The grounds for cancellation of bail under sections 437(5) and 439(2) are identical; namely, bail granted under section 437(1) or 437(2) or section 439(1) can be cancelled where the accused:
- issues his liberty by indulging in similar criminal activity,
- interferes with the course of investigation,
- attempts to tamper with evidence of witnesses,
- threatens witnesses or indulges in related activities which would hamper smooth investigation,
- attempts to flee to another country
- attempts to make himself limited by going underground or being unavailable to the investigating agencies,
- attempts to place himself away from the reach of his surety, etc.
These grounds are illustrative and not exhaustive. Section 439(2) discusses the powers on the High Court and the Sessions Court to direct re-arrest of the accused who might have been released on bail by any court and commit him to custody.
A comparison of section 439(2) and section 437(5) makes it clear that the powers of cancellation of bail vested in the High Court and the Sessions Court are far-reaching vis-vis the powers of the Magistrate court. Section 439(2) confers the power of cancellation of the bail on the High Court as well as the Sessions Court in respect of the order of bail passed itself and by any court subordinate to it as well.
The powers to cancel an order of bail passed by itself by the Sessions Court or the high court as the case can usually be exercised only wherein the person who is released on bail is convicted of misuse of the freedom granted by the court, or there is an extraordinary change in the certainty of a case. Nevertheless, as far as the cancellation of bail orders passed by a court subordinate to that is concerned, no specific restricted interpretation is justified.
Section 439(2) certainly provides that any individual who has been released on bail under this section may be arrested and committed to custody by the High Court or Court of Sessions.
So, it is lawfully permissible to a High Court or Sessions Court to examine and review an order of bail passed by the court subordinate to it on merits and determine whether the order is legally sustainable or not. The Magistrate has the power to pass the subsequent order amending or altering or deleting the conditions of the previous bail order in any manner whatsoever. Section 437(5) of CrPC impliedly confers such power on him.
While the Magistrate is conferred with the power and authority to cancel his order, therefore, as a logical 7 corollary, it follows that he/she does have the power as well to amend or effect necessary alterations, short of cancellation, in the earlier bail order passed by him. It is now a decided law that complainant can always challenge the order granting bail whenever the said order is not validly c passed. It is not as if once any court grants bail, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. Bail already granted cannot be cancelled on the ground that police needs custodial interrogation of the accused.
