Special Powers of High Courts and Sessions Courts Regarding Bail and Cancellation of Bail

Section 439 of the Code of Criminal Procedure confers special powers on High Courts and Sessions Courts to direct –

(a) That any person accused of any offence and in custody be released on bail; and

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(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.


However, in the case of a person who is accused of an offence,-

(i) Which is triable exclusively by a Trial Court, or

(ii) Which though not so triable, is punishable with life imprisonment, the High Court or the Sessions Court must, before granting bail, give notice of the bail-application to the Public Prosecutor, unless the Court is of the opinion, for reasons to be recorded by it, that it is not practicable to give such notice?

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Although there was no express provision in the old Code authorising a High Court to cancel a bail even in the case of a bailable offence, the existence of this power was recognised by the Supreme Court in Talib’s case (A.I.R. 1958 S.C. 376), where the absence of an express provision to this effect was described as a “lacuna”. Therefore, S. 439 now expressly provides that a High Court or a Sessions Court may direct that any person who has been released on bail under this Chapter be arrested and committed to custody.

It will be seen that no fetter is put on the powers of the Sessions Court to cancel the bail order by S. 439. It is not necessary that some new events should take place subsequent to the offender’s release on bail for the Sessions Judge to cancel his bail. Thus, it has been held that bail obtained by hoodwinking the Magistrate ought to be cancelled. In fact, refusal to cancel bail in such a case would amount to a failure to exercise jurisdiction. (Hirasingh,—1977 Cr. L.J. 104)

In Sanjay Gandhi’s case, the Supreme Court, whilst cancelling the anticipatory bail of the accused for abusing his liberty by attempting to suborn prosecution witnesses, observed that the Court’s power of cancelling bail has to be exercised with care and circumspection. However, this extraordinary power should be exercised when it is clear that the accused is interfering with the course of justice by tampering with the witnesses.

Considering the Scope of S. 439, the Supreme Court has observed that the Court should be satisfied only about a prima facie case, and need not go into the merits of the matter. When the accused are policemen, the Court should also keep in mind the possibility of intimidation of witnesses and tampering with the documents by such accused persons. (Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 S.C.C. 559).


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