Supreme Court Guidelines

Cancellation of Bail granted Under section 167(2)

Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1: (1992) 4 SCC 272

1. The provisions of the Code, in particular sections 57 and 167, manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him without a Court order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on.bail and the order passed to that effect under section 167(2) would be an order under section 437(1) or (2) or 439(1) of the Code. Since section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under section 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to section 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e., on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by sections 57 and 167(2) of the Code. We are, therefore, of the view that, once an accused is released on bail under section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant’s case, AIR 1996 SC 71 to the extent it is inconsistent herewith does not, with respect, state the law correctly.

2. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We, are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court’s view in the case of Bashir v. State of Haryana, AIR 1978 SC 55 and Raghubir Singh v. State of Bihar, AIR 1987 SC 149 but if any ambiguity has arisen on account of certain observations in Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71 our endeavour is to clear the same and set the controversy at rest.

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M. A. Rashid

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