Review of Bail Order by Different Bench

The Supreme Court recently quashed an order of the Madhya Pradesh High Court which had cancelled a bail order granted by another bench of the same High Court. The Supreme Court observed that the current judgement was legally improper. 

In this Weekly, let us  understand more about what a bail order is and how it can be reversed. Read our Weekly to find out these answers. 

 What is bail?

Bail is the temporary release of an accused from police or judicial custody, subject to certain conditions. Bail does not mean that the accused has been acquitted. Simply, the accused is allowed to remain outside but must cooperate with the law enforcement bodies and appear before the court as and when ordered. 

Through a bail order, a Court permits the release of an accused from custody subject to certain conditions like the deposit of a sum of money or property to the Court as a guarantee etc. 

Who can apply for bail?

Every citizen in India has the right to bail. In the case of bailable offences, this can be directly exercised whereas in the case of non bailable offences, an application must be made before the Court. The Allahabad High Court in the Arvind Singh vs. State Of U.P. Thru. Secy. Home Deptt.(2023) case had affirmed that the right to apply for bail is a fundamental right guaranteed under the right to personal liberty enshrined in Article 21 of the Indian Constitution. 

Can an order of bail be cancelled?

Section 439(2) of the Code of Criminal Procedure, 1973 empowers High Courts and Sessions Courts to order the cancellation of bail and have the accused arrested again if it deems it necessary. The Supreme Court in Abdul Basit Alias Raju and Ors. v. Mohd. Abdul Kadir Chowdhury and Anr. (2014) had specified that a bail order can be cancelled on the following grounds:

• misuses the liberty by indulging in similar criminal activity, 
• interferes with the course of investigation, 
• attempts to tamper with evidence of witnesses, 
• threatens witnesses or indulges in similar activities which would hamper smooth investigation, 
• attempts to flee to another country, 
• attempts to go underground or become unavailable to the investigating agency, 
• makes  themselves unreachable even by their surety.

Who can cancel a bail order?

CrPC enables the High Courts and Sessions Courts to cancel a bail order, but the authority to reverse an order comes from the judicial hierarchy in the Indian legal system. It is an established principle that an order of a lower court can only be reviewed by a higher Court. Section 362 prohibits the same court from altering or reviewing an order once it has disposed of the case, except for clerical or arithmetical errors. 

So, a bail order of a Sessions Court can only be reversed by the High Court. If a High Court passes a bail order, then either a larger bench of the High Court or the Supreme Court can review the order. This is applicable only if the bail order is challenged on the grounds of merit. 

However, if it is proven that since the time of the grant of bail, certain new circumstances have arisen or any of the conditions of bail has not been complied with, then the same Court can cancel the bail order. 

What has the Supreme Court specified in the current instance?

In the current instance, the challenge to a bail order passed by a single judge bench of the High Court was listed before another single judge bench of the same High Court. The challenge was on grounds of merits of the bail order and not non-compliance with bail conditions or for new facts. The latter bench reversed the bail order, which the Supreme Court held as grossly improper. While quashing the cancellation of bail, the Supreme Court reiterated that the same court cannot reverse an order passed by itself  except for certain instances.