AI Structured Summary
Not yet generated for this judgment
Judgment
Heard.
This petition is directed against the order dated 14.02.2026 passed by the learned Second Additional Sessions Judge, Pipariya, District Narmadapuram, whereby the application preferred by the applicant under Section 483(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "BNSS") seeking cancellation of the bail granted to respondent No.2 was dismissed. The applicant has, therefore, approached this Court praying for the following relief:-
"It is, therefore, prayed that this Hon'ble Court be kind enough to allow this application and set aside the order passed by the Learned Second District and Additional Sessions Judge vide order dated 14.02.2026 and also cancel the bail granted to respondent No.2 vide order dated 06.03.2025, in the interest of justice."
The facts, in brief, are that respondent No.2 was granted bail by the Court of Second Additional Sessions Judge, Pipariya, District Narmadapuram, vide order dated 06.03.2025 in connection with Crime No.188/2024 registered for offences punishable under Sections 294, 323, 324, 326 and 506 (Part-II) read with Section 34 of the Indian Penal Code. Sessions Trial No.50/2024, titled ‘State of Madhya Pradesh v. Rakesh Raghuwanshi and Others’, is pending before the Court of Second Additional Sessions Judge, Pipariya.
Thereafter, the applicant/complainant preferred an application under Section 483(3) of the BNSS before the learned Second Additional Sessions Judge, Pipariya seeking cancellation of the bail granted to respondent No.2. The learned Additional Sessions Judge, by the impugned order dated 14.02.2026, held that bail already granted can be cancelled only in compelling and extremely special circumstances and, finding no such circumstance, dismissed the application. Aggrieved by the said order, the present application has been filed before this Court.
Heard learned counsel for the applicant and learned counsel for respondent No.1/State. Despite service, none appears on behalf of respondent No.2.
Learned counsel for the applicant submits that respondent No.2 was granted bail on the ground of parity as the co-accused had already been enlarged on bail by this Court. It is further submitted that while granting bail, the learned trial Court imposed a specific condition restraining respondent No.2 from involving himself in any offence of a similar nature. However, after his release on bail, respondent No.2 allegedly committed offences of a similar nature, thereby violating the conditions of the bail order. It is, therefore, contended that such conduct constitutes a valid ground for cancellation of the bail granted in favour of respondent No.2.
The principal question which arises for consideration is whether the present application under Section 483(3) of the BNSS is maintainable after the applicant has already availed the remedy before the Court of Session and the application for cancellation of bail has been rejected by the learned Additional Sessions Judge.
Section 483(3) of the BNSS, which is analogous to Section 439(2) of the Code of Criminal Procedure, 1973 (in short “CrPC”), confers concurrent jurisdiction upon the High Court as well as the Court of Session to direct that any person released on bail be arrested and committed to custody. For ready reference, Section 483 of the BNSS reads as under:-
“483.(1) A High Court or Court of Session may direct,—
(a)that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b)that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(2)The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
(3)A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
The Supreme Court in Sandeep Jain v. National Capital Territory of Delhi, (2014) 16 SCC 263, observed that both the High Court and the Court of Session exercise concurrent jurisdiction under Section 439 of the CrPC. Likewise, in Kanumuri Raghurama Krishnam Raju v. State of Andhra Pradesh and Others, AIR 2021 SC 2827, the Apex Court held that merely because an accused approaches the High Court without first approaching the trial Court would not, by itself, preclude the High Court from considering the application on merits.
The Supreme Court in the case of Abhimanue Etc. Vs. State of Kerala, 2025 SC OnLine SC 2037 has expressed disagreement with the argument that once an application under Section 439(2), Cr.P.C. seeking cancellation of bail has been rejected by the Sessions Judge, a second application under the same provision cannot be filed directly before the High Court. Instead, the proper course would be either to challenge the Sessions Judge's order in a petition for revision, or to invoke the inherent powers of the High Court under Section 482, Cr.P.C. The Apex Court noted that when an application before the High Court has been filed under Section 482 r/w 439(2) of Cr.P.C., nothing prevented the High Court from exercising its inherent powers. The Supreme Court in the case of Abhimanue Etc. (supra) has observed as under:-
“17.Law is well settled that cancellation of bail is distinct from revocation of an order granting bail. Bail may be cancelled when the accused violates any of the conditions imposed. On the other hand, an order granting bail can be revoked if such an order is found to be perverse or illegal. In P v. State of Madhya Pradesh, (2022) 15 SCC 211, a three-judge Bench of this Court, after analyzing various previous decisions, discussed the distinction between the two. Relevant paragraphs of the decision are reproduced below:
21.Echoing the above principle, in Ranjit Singh v. State of M.P. [Ranjit Singh v. State of M.P., (2013) 16 SCC 797 : (2014) 6 CC (Cri) 405], it has been held thus:
“19.… There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.”
22.In Abdul Basit v. Mohd. Abdul Kadir Chaudhary [Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : 2015) 1 SCC (Cri) 257], this Court has opined that: (SCC p. 763, para 19) “19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court…..”
Likewise, the jurisdiction to grant anticipatory bail under Section 482 of the BNSS (analogous to Section 438 Cr.P.C.) is also concurrently vested in the High Court as well as the Court of Session. Section 482(1) provides that where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. Thus, Section 482 confers upon an applicant a choice of forum. Thus, it is clear that the provisions of Section 482 and 483 of the BNSS (analogous to 438 and 439 of Cr.P.C.) respectively conferred a concurrent jurisdiction upon the High Court and the Court of Session.
So far as the nature of the order passed under Sections 482 and 483 of BNSS (analogous to Section 438 and 439 of Cr.P.C.) is concerned, any order passed in exercise of the power confirmed under these sections is interlocutory in nature. This Court in the case of State of M.P. v. Nansingh and others, 1980 JLJ 505 has held as under:-
“10.It is no doubt true that granting of bail is an interlocutory order and a revision petition under Section 397 of the Code could not be entertained as sub-section (2) of that section provides that no revision petition will lie under that provision against an interlocutory order. It is also clear that an order granting bail is an interlocutory order but on that technical ground it could not be contended that this Court is powerless when apparently the order passed by the Chief Judicial Magistrate is absolutely without jurisdiction. This Court could cancel the bail on any of the grounds, even under Section 439((2) of the Code or also in exercise of inherent powers.”
The Supreme Court in the case of Usmanbhai Dawoodbhai Memon and others Vs. State of Gujrat, (1988) 2 SCC 271 had held that it cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. The High Court of Bombay in the case of Mohan @ Mannu Radhamal Basantani Vs. State of Maharashtra, 1988 Supreme (Bom) 336 by placing reliance in the case of Usmanbhai Dawoodbhai Memon (supra) has opined that the order granting or refusing bail is an interlocutory order and in view of sub-section (2) of Section 397 of CrPC the revisional powers could not be exercised in respect of such interlocutory orders.
Thus, it is clear that the order passed in exercise of the powers conferred under Section 439 (2) of Cr.P.C. are interlocutory in nature. Therefore, if any such order is passed by the Court of Session, the same cannot be challenged before the High Court by way of a revision petition under Section 438 of BNSS, as the powers of revision confirmed under Section 438 of BNSS cannot be exercised in relation to any interlocutory order. Therefore, an order rejecting application for cancellation of bail passed by the Court of session can be challenged and if so desired interfered with in exercise of inherent powers conferred upon the High Court under Section 528 of BNSS (analogous to Section 482 of Cr.P.C.)
It is the prevailing practice that an applicant ordinarily approaches the Court of Session in the first instance and, upon refusal, approaches the High Court, although there is no statutory embargo against directly invoking the jurisdiction of the High Court. Such a practice is founded on the proposition that for seeking any relief, the forum at the lowest rung in the hierarchy should ordinarily be approached first. In the case of Puran Vs. Rambilas and another, AIR 2001 SC 2023, the Supreme Court has opined as thus:-
“15….In the hierarchy of Courts, the High Court is the Superior Court. A restrictive interpretation which would have effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of Orders passed by the Court of Sessions. Of course cancellation of bail has to be on principles set out hereinabove and only in appropriate cases.
16.Further, even if it is an interlocutory order, the High Court's inherent jurisdiction under Section 482 is not affected by the provisions of Section 397 (3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified……”
From the aforesaid statutory provisions and the legal propositions laid down and also considering the prevailing practice based on the proposition that for seeking any relief, the forum at the lowest rung in the hierarchy should ordinarily be approached first, the following legal position emerges with regard to filing of application for cancellation of bail:-
The jurisdiction conferred upon the High Court and the Court of Session under Section 483(3) of the BNSS for cancellation of bail is concurrent and there is no statutory embargo against directly invoking jurisdiction of the High Court.
Nevertheless, judicial discipline requires that a litigant should ordinarily approach the forum lower in the hierarchy in the first instance. Thereby following practice may be adopted:-
Where bail has been granted by the Judicial Magistrate, an application for cancellation of bail should ordinarily be filed before the Court of Session.
Where such an application for cancellation of bail has been rejected by the Court of Session, the aggrieved party should ordinarily invoke the inherent jurisdiction of the High Court under Section 528 of the BNSS rather than filing another application under Section 483(3) of the BNSS seeking the same relief.
Where bail has been granted by the Court of Session and cancellation is sought on account of subsequent misuse of liberty, violation of bail conditions or subsequent conduct of the accused, so as to disentitle the accused to remain on bail, the application for cancellation should first be moved before the Court of Session which granted bail.
If such application is rejected by the Court of Session, the appropriate remedy would ordinarily be to invoke the inherent jurisdiction of the High Court under Section 528 of the BNSS.
However, where the order granting bail by the Court of Session itself is challenged on the ground of perversity or patent illegality, an application under Section 483(3) of the BNSS can be maintained directly before the High Court.
Needless to observe, where bail has been granted by the High Court, the Court of Session cannot entertain an application for cancellation of such bail, and the remedy lies only before the High Court.
It is equally well settled that the parameters governing rejection of bail and cancellation of bail already granted stand on different footings and must be examined accordingly.
In the present case, the applicant had already preferred an application under Section 483(3) of the BNSS before the learned Second Additional Sessions Judge, Pipariya, seeking cancellation of bail mainly on the ground that respondent No.2 had violated the conditions of bail by his subsequent conduct. The learned Additional Sessions Judge, by the impugned order dated 14.02.2026, rejected the application holding that no compelling or extremely special circumstances existed warranting cancellation of bail.
Instead of assailing the said order by invoking the inherent jurisdiction of this Court under Section 528 of the BNSS, the applicant has again filed the present application under Section 483(3) of the BNSS challenging the impugned order and seeking the very same relief which had already been declined by the Court of Session. Therefore, the application under Section 483(3) of BNSS does not deserve to be allowed so as to interfere with the impugned order dismissing the application under Section 483(3) of BNSS by the Second Additional Sessions Judge, Pipariya. However, the applicant shall be at liberty, if so advised, may take recourse under the law by invoking inherent jurisdiction of this Court.
Accordingly, the application stands dismissed.