 in continuation of that and as we keep on saying that this is Ram Kumar passion to pay back to the society keeps on and that makes us beyond all the CLC team also to continue to tap this is Ram Kumar's talent. But his talent is so much that we can't even say that it's a tap, it's rather in a lighter way. It's a tube well full of knowledge. So I will request sir to share his knowledge on the part two of this important session. Over to you sir. Thank you EGAS and good evening friends. We started the topic of cancellation of bail the other day. We came up to question number eight. Now we were discussing in Australia that they about the omission in section 436 CRPC for a provision for cancellation of bail in respect of a bailable offense. Unlike in the case of a non-bailable offense where section 437 clause 5 CRPC gives the power to the ministry to cancel the bail. In the case of a bailable offense, there is no corresponding provision in section 436 entitling the ministry to cancel the bailable offense. But then way back in 1958, a three-judge bench of the Supreme Court interpreting the corresponding provision in the 1898 code said that it may be an omission or an oversight by the legislature. And in fact that decision was subsequently approved by a constitution bench also. But then I would respectfully submit that it need not necessarily be an omission because legislature might have consciously the framers of the code might have consciously not provided a provision in section 436 for cancellation of bail in respect of a bailable offense because we have noted the other day the only condition which can be imposed in a bailable offense is the condition for appearance and date for appearance. Therefore that is the only condition imposed. No other condition can be imposed in a bailable offense. Therefore when the court imposes the condition of date and time of appearance before the court in a bailable offense and when that condition is breached. It automatically forfeit the bail bond under section 446 and the court can proceed against the accused and the sureties under section 446 CRPC for recovery of the penalty which they had undertaken to forfeit to the government in the event of a default or breach of condition for appearance by the accused. So that I think you should take care of the situation because the forfeit of the bail bond is almost having the same force as cancellation of bail. In fact he is saying once the bail bond is forfeited the accused cannot be granted bail on that bond. Likewise when the bail is cancelled then also the accused cannot be granted bail and he can be ordered to be arrested. Therefore it should take care of the situation. Of course the Supreme Court under the old code held that when the said condition for appearance is breached by the accused by remaining absent. Since the magistrate cannot cancel the bail the high court can intervene and cancel the bail by virtue of the inherent power under section 561A CRPC. But then in the present code of 1973 under section 439 CRPC that situation is taken care of in a way even though the magistrate is not given the power to cancel bail in respect of a bailable offense. The sessions court and the high court are given the power because 4392A a bail granted under this chapter which includes grant of bail under section 4392A can be cancelled by the sessions court or the high court. So court session can cancel the bail though not the magistrate and the magistrate can take proceedings under section 446 for future of the bond and recover a penalty. That should take care of the situation that is my respectful submission. With that we pass on to question number 9. Should not the bail granted to the accused be cancelled if he remains absent on the day when the witnesses are to be examined and they are present in court. See the case says stand posted for trial. Witnesses are in attendance personal to someone's issue to them. Accuses remain absent. So whether knowingly or unknowingly he remains absent. So that can have the effect of dislocating the trial under section 309CRPC trial should be conducted day by day. There should not be any interruption in the trial. Therefore when the accused remains absent and witnesses are in present in attendance. The accused should not be take should not take advantage of his absent and get an adjournment of the trial. No trial should go on. So he the Supreme Court observed Supreme Court in state of UP versus Shambunab Singh. AIR 2001 Supreme Court 1403 preaching through justice Katie Thomas observed as follows. I quote we make it abundantly clear that if if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them after keeping aside their own evocation. Certainly they incur suffering and loss of income. The meager amount of beta allowance which a witness may be paid by the court is generally a poor soles for the financial loss incurred by him. It is a sad plight in the trial court that witnesses who are called through summons or other processes stand at the doorstep from morning till evening. Only to be told at the end of the day that the case has been adjourned to another day. This primitive practice must be reformed by presiding officers of the trial court and it can be reformed by everyone provided the presiding officer concerned as a commitment to duty. If any court finds that the date today examination of the witness mandated by the legislature cannot be complied with due to the non-corporation of the accused or his counsel, the court can adopt any of the measures indicated in the subsection of section 309. That is remanding the accused to custody or imposing cost on the party who won such adjournments. The cost must be commensurate with the law suffered by the witnesses, including the expenses to attend the court. When the accused is absent and the witness is present to be examined, the court can cancel his bail if he is on bail. Then, unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witness present, even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused is the case. These observations are found in paragraphs 8 and 13 of the above decision. Now, we already noted the other day that when the case is posted for trial and the accused remains absent, he can file a petition with an affidavit incorporating three important conditions. One, that he may be permitted to remain absent. Two, evidence may be recorded during his absence. He is thereby forfeiting his right under section 273 CRPD to be present. Then three, his counsel may be permitted to represent him during his absence. And last clause important that he will not question the capacity of the prosecution witnesses to identify him because he is not in the dock. Therefore, if the prosecution witness is unable to identify the assailant, he cannot turn around and say that the prosecution has not succeeded in identifying me. None of the prosecution witnesses has identified me. He will not be heard to say that because he had consciously forfeited his right under section 273 CRPD. So, Justice Thomas has emphasized the need for filing such a petition when the accused is absent on a day when witnesses are in attendance. So, there is no question of adjourning the trial. Either he can be remanded to custody as a punishment or he can be called upon to pay cost to the witnesses. In case the adjournment is found, absolutely essential. Ordinarily court should not adjourn the trial, which has already been started. Question number 10. Is not a prosecution witness turning hostile to the prosecution? A circumstance justify the cancellation of the bail granted to the accused. Now, you see, there are situations where a prosecution witness may turn hostile, not because he has been won over by the accused. There can be genuine reasons. For example, a police officer who is not honest, he may prepare a 161 statement of a witness without even seeing the witness. Sitting in the police station, he may prepare a 161 statement of the witness because he doesn't require signature. Therefore, police officer may prepare a 161 statement. And during trial, if that witness is summoned before court, he ways genuinely and honestly say that I was never questioned by the police officer. I have not given any statement to the police officer. And if he is confronted with so-called statement given by him, he will say, I never gave such a statement. He is honestly saying that. So, from that court or the prosecution cannot straight away jump to the conclusion that he has been won over by the accused. No, he need not necessarily be won over by the accused. But there can be situations where accused might have won over the witness and that is why he is turning hostile. So, merely because the witness turns hostile, court cannot jump to the conclusion that he has been won over by the defense. The fact that the prosecution witnesses have turned hostile cannot by itself justify the inference that the accused was won over, accused as won over them. Won them over, unless there is reliable material to suggest the same. The citation is, state through Delhi administration versus Sanjay Gandhi, A.I.R. 1978, Supreme Court, 961. The three judges are Y.V. Chandrachut, Chief Judges. He is the author of the judgment also. Justice Murthasa Fazalani and Justice P.N. Shingal. Question number 11. In a case where the court is convinced from the attendance register maintained by the SHO, the station house officer, the officer in charge of the police station, that the accused has violated the bail condition regarding reporting before the police. Is it necessary to give notice and an opportunity of being heard to the accused before his bail is cancelled? The accused has been granted bail with conditions. One of the bail conditions is that he shall appear regularly every week on a particular day, at a particular time before the investigative officer, police officer. Now, the police officer produces a diary maintained by him in the police station to show that even though the accused appeared on two or three occasions, thereafter he has not appeared before the reporter, before the police, as can be seen from the register maintained by him. He has not come and signed, he has not come and signed the register. So this is a conclusive evidence that the accused has violated the bail condition. Now the question is, is it not sufficient for the court to cancel the bail even without notice to the accused? No. Answer is an emphatic no. See, there can be 101 reasons for the accused as to why he did not sign the... There might be genuine reasons, for example, a near-relative of his might have passed away or he might have reported every day, but the police officer is having a grudge against him. So he might have deliberately refused to allow him to sign the register. That may be one of the reasons. So he may have very valid reasons as to why his signature does not appear in the register. Therefore, there is no question of the court straight away cancelling the bail even without notice to the accused. The Supreme Court in Gurudev Singh was the state of Bihar. AIR 2000 Supreme Court 35561, GS Patanayik and UC Banerjee held that report of the... That was the case where the process server had given a report. The fact that the accused was someone, was served with summons. The process service reports server to the effect that accused was refused to summons because when he made a report that when he attempted to effect service of summons, the accused refused. Therefore, he affixed the... Now that report is not the last word, cannot be treated as sacrosanct and that the accused was entitled to notice before cancellation of the bail. The court cannot straight away rely on the report of the process server to come to the conclusion that accused has refused summons. Therefore, he need not be heard. No, there may be very valid reasons why such a report was given by the process server. Supreme Court says the report of the process server is not sacrosanct. Court can not withstand such a report looking to the question as to whether there was valid reason for the accused not to appear before him. That is, again in parasics of Thammanam Shaji, P.K. Shaji versus state of Kerala. A.A. 2006 Supreme Court, page 100, 100. K.G. Balakrishnan and this is B.N. Sri Krishna. They also said that the accused is entitled to notice before cancellation of bail. Bail cannot be cancelled straight away without even notice to the accused. He has to be heard because he was enlarged on bail. He was given liberty to move above. Not that liberty is being curtailed without even hearing him. Audio-alterm part of principle also will apply. Question number 12. Who can apply for cancellation of bail? The other day somebody had raised this question also. The state acting through the public prosecutor, the agreed party can apply for cancellation of bail. The High Court also can cancel the bail so motto. Any member of the public who has a concern in the matter can also move the High Court for reminding it of the need to invoke the same power so motto. That is what the Supreme Court said in A.I.R. 2000 Supreme Court 1851. A.I.R. 2000 Supreme Court 1851. Justice K.T. Thomas and Mohapatra. Justice. Now, recently in 2022, in Jagjeet Singh v. Ashish Mishra, L.A.S. Monu, 2022, three Kerala High Court cases, 449 Supreme Court, three judges speaking through N.V. Ramana. Justice Surya Gandhi is the author of the judgment. Hima Kohini in criminal appeal 632 bar 2022 held that a victim is also entitled to be heard right from the stage of investigation till the culmination of proceedings, not only before the trial court but also in appeal or revulsion as the case may be. The new concept of victimology is beautifully laid down in that decision. You read paragraphs 24 to 27 of Jagjeet Singh's recent decision. It was rendered on 18 for 2022. Yes, question 13. The accused has been granted bail in a case involving an offence punishable under section 326 IPZ. Subsequently, the victim dies and the investigating officer incorporates the offence punishable under section 302 IPZ. Is it not a circumstance justifying cancellation of the bail already granted to the accused? It was only 326 and the accused was granted bail but then the victim subsequently died out of the same injury. Therefore the police incorporated 302 murder also in the FIR. So the question is, is not the incorporation of the graver offence, a grounds justifying cancellation of the bail? No, merely because the graver offence has subsequently been incorporated after the enlargement of the accused on bail. That by itself is not a circumstance to cancel the bail. For cancellation of bail, the conditions for doing so should be present. A bail can be cancelled only if the accused has been guilty of breach of the bail conditions or if he has abused the liberty granted to him. Upon incorporation of the graver offence, the bail already granted to the accused earlier will not be of any avail to him. Of course, he cannot take advantage of the earlier bail. He will have to apply for fresh bail with regard to the graver offence. With regard to the graver offence, he can be called upon by the magistrate or the certain judge to apply for bail with regard to the aggravated offence, the graver offence. That is not a grounds straight away to cancel the bail. The citation is for Akhla Singh Bhatti versus NCT of Delhi, AIR 2001, Subringot 1444. Again Justice KT Thomas and R.P. Sethi. Justice R.P. Sethi is the author of the judgment. Then again, there is a subsequent 3G bench decision of Subringot in, which is 2G only. Pradeep Ram versus state of Jharkhand, AIR 2019, Subringot 3193. That is Ashok Bhushan and K.M. Joseph, author of the judgment is Ashok Bhushan. The court exercised the power under section 437-5, SLS 439-2, CRBC. In exercise of that, the power court can direct the person who has already been granted bail to be arrested and commit him to custody, consequent on addition of graver or non-cognizable offence, which may not necessarily always be with an order of canceling bail. Subringot subsequently stated that the court has got the power to cancel the bail also. But then without not, it is not a requirement or invariable requirement because the court need only ask the accused to apply for bail with regard to the graver offence, subsequently incorporate. That is the, just because the police have incorporated a graver offence subsequently, that is not a ground for straight away canceling the bail already granted. Because at the time, in fact, one observation is very important. In a case where an accused has already been granted bail, the investigating authority consequent on the addition of an offence for offences may not proceed to arrest the accused. But for arresting the accused on such addition of offence or offences, it need not obtain an order to arrest the accused. There is a need to obtain the order, order the arrest the accused from the court, which had granted him bail. Court alone can order the arrest of the accused either under section 435 or section 4392 CRPC. Just because there is a, there is a, a graver offence has been incorporated, the police cannot straight away arrest the accused. Because he is on bail, bail granted by a court, by a court of competent jurisdiction. So that court alone can direct his, his arrest and commit him to custody. Therefore, without the, in order of the court, police cannot arrest him. Now the most practical course is what, what was suggested in Perala, Perala Singh Bhati, a year 2001 Supreme Court, 1444. Asking the accused already on bail to apply for fresh bail with regard to the graver offence. And it is only if he does not do so, should the court resort to the extreme step of cancelling the bail. That is, that would be the most practical way of approach. Now question number 14. In a murder case, the high court grant bail to the accused during crime stage. Subsequently, the accused is star seated by the police. And the case is thereafter committed to the session court. The accused is granted fresh bail by the session court. Thereafter, the defective complainant approaches the high court for canceling the bail, granted during the crime stage, alleging that the accused had violated one of the conditions imposed by the high court. Is it not permissible for the high court to cancel the bail? Now see, during the crime stage, during the investigation stage, high court had granted bail. Subsequently, after the investigation was over, charge sheet was filed. Case was committed to the court of session. Sessions court granted him fresh bail on his appearance. Now there is a petition filed before the high court by the defective complainant. To effect that, at a time when the order of the high court was in force, he committed the violation of one of the bail conditions. Now is it a ground for canceling the bail? Now the bail granted during the crime stage had worked itself out after the charge sheet was filed. The bail order which is operative is the one which was granted by the session court and not by the high court. The order passed by the high court had merged in the order of the session court. The operative order which is in force is the order of the session court. He has no contention, the complainant has no grievance that the order of the session judge has been violated. Bail condition, the condition of the, I am sorry, the condition imposed by the session court has been violated. Therefore, the court cannot cancel the bail, high court cannot cancel the bail, which has worked itself out with the filing of the charge sheet. That is the view taken by the Kerala, I quote in state of Kerala versus Moideen Kunju, case of Kerala versus Moideen Kunju. 2012, 1 KLT, Kerala law times 203, 2012, 1 KLT 203. We pass on to the next question. Supposing apart from imposing conditions like prohibiting the accused from intimidating the prosecution, attempting to tamper with the prosecution evidence, etc., the bail order passed by the magistrate during the stage of inquiry also directs the accused to appear before the court on the dates of posting of the case. The accused commits breach of the condition for appearance before court by unjustifiably remaining absent. Is it a ground for future of the bail, bail bond or a ground for cancellation of the bail? The bail is granted to the accused on certain conditions, like appearance before police officer. He shall not intimidate the prosecution witnesses. He shall not attempt to tamper with the evidence for the prosecution. He shall appear before the court on specified dates, etc. Now he violates the condition regarding appearance. Now the question is, what is the remedy? Is it for a feature or cancellation of bail? Both remedies are open. Since the bond is also for appearance, the remedy for a feature of bond can be involved. And for a feature is automatic, as we have already seen. Then he and the shortlist can be procedure again under section 445. Then he has also violated one of the bail conditions for appearance. So the bail can be cancelled by resort to section 435 if he is a magistrate. The section 439 too, if it is the quarter session or ICO. So both remedies are available. Question number 16. When a bail bond cancelled, when is a bail bond cancelled? When is an order, bail order cancelled? The question is, when is a bail bond cancelled and when is an bail order cancelled? The bail bond gets cancelled when the accused commits breach of the bail condition for appearance. Resulting in the automatic for a feature of the bond under section 446, capital A, small a, C, R, B, Z. A bail order becomes liable to be cancelled under two situations. Bail order. Bail bond is automatically cancelled by breach of the condition for appearance. Four feature is automatic. Now bail order can be cancelled under two situations. One, where the order granting bail was perverse in that no reasonable court, magistrate or judge, well instructed in law would have granted bail in such a case. In such a case, the superior court can, not the same court, the superior court can set aside the bail order. Now this is covered by Hooran's case, 2001 volume 6, SCC 338, Pines's case, 2008 volume 5, SCC 66, Bridgy Nandan Jaiswal's case, 2009, one SCC 768, and Miangala Dharmarajan's case, year 2020 superior court, 317. So where the bail ought not to have been granted, but has been granted by taking into irrelevant consideration and omitting to take into consideration relevant consideration, that will be an order, perverse order. When such a perverse order of bail has been granted, the superior court can cancel the bail. Actually it is not canceling the bail, it is setting aside the bail order where the bail ought not to have been granted. Then the second situation is, we have already seen, where after it is released on bail, the accused has violated any of the bail conditions. The, or he has, that is virtually the, the contact to the accused, bail, post bail contact to the accused has been such that he has violated the bail condition. He has misused the liberty granted to him through the bail order. In such situations, the court can cancel the bail by resort to section 435 CRPC if he is a magistrate, or 439 CRPC if he is a session court or the high court, court of session or the high court. These are the two situations where a bail order can be cancelled. Whereas a bail bond can be cancelled by automatic, by the absence of the accused, by the failure to appear before the court, that itself results in the four-feature of the bond leading to the court taking action under section 446 CRPC. I suppose you understood the distinction between four-feature of bond and the cancellation of bail or setting aside the bail order. These are three things which have to be very, the distinction should be very clearly understood. Thank you friends, thank you. Thank you sir for sharing your knowledge. It's always a pleasure connecting with you. And these short talks, short questions, have a deeper dive into the law and stay blessed. That's what the Beyond Law CLC team and those who watch you can only seek blessings for you. Thank you.