cancellation of bail, the law makers have not conferred power to the learned Judicial Magistrate to cancel the bail in bailable offence. But, at the same time, the law maker so cautiously coined Section 439(2) Cr.P.C, which gives special power to the Court of Sessions and the Hon’ble High Court to cancel the bail granted under the Chapter governing bail. Hence, bail in bailable offence is also liable to be cancelled, but the power has been given to the higher judiciary.

1. 2009 Crl.L J 1311

2. 2009 Crl.LJ 1887

3. 2002(2) Crl.LJ 3863

bail in a bailable offence cannot be cancelled by the Judicial Magistrate

 [Rasiklal Vs. Kishore Khan Chand Wadhwani]

[Madhab Chandra Jena and another Vs. State]

[Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and another]

- If legislature had intended to confer such a power, it would have been very easy for it to add and appropriate sub-section u/s. 496. The omission to make such a provision is, according to Purushottam, not the result of inadvertence, but is deliberate or reasonable to the High Courts with the power to cancel bail in such a cases under Section 561-A.

[Sagayam @ Devasagayam Vs State – Para 26, 27 – The Magistrate has no power to cancel the bail order in bailable offence.

The law makers have given two provisions for cancellation of bail, but obviously has omitted to confer the power to the learned Judicial Magistrate regarding cancellation of bail in a bailable offence. The said omission is not a result of inadvertence or negligence, but it is a cautious omission. This omission is deliberate and reasonable. So only Section 439(2) Cr.PC has been employed and the power to cancel the bail granted under the Chapter bail has been conferred on the higher judiciary.

Regarding deliberate omission and to read the provisions, the following two judgments are useful.

[Union of India Vs. Rajiv Kumar]

[ Sangeetha Singh Vs. Union of India and others]

It is pertinent to point out here that the law maker deliberately omitted to give power to the learned Judicial Magistrate to cancel bail in a bailable offence. Hence, the learned Judicial Magistrate has no right to cancel the bail in a bailable offence.

The next point which comes for discussion automatically is that whether the Judicial Magistrate or Court of Session has got suo motu power to cancel bail.

It is crystal clear that except the Hon’ble High Court, the Subordinate Courts have no inherent power to take action suo motu. Hence, both the learned Judicial Magistrate or the Court of Session have no jurisdiction to act suo motu.

4. 2009 Crl.LJ 1887

5. 1988 Crl.L.J. 608

6. AIR 1958 SC 376

7. 2017(2) MWN (Cr.) 136

8. (2003) 6 SCC 516

9. (2005)7 SCC 484

10[Bindeswari Prasad Singh Vs. Kali Singh]

[Madhab Chandra Jena Vs State of Orissa] – held that – With great respect, we are not able to agree with the learned Judge. It is now too well settled that there is no inherent power available to be exercised by any subordinate criminal court and the power is exclusively available only to the High Court.

Conclusion :

In the light of the discussion made above it is crystal clear that

1) The learned Judicial Magistrate has no right to cancel bail in a bailable offence and

2) The subordinate Criminal courts have no inherent power.