MADRAS HIGH COURT
Thangamani, J.
State and Ors. - Petitioners
versus
E. Veeramani - Respondent
Crl. Misc. Petition Nos. 1740, 2114 and 5253 of 1994
All decided on 19.10.1994

IMPORTANT POINT
Once an accused has been released on bail his liberation from custody cannot be lightly interfered with but in a proper case where ends of justice would be defeated unless the accused is committed to custody power of the High Court to cancel the bail cannot be exercised.

Headnote:(i) Criminal Procedure Code, 1973 - Section 439 (2) - Cancellation of bail - Considerations for Court - Criteria for ordering of bail and cancellation are not identical - Power of High Court to cancel bail to be exercised when;

       Held: It is true that once an accused has been enlarged on bail, his liberation from custody cannot be lightly interfered with, but this does not mean that even in a proper case where ends of justice would be defeated unless the accused is committed to custody, power of the High Court to cancel the bail cannot be exercised. Though in A.I.R. 1993 S.C. 1 (supra) the Supreme Court indicated seven grounds mostly based upon the activities of an accused after the grant of bail to him, at the same time it observed that these grounds were illustrative and not exhaustive and where there are strong grounds, cancellation of bail can be ordered in a proper case. So the larger interests of the State and community including the consideration that parties do not lose faith in the system and take law into their own hands to wreak vengeance by private retribution is certainly a relevant factor to be taken into account while considering cancellation of the bail. The two instances mentioned in the affidavit prima facie establish the misuse of the liberty enjoyed by the respondent and his potentiality to indulge in terrorising persons even while residing at the farthest point from Madras. Besides, although it may not be possible for a Court hierarchically subordinate to the High Court, which granted bail to the accused, to consider cancellation thereof without the intervention of a supervening circumstance it is competent in law for the High Court to cancel bail in a paper and suitable case as a superior court, while examining the propriety and legality of the order granting bail and interfere accordingly. The principles which flow from the decisions of the courts in the matters of grant or cancellation of bail cannot be put in a strait-jacket and facts of each case would govern the matter. As regards the submission of learned counsel for the respondent that on merits learned Additional Sessions Judge was justified in granting bail to the petitioner is concerned, I am of the opinion that it was not the right stage for learned Additional Sessions Judge to have exercised his discretion in granting bail to the present respondent. Perhaps he was carried away by the ‘no serious objection' on the part of learned Public Prosecutor. But learned Additional Sessions Judge failed to take into consideration that the allegations against the accused are very serious. There is no doubt that the liberty of the accused has to be safeguarded in accordance with law but while keeping in mind the interest of the accused, the collective interest of the community cannot be lost sight of so that the parties do not lose faith in the administration of justice. (Para 21)

       (ii) Criminal Procedure Code, 1973 - Sections 167(2) and 439(2) - Bail granted on failure to lay charge sheet within 90 days - Indefeasible right to be released accruing to accused in such a situation is enforceable only prior to filing of challan - Right does not survive or remain enforceable on challan being filed, if already, not availed of - Once challan has been filed, question of grant of bail has to be considered and decided only with reference to merits of case.

       Held: The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already, not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr. P.C. ceases to apply. The ratio laid down in this recent decision of the Supreme Court wholly applied to the facts herein also. The argument of Thiru A. Natarajan that this judgment has no bearing on the facts of the present case since it was rendered under the provisions of TADA. Act is untenable. Under the provisions of TADA Act only the period prescribed in Section 167 is modified and nothing more. Though the present respondent was ordered to be released under Section 167 (2) Cr. P.C. in May 1994 itself, on his failure to furnish surety and avail the order in his favour, the right accrued had extinguished the moment the charge-sheets were filed. (Para 27)

       Result: Ordered accordingly.