The grant of bail engages the constitutional value of personal liberty under Article 21 of the Constitution of India, but that liberty is balanced against the need to ensure a fair trial and the proper administration of justice. In that context, the law draws a clear distinction between a challenge to an order granting bail and cancellation of bail after release.

Under the Code of Criminal Procedure, 1973, Sections 437(5) and 439(2) empower the competent court to direct that a person released on bail be arrested and committed to custody. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the corresponding provisions are Sections 480(5) and 483(3). The distinction, however, is not merely one of statutory source, but of the grounds on which interference is sought.

A challenge to the grant of bail is directed to the legality and propriety of the order itself. The court examines whether the discretion to grant bail was exercised in an improper or arbitrary manner, whether relevant considerations were ignored, whether irrelevant considerations were taken into account, or whether the order is perverse, illegal or unjustified. This principle is reflected in Puran v. Rambilas & Anr., (2001) 6 SCC 338, where the Supreme Court observed that setting aside an unjustified, illegal or perverse order granting bail is “totally different” from cancelling bail on account of subsequent misconduct or supervening circumstances. The same position was restated in Mahipal v. Rajesh Kumar alias Polia & Anr., (2020) 2 SCC 118, where the Court held that the test is whether there has been an improper or arbitrary exercise of discretion in the grant of bail.

The considerations relevant to such scrutiny have also been explained in State through C.B.I. v. Amarmani Tripathi, (2005) 8 SCC 21, where the Supreme Court identified factors such as the nature of the accusation, the severity of punishment in the event of conviction, the character of the evidence, the position and standing of the accused, the likelihood of the accused fleeing from justice, and the possibility of tampering with witnesses. More recently, in Deepak Yadav v. State of Uttar Pradesh and Another, (2022) 8 SCC 559, the Supreme Court reiterated that an order granting bail must reflect due application of mind, and that a mechanical recital that the court has “perused the record” is not enough where the order does not disclose consideration of the relevant circumstances.

Cancellation of bail, in the narrower sense, proceeds on a different basis. It ordinarily assumes that the original order granting bail is not under challenge for its legality, but that subsequent conduct or events have rendered the continuance of bail inappropriate. In Dolat Ram & Ors. v. State of Haryana, (1995) 1 SCC 349, the Supreme Court held that “very cogent and overwhelming circumstances” are necessary for cancellation of bail already granted. The recognised grounds include interference with the due course of justice, abuse of the concession of bail, attempts to tamper with evidence or influence witnesses, evasion of the process of law, or other supervening circumstances showing that it is no longer conducive to a fair trial to allow the accused to remain on bail. The same distinction was recognised earlier in State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411, where the Court made it clear that rejection of bail at the threshold and cancellation of bail already granted are not to be treated alike.

This position was reaffirmed in Ms. P. v. State of Madhya Pradesh & Anr., (2022) 15 SCC 211, where the Supreme Court drew the distinction between a challenge to the correctness of an order granting bail and cancellation founded on subsequent events. The Court noted that, in an application for cancellation, the court ordinarily looks for supervening circumstances or post-bail conduct showing that the accused has misused the liberty granted.

A challenge to the grant of bail is therefore concerned with the correctness of the order as originally made. Cancellation of bail, in the ordinary course, is concerned with whether subsequent conduct or supervening circumstances have made continued liberty incompatible with the fair administration of justice.

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