Saturday, November 21, 2009

Cancellation of Bail

Cancellation of Bail by Supreme Court




i) Grant of Bail

PLD 1996 SC 241 (b)


ii) Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.

PLD 1995 SC 34 (e)



iii) The words used in Sec. 497(1) & Sec. 497(5) Cr. P.C. are different in as much as the word “shell” in Sec. 497(1) Cr. P.C & word ‘may’ in Sec. 497(5) Cr. P.C. The discretion left in the Court u/s. 497(5) Cr. P.C was pari materia with the principles which apply to the setting aside of the orders of acquittal.

1992 SCMR 1286



iv) The orders passed by High Court in the present case are not based on fanciful & arbitrary grounds.
1976 SCMR 286
1978 SCMR 346



I. GRANT OF BAIL: DISCRETION OF HIGH COURT

Supreme Court would not interfere in the discretion of High Court in Bail matter unless the order involves some violation of law.

PLD 1997 SC 545 (h)
1987 SCMR 432
2002 P Cr.L.J 1106: SC (A J & K)

Order of Bail passed in judicial discretion would not be interfered unless arbitrary or departed from settled principles of law.

PLD 1987 Sh. C (A J & K) 63
1987 SCMR 879

Proper exercise of discretion by High Court. Supreme Court would not interfere.

1986 SCMR 475/1978
1990 SCMR 270
NLR 1989 SCJ 330
1979 SCMR 523
1981 SCMR 860
1994 SCMR 1064
1996 SCMR 1685

Grant or refusal of bail by HC, purely discretionary; can not lightly be interfered with.

2000 SCMR 1438
PLJ 1979 SC 202
1979 SCMR 479/19
1980 SCMR 13


SC will not interfere in the case of bail unless circumstances are of exceptional character and refusal might entail risk of grave illegality or abuse of process or gross injustice

1979 SCMR 146

Supreme Court would not interfere with exercise of discretion unless:

i) Exercised not judicially
ii) Perverse
iii) Miscarriage of Justice would result

NLR 1980 SCJ 25
1981 SCMR 504
1981 SCMR 202/394/397/504
PLD 1986 SC (A J & K) 105/31
1986 SCMR 169
PLD 1988 SC (A J & K) 148
1979 SCMR 434
2001 P Cr. L.J 1059: SC (A J & K)
PLD 1963 SC 46
PLJ 1997 SC (A J & K) 37


Administration of justice: No exception can be taken to the exercise of discretion of High Court if no violation of Fundamental nature has taken place.

1979 SCMR 146
1980 SCMR 369
PLD 1981 SC (A K & K) 10
1981 SCMR 1216/397
1982 SCMR 894
PLD 1986 SC (A J & K) 105
1987 SCMR 432
1989 SCMR 1821
1995 SCMR 1249
2003 YLR 1309 : SC (A J & K)



II. Supreme Court would not interfere, where case is of further inquiry

1994 SCMR 454
2000 SCMR 161
2002 SCMR 1415
2003 P Cr. L.J 20: SC (A J & K)

III. No fundamental error of law or procedure was committed in granting the bail.

1979 SCMR 351/362/377
1981 SCMR 894
PLD 1988 SC (A J & K) 181



IV. Issue of Cancellation of Bail must come to an end at High Court level:

1989 SCMR 1388

V. Strong And Exceptional Grounds With Proof

Once bail is granted, the prosecution should make string case for cancellation by not making allegation alone but giving substantial proof.

1994 SCMR 1283

Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.

PLD 1995 SC 34 (e)
PLD 1996 SC 241
1996 SCMR 984
1997 SCMR 915
PLJ 1997 SC (A J & K) 349

Bail not cancelled on the statement of co-accused, where the prosecution does not show any piece of evidence directly or indirectly against the accused.

2001 SCMR 14

Bail could not be recalled in absence of cogent reason.

1979 SCMR 65


VI. MISUSE OF BAIL


Before cancellation of Bail, there should be a clear proof that privilege of bail was misused or abuse of freedom was made.

PLD 1994 SC 88
1993 SCMR 714
2004 SCMR 243
1981 SCMR 565
1985 SCMR 1528



VII. MALAFIDE

Bail will not be cancelled if the application for cancellation is

i. Mala Fide
ii. Frivolous
iii. Without any basis

1994 SCMR 1283

VIII. CIVIL SUIT IS PENDING BETWEEN THE PARTIES.

1982 SCMR 626
2001 SCMR 1412

IX. INSTANCES WHERE SC REFUSED TO CANCELL BAIL GRANTED BY
HC


Leave to appeal was refused, when bail was granted to Lady by HC in exercise of its discretion.

1999 SCMR 2622

Order granting bail does not suffer from any legal or factually infirmity.

1979 SCMR 91/438
1988 SCMR 1129
PLD 1988 SC (A J & K) 181/48
1986 SCMR 1843

Cancellation declined on the grounds of i) Old age, ii) Disease and ii) No misuse of bail privilege.

1988 SCMR 28
PLD 1983 SC 83
1987 SCMR 1522

SC declined to interfere where bail was granted on medical grounds by HC.

PLD 1966 SC 708
1981 SCMR 686


SC refused to set aside bail where without full examination of evidence is required to ascertain whether accused was falsely implicated.

1986 SCMR 1387




No overt act is attributed to accused.

1978 SCMR 32

No overt act by accused, they could not be saddled with vicarious liability

2001 P Cr.L.J 1973: SC (A J & K)

Allegations were not substantiated in investigation.

2000 SCMR 1074

Grounds for cancellation of bail already taken into account and rejected. Leave to appeal was refused.

1979 SCMR 479
1982 SCMR 205
1987 SCMR 1879

Accused if powerful, bad relations of complainant and accused or accused not surrendering to police are not consideration for setting the bail aside.

1979 SCMR 119


Cancellation of bail refused where the name of accused appear in column 2 of the Challan.

1982 SCMR 440
1984 SCMR 1378

Accused not named in F.I.R and no Identification Parade was held.

2002 SCMR 1304

After careful examination of facts HC granted bail since opposite party was already allowed bail in the counter case

2002 SCMR 201

Cancellation of bail sought on ground that accused was threatening witnesses with dire consequences- no ground for cancellation

NLR 1980 SCJ 126


SC finds no reason for canceling the bail, where the case was fixed for arguments or trial is to be commenced soon.

1989 SCMR 520
1988 SCMR 1129
PLD 1989 SC 585

Where the defense version was still to be investigated.

1989 SCMR 2028

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