Judiciary Answer Writing 1


Q.1. Can a bail granted under Section 167(2) of Cr. P.C. be cancelled by magistrate on presentation of challan u/s 173 Cr. P.C.?

Answer. Once an accused has been released on bail under section 167(2) of code  of Criminal Procedure, 1973 (Cr.P.C.), he cannot be taken back in custody merely on filing of charge-sheet, but only when, special  reasons grounds  for doing so exist.

Commission of non-bailable offence.

This has been the position taken by the Supreme Court (SC) in Raghubir Singh V. Sate of Bhiar, 1986, and Subsequently reiterated in, Aslam Babala Desai V. State of Maharashtra, 1992  where in similar issue has arisen before the Supreme Court (SC)

The provision for bail under section 167(2) manifests the legislatures intention/objective to provide for speedy trial and regard individual liberty. In case of default by investigating agency to complete investigation within the period prescribed under proviso.(a) to section 167(2), the accused is entitled to be released on the bail. The release on bail as investigated under the proviso.(a)  is to be deemed to be a release under chapter XXXIII of the code. Hence the power of the magistrate to cancel the bill has to be traced to section 437(5) or section 439(2) of the code falling under that chapter.

Although the record in the charge-sheet is relevant but strong grounds are required for the cancellation of bail, which may be:-

  • Interference or attempt to interfere with administration of justice
  • Causing disappearance or tampering with evidence
  • Attempting to evade the jurisdiction of court or country, and,

Such other grounds on which the court considers necessary to re-arrest the accused and commit him to custody as under section 437(5) and section 439(2). (Raghubir Singh case). Cancellation of bail may be sought if the challan report shows reasonable grounds to believe that accused has committed non-bailable offence. Balancing the liberty of individual and security and order of public, once the bail granted under section 167(2) of Cr.P.C. the liberty of the accused cannot be interfered with lightly and can only be on solid cogent grounds are the courts have the power to weigh the merits of the case. The accused cannot claim a special right to remain on bail.

However, merely on the ground that subsequent to release on bail, challan report has been filed under section 173(2), bail cannot be cancelled as this would destroy the very purpose of default bail under the code.