SECTION 439(2): LANDMARK JUDGEMENTS AND THEIR RATIOS

1. ANIL KUMAR YADAV AND OTHERS VS STATE OF DELHI AND OTHERS 2017 (SC
JUDGEMENT)

The High Court set aside the order passed by the trial court thereby cancelling the bail
granted to Anil Kumar Yadav. Being aggrieved by cancellation of bail, Anil Kumar
Yadav preferred appeal before the Supreme Court.

Section 439 of the Code confers very wide powers on the High Court and the Court of
Session regarding bail. But, while granting bail, the High Court and the Sessions
Court are guided by considerations like the gravity of the crime, the character of the
evidence, position and status of the Accused with reference to the victim and
witnesses, the likelihood of the Accused fleeing from justice and repeating the offence,
the possibility of his tampering with the witnesses and obstructing the course of
justice and such other grounds are required to be taken into consideration.

While cancelling the bail Under Section 439(2) of the Code, the primary considerations
which weigh with the court are whether the Accused is likely to tamper with the
evidence or interfere or attempt to interfere with the due course of justice or evade the
due course of justice. But, that is not all. The High Court or the Sessions Court can
cancel the bail even in cases where the order granting bail suffers from serious
infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant
materials indicating prima facie involvement of the Accused or takes into account
irrelevant material, which has no relevance to the question of grant of bail to the
Accused, the High Court or the Sessions Court would be justified in cancelling the
bail. Such orders are against the well-recognised principles underlying the power to
grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of
justice and absence of supervening circumstances such as the propensity of the
Accused to tamper with the evidence, to flee from justice, etc. would not deter the
court from cancelling the bail. The High Court or the Sessions Court is bound to
cancel such bail orders particularly when they are passed releasing the Accused
involved in heinous crimes because they ultimately result in weakening the
prosecution case and have adverse impact on the society. Needless to say that though
the powers of this Court are much wider, this Court is equally guided by the above
principles in the matter of grant or cancellation of bail.

2. PURANSINGH AND ORS. VS RAMBILAS AND ORS. (SC JUDGEMENT)

When Section 439(2) grants to the High Court the power to cancel bail, it necessarily
follows that such powers can be exercised also in respect of Orders passed by the
Court of Sessions.

3. C. HINDUMATHI VS STATE OF ANDHRA PRADESH AND OTHERS (11.09.2018

- HYHC) : MANU/HY/0056/2018 (HC JUDGEMENT)

Court can exercise power under Section 482 Cr.P.C. or under Section 439(2) Cr.P.C. to
quash or set-aside or annul the order passed by the Sessions Judge, subject to
availability of grounds to exercise such power. The sum and substance of the above
expressions are crystal clear that there is power of cancellation not only where
accused interferes or influences or threatens any of the witnesses or the like, but also
where the order passed either by the subordinate court or same court is perverse or
otherwise not sustainable from non consideration of relevant material or consideration
of irrelevant material or no reasons given and parameters for grant of bail not
considered by any cryptic order from the flow of administration of justice, for interest
of the society also, if not equal, one of the important considerations to balance with
the personal liberty not only in granting but also in cancellation, though it cannot be
in a mechanical or casual manner without positive material, in showing either granted
mechanically or after bail order and release, accused abused the concession.

4. SMT MADHURI SHARMA VS STATE OF RAJASTHAN AND OTHERS

(15.01.2013 - RAJHC) : MANU/RH/0028/2013 (RAJASTHAN HC)

It is well settled legal position that if a person has been illegally or erroneously
released on bail under Section 167(2) Cr.P.C., his bail can be cancelled by appropriate
order under Section 439(2) Cr.P.C. as proviso to Section 167 Cr.P.C. itself clarifies that
every person released on bail under Section 167(2) Cr.P.C. shall be deemed to be so
released under Chapter-XXXIII Cr.P.C. The concept of setting aside unjustified, illegal
or perverse order is totally different from the concept of cancelling the bail on the
ground that the accused has misconducted himself or because of some new facts
requiring such cancellation. Under Section 439(2) Cr.P.C. the approach should be
whether the order granting bail was vitiated by any serious infirmity for which it is
right and proper for the High Court, in the interest of justice, to interfere. The power
vested in the High Court under Section 439(2) Cr.P.C. can be invoked either by the
State or by any aggrieved party. The said power could also be exercised suo-moto by
the High Court. It is always open to the High Court to cancel the bail if it feels that
there are sufficient and enough and reasons for doing so. The High Court being
superior Court in the hierarchy of Courts, can cancel even bail granted by the
Sessions Court under Section 439(2) Cr.P.C. and it is not necessary to first approach
the Sessions Court for its cancellation.

In the present case, as the learned Additional Sessions Judge wrongly invoked its
jurisdiction under Section 167(2) Cr.P.C. mis-calculating the period of 90 days and
illegally and erroneously released the respondent on bail vide order dated 5.1.2009, I
am of the considered view that it is a fit case in which the power conferred by Section
439(2) Cr.P.C. is to be suo-moto invoked and I hereby invoke that power.
Consequently, the application filed under Section 439(2) Cr.P.C. is allowed and the
order of bail passed in favour of the respondent is cancelled and he is directed to be
taken in custody.