High Court Can Cancel Bail Granted by Sessions Judge Where Witness-Tampering Risk Was Ignored: Supreme Court

The CBI registered an FIR on 10 June 1977 into the death of a man in police custody; the appellants, police officers from a Deputy Inspector General down to constables, were alleged to have conspired to kill him by drowning in the Yamuna in November 1976 (paras 1-2). After the Magistrate refused bail, the Sessions Judge released them in August 1977; a charge sheet under Section 120-B read with Section 302 IPC followed (paras 3-4). Six police eye witnesses had supported the accused in a preliminary inquiry but later implicated them under Section 164 CrPC, alleging pressure (para 7). On the Delhi Administration's application under Section 439(2), the High Court cancelled the bail on 19 September 1977 (paras 5, 9).

The Court rejected the argument that the new wording of Section 437(1), which excludes the High Court and the Court of Session, frees those courts from asking whether there are reasonable grounds to believe the accused guilty of an offence punishable with death or life imprisonment (para 11). Unlike Section 498(2) of the old Code, Section 439(2) lets the High Court commit to custody a person released on bail by any court, though a Court of Session "cannot cancel a bail which has already been granted by the High Court unless new circumstances arise" (para 12). The over-riding considerations in granting bail include the nature and gravity of the offence, the accused's position in relation to the victim and witnesses, the likelihood of flight, repetition of the offence, tampering with witnesses and the history of the case (para 19). Cancellation "is certainly different from admission to bail", and ordinarily the High Court will not interfere with a Sessions Judge's bail order (paras 20, 22). Here the Sessions Judge disposed of the tampering apprehension in a "very casual" manner and prematurely commented on the merits, when the only question was whether a prima facie case was made out (para 23).