Delhi High Court: Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,
Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.
An application was filed under Section 439(2) of Criminal Procedure Code, 1973 read with Section 482 CrPC for cancellation of the anticipatory bail granted to respondents 2 to 5 passed by the Patiala House Court for the offence under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 of the Penal Code, 1860.
Complainant had given a complaint against her husband, mother-in-law and brother-in-law for offences under Sections 354, 354A, 354B, 406, 498A, 506, 509, 34 IPC.
Apprehending arrest, respondents filed an application under Section 438 CrPC seeking a grant of anticipatory bail.
Additional Sessions Judge found that the grievance of the complainant, that the matter had not been investigated fairly or that the investigating agencies acted in connivance with the accused could be addressed by moving the Metropolitan Magistrate and it is for the Metropolitan Magistrate to order further investigation under Section 173(8) CrPC.
The above-said order had been assailed by the complainant.
Trial Court granted anticipatory bail to the accused after considering the statements of the accused. Status Report noted that the respondents had joined the investigation and were cooperative, both before and after being granted protection from arrest by the Trial Court.
Difference between: Rejection of application for Bail v. Cancellation of Bail
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Rejection of application for Bail |
Cancellation of Bail |
| An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the Court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused. |
In the case of cancellation, the Court is called upon to extinguish the liberty that has been formerly granted. |
When can a Court seize the liberty of an accused undertrial?
Stating that a Court must tread with the utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the Court, Bench explained when a Court can exercise its jurisdiction in seizing the liberty of an accused undertrial.
Supreme Court in the decisions of Delhi Admn. V. Sanjay Gandhi, (1978) 2 SCC 411 and Dolat Ram v. State of Haryana, (1995) 1 SCC 349, expounded the position in law vis a vis cancellation of bail.
The power conferred under Section 439(2) CrPC has to be exercised in a discreet fashion, without dwelling on the merits of whether bail should have been granted or not and only upon viewing the subsequent conduct of an accused. The power is coupled with the reserve and caution, akin to the usage of the High Court’s inherent powers given under Section 482 CrPC.
Application for Cancellation of Bail and Grant of bail are different from each other, Bench added that High Court will not exercise its jurisdiction to interfere with an order of bail granted by Special Judge if there is no serious infirmity in it.
In the present matter, Court found the order of the ASJ to be well reasoned requiring no interference.
Lastly, the Court dismissed the petition noting that Court has not made any observation on the nature/manner of investigation, and if an application challenging the nature/manner of investigation is filed by the complainant, the Trial Court is requested to consider the same. [Charu Soneja v. State (NCT of Delhi), 2022 SCC OnLine Del 5, decided on 3-1-2022]
Advocates before the Court:
For the Petitioner: Mr K. K. Manan, Senior Advocate with Ms Uditi Bali and Ms Komal Vashist, Advocates
For the Respondent: Ms Kusum Dhalla, APP for the State with SI Ravinder Kumar, PS Naraina Ms Kamlesh Mahajan, Advocate for R-2 to R-5