By Dr Swati Jindal Garg
In a controversial order which stirred religious sentiments, bail given to three persons accused of assaulting a Muslim man on a train was cancelled in less than 24 hours. The decision came after pressure was built on the Thane Railway police to enhance the charges levied on the accused. It was alleged that even when the 72-year-old man was badly beaten up and videos of the attack had gone viral, the police had charged the accused with bailable sections.
It all started when Ashraf Ali Sayyed Hussain was attacked by a group of men—all in their 20s—on the allegation that he was carrying beef. The men assaulted him and even threatened to throw him out of the moving train.
While consumption of cow and bullock meat is banned in Maharashtra, buffalo meat is still legal. Regardless of its legality, it is only the law enforcement department that can look into these cases. However, there have been multiple cases where men suddenly transforming themselves into cow vigilante groups assault those who have been found to be carrying beef.
In the case in question, the aggrieved was allegedly carrying buffalo meat, but was still beaten mercilessly. After videos of the assault went viral, many leaders, including MLA Jitendra Awhad from the Nationalist Congress Party (Sharad Pawar faction) and activists of the Social Democratic Party of India (SDPI) demanded quick action. They stated that the serious charges of communal disharmony and assault must be applied against the accused as these were missing from the original FIR.
The investigating officer then moved an application before the court seeking addition of new charges—Section 302 (uttering words with deliberate intent to wound the religious feelings of another person) and 311 (deals with robbery or dacoity with an attempt to cause grievous hurt or death) of the Bharatiya Nyaya Sanhita (BNS) amid allegations that the police was actively trying to water down the case against the accused. Section 311 is a non-bailable section and can be tried before a sessions court.
Even though the FIR mentions that several unknown persons were involved in the assault, so far the police has arrested only three, all from Dhule district. The BNS has a section pertaining to mob lynching—Section 103(2)—but this was not invoked in the case. There was also no suo motu cognisance of the hate speech given by the accused despite there being clear signs that the alleged incident was communally motivated. The FIR had named six accused, but the police has only managed to arrest three, all of whom were released on bail less than 24 hours later. Following mounting outrage, the police then added Sections 302 and 311 of the BNS and it was only thereafter that the bail order was cancelled.
The law on bail has evolved by laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him under custody. The Supreme Court in Vaman Narain Ghiya vs State of Rajasthan highlighted that the concept of bail emerges from the conflict between the police’s power to restrict the liberty of a man, who is alleged to have committed a crime, and a presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of guilt. Criminal law practice, however, indicates that there may be numerous situations wherein the mechanism of bail can be refused or not be made available if found to be in conflict with justice and fair investigation.
Such situations of conflict may be evident while an application of bail is being considered, or may also arise after an order of bail has been granted by the court. In the latter case, courts may exercise their discretion to cancel the order of bail. The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to society by preventing the accused (who was set free) from tampering with the evidence in a heinous crime. At the same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the court which granted bail.
Taking note of the fact that cancellation of bail necessarily involves review of a decision already made, it has been emphasised that this should always be exercised very sparingly by the court.
In Harjeet Singh vs State of Punjab, it was highlighted that there was a long-standing convention and requirement of judicial discipline that subsequent application for grant or cancellation of bail should be placed before the same judge who had passed the earlier order. In the present case too, the bail was cancelled on the grounds that certain new charges that were much more grievous had been added.
It cannot be denied that cancellation of bail is an order that interferes with the liberty of an individual. Hence, it must not be lightly resorted to. It also stands on an entirely different footing from that of rejection of a bail and hence, the criteria applied for both vary.
The Supreme Court in Aslam Babalal Desai vs State of Maharashtra distinguished between a case of bailable and non-bailable offence by stating that it was easier to reject a bail application in a non-bailable case than to cancel a bail once granted. This is because cancellation of bail interferes with the liberty already secured by the accused either by the exercise of discretion by the court or by the thrust of law. More specifically, it has been stated time and again that the power to take into custody an accused who is already on bail has to be exercised with extreme care.
In a catena of judgments, the Supreme Court identified a series of circumstances which could warrant an order from the court leading to cancellation of bail. The list is illustrative, not exhaustive.
Abdul Basit vs Mohd Abdul Kadir Chaudhary, for example, enumerates the grounds for cancellation of bail:
- The accused misuses his liberty by indulging in similar criminal activity.
- Interferes with the course of investigation.
- Attempts to tamper with evidence or witnesses.
- Threatens witnesses or indulges in similar activities which would hamper smooth investigation.
- There is likelihood of his fleeing to another country.
- Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.
- Attempts to place himself beyond the reach of his surety, etc.
However, judicial pronouncements have broadened the horizons of the powers of courts. It has been clarified in multiple cases that an order granting bail, which is tarnished by patent illegality or perversity and which does not assign reasons for the order, can definitely be set aside. An order granting bail based on irrelevant material or an order which does not take into consideration relevant material can also be cancelled under the said provision.
The Court also held in Prakash Kadam vs Ram Prasad Vishwanath Gupta that if there are serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. The Supreme Court has even gone to the extent of holding that illegality or perversity of the order granting bail is an “independent ground” for cancellation of bail.
The law of bail in India has made progress by leaps and bounds. The rule of “bail and not jail” has been followed in most cases. However, the courts have always been vigilant to ensure that public safety
and good are not harmed. Considering the overall trajectory of developments in this area, it is clear that the approach towards bail in India has evidently become stringent. This is also reflected in the modern legislations and the rigidity adopted by the courts in the grant of bail.
However, the general principles regarding cancellation of bail remain unchanged. Keeping in mind the fact that obtaining bail is an arduous task, it is in tune with the constitutional values of protecting life and liberty.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi