Whether Fresh Material or Subsequent Developments Can Be Considered by Courts While Seeking Cancellation of Bail under the Bharatiya Nagarik Suraksha Sanhita, 2023

Whether Fresh Material or Subsequent Developments Can Be Considered by Courts While Seeking Cancellation of Bail under the Bharatiya Nagarik Suraksha Sanhita, 2023

Introduction

Bail plays an important role in the criminal justice system of India. It attempts to strike a balance between the right to life enshrined under Article 21 of the Constitution and the broader social need for a just criminal procedure.[1] Though the award of bail ensures that no individual undergoes unjustified detention, there are situations that may arise after bail has been granted and that call for the cancellation of bail. The BNSS, replacing the CrPC, still upholds the power of the courts to cancel bail where required.

One of the most critical issues in bail cancellation proceedings is whether fresh material or subsequent events that arise after bail has been granted can be considered in cancellation proceedings. It must be noted that judicial precedents have clearly established the fact that cancellation of bail is not merely a re-examination of the bail decision. Instead, it relies on subsequent events arising out of the situation after bail has been granted. This article will focus on the legal position under the BNSS regarding cancellation proceedings and fresh material or subsequent developments.

Statutory Framework under the BNSS

Cancelling the liberty given on bail is provided under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which bears a close resemblance to Section 439(2) of the Code of Criminal Procedure, 1973.[2]

Under Section 483, the court can pass an order stating that a person released on bail shall be taken into custody. This section gives wide discretion to superior courts to ensure that no misuse of the freedom granted under the law takes place.

This section of the act provides no mention of the criteria under which an accused may be denied bail. Hence, there are no explicit criteria for the cancellation of bail in the form of a law. Cancellation of bail is mostly governed by judicial precedents.

Difference Between Granting and Cancelling Bail

It has been observed several times by the Supreme Court that there exists a significant difference between granting and cancelling bail. Though bail may be rejected based on several aspects such as the nature of crime committed, chances of fleeing, or any possibility of tampering with evidence, there should be some subsequent situation before the liberty can be cancelled. In Dolat Ram v. State of Haryana (1995),[3] the Supreme Court has stated that very strong and overwhelming circumstances would be necessary for cancelling bail already granted. It should also be noted that according to the Court, denial of bail at the outset and cancellation of bail already granted are two different aspects.[4]

This is the premise from which arises the principle that subsequent events or developments play an extremely important role in deciding about cancellation.

Significance of Fresh Material/Subsequent Developments in Cancellation Proceedings

Fresh material means those materials or documents which did not come to the notice of the court at the time when the order of bail had been made. Subsequent developments mean any development that occurred after granting of bail to the accused. It has always been held by courts that subsequent developments can very well form the basis of cancellation of bail.

The justification for such an approach lies in the fact that when granting bail, it was only on the facts prevailing at that time that the court proceeded.

 

Some examples of subsequent developments include:

1. Intimidating or threatening of witnesses.
2. Making away with evidence.
3. The recurrence of crime.
4. Breach of bail conditions.
5. Absconding attempts.
6. Obstructing investigation/trial.

In such cases, the courts are likely to take into account any new evidence and developments before deciding whether it would be appropriate for the accused person to remain on bail.

Judicial Precedents

Dolat Ram v. State of Haryana (1995)

This is a significant judicial precedent regarding cancellation of bail.[5] It holds that it may be cancelled where the accused abuses justice, evades the due process of law, abuses or misuses the right given to him by the court[6].

It is clear from the decision that there must have been conduct or activities by the accused subsequent to his release on bail before such action could be taken against him.

X v. State of Telangana (2018)[7]

In this case, the Supreme Court made clear once again that it could cancel the bail order where supervening facts and circumstances showed the misuse of liberty. The Court held that there was no bar to taking into account post-bail evidence.[8]

It was emphasized that safeguarding the sanctity of the criminal trial process might necessitate cancellation of bail order where new evidence came to light.[9]

Mahipal v. Rajesh Kumar (2020)[10]

The distinction made clear by the Supreme Court was as follows. Cancellation of bail could take place due to subsequent misconduct by the accused or due to grave defects in the bail order passed earlier.[11] It was observed that if a bail order is arbitrary, capricious, or based on ignoring relevant information, higher courts can step in even before any other event takes place. Yet, when cancellation of bail is proposed based on actions following the order, fresh material takes precedence.[12]

Puran v. Rambilas (2001)[13]

In this case, the court widened the ambit of judicial scrutiny by ruling that cancellation could happen if the bail order was obtained by ignoring relevant information or relying on irrelevant considerations. While it was true that cancellation need not always stem from post-bail events alone, supervening facts were also an established basis for canceling bail.[14]

Fresh Materials Examined By Courts

As mentioned above, courts will usually try to ascertain whether the fresh materials submitted by the petitioner are credible, relevant, and serious enough to warrant cancellation of bail. Speculation or bare allegations will not do in such cases.

Commonly considered materials include:

• Police report showing breach of bail conditions.
• Statements made by witnesses about intimidation or threats.
• Electronic communications showing efforts to influence the witness.
• Evidence proving participation in new criminal activity.
• Evidence showing lack of cooperation during investigation.

Cancellation involves the deprivation of personal liberty; hence, the court will be very careful. In this regard, evidence to be considered for cancellation must not only be fresh but also significant and substantive.[15]

Constitutional Aspects

Any decision to cancel bail must necessarily be in conformity with Article 21 of the Constitution.[16] As personal liberty constitutes a fundamental right, the court has been very keen to stress the need to avoid mechanistic cancellation.

However, the Article also guarantees the rights of victims, witnesses, and society in general. Where personal liberty is abused in such a way as to jeopardize the fairness of the criminal trial process, then cancellation may become necessary.[17] This is where the significance of the examination of new material comes in.

Problems in Practice

Despite having legal principles well established, problems could occur in practice. It may prove to be difficult to establish any claims with regard to witness intimidation or tampering with evidence. Moreover, there may be a chance that cancellation applications are utilized as means of harassment by the other party. It becomes necessary for courts to have proper evidence before proceeding with cancellation. Courts do not want cancellation process to become an instrument through which justice can be punished prior to trial.

Further, another problem occurs when fresh materials are found that were available before the time of granting of bail. In case these new materials have a significant bearing on the matter of grant of bail, courts would normally take them into consideration.

 

 

Conclusion

Thus, the legal position under the Bharatiya Nagarik Suraksha Sanhita, 2023[18] very clearly shows that courts may take fresh materials into consideration while making decisions with regard to the cancellation of bail applications[19]. Judicial decisions have been consistent in showing that cancellation applications are different from bail applications. Such cases as Dolat Ram v. State of Haryana, Puran v. Rambilas, X v. State of Telangana, and Mahipal v. Rajesh Kumar indicate that courts have the discretion to exercise jurisdiction if fresh facts prove witness intimidation, evidence tampering, breach of conditions under which bail was granted, absconding, or any other conduct that affects the course of justice.[20]

Nonetheless, courts take into account the constitutional significance of personal liberty. As a result, courts require solid evidence to justify the removal of bail. The developed case law illustrates that new facts and subsequent events are crucial to guarantee that bail cannot be used as an excuse to abuse the justice process.

 

 

 

Bibliography

1. Legislation

1. Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023 (India).
2. Code of Criminal Procedure, No. 2 of 1974 (India).
3. Constitution of India.

1. Cases

1. Dolat Ram v. State of Haryana, (1995) 1 SCC 349.
2. Puran v. Rambilas, (2001) 6 SCC 338.
3. X v. State of Telangana, (2018) 16 SCC 511.
4. Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

 

[1] INDIA CONST. art. 21.

[2] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 483 (India); Code of Criminal Procedure, No. 2 of 1974, § 439(2) (India).

[3] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[4] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[5] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[6] Dolat Ram v. State of Haryana, (1995) 1 SCC 349.

[7] X v. State of Telangana, (2018) 16 SCC 511.

[8] X v. State of Telangana, (2018) 16 SCC 511.

[9] X v. State of Telangana, (2018) 16 SCC 511.

[10] Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

[11] Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

[12] Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

[13] Puran v. Rambilas, (2001) 6 SCC 338.

[14] Puran v. Rambilas, (2001) 6 SCC 338.

[15] Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

[16] INDIA CONST. art. 21.

[17] INDIA CONST. art. 21.

[18] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, INDIA CODE (2023), § 483.

[19] Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.

[20] Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Puran v. Rambilas, (2001) 6 SCC 338; X v. State of Telangana, (2018) 16 SCC 511; Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.