Thursday, 14 April 2016

Whether surety can be forfeited if accused commits another offence while on bail?

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.
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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