Bail cancellation not appellate remedy: Rajasthan High Court refuses to disturb SHO’s bail in NDPS bribery case

Jodhpur: The Rajasthan High Court has dismissed an application filed by the State of Rajasthan seeking cancellation of bail granted to a former Station House Officer accused of accepting an illegal gratification of ₹10 lakhs to scuttle an investigation in a 141-kg poppy straw recovery case, holding that a co-ordinate bench order cannot be revisited under Section 439(2) CrPC merely because the State now contends that the gravity of the offence was not properly weighed.

Justice Ashok Kumar Jain observed that the High Court, while deciding a cancellation application under Section 439(2) CrPC, is not sitting as an appellate court to second-guess a bail order passed by another co-ordinate bench, and that bail once granted can be cancelled only where the accused has misused liberty, tampered with evidence, influenced witnesses, or where supervening circumstances make the continuance of bail incompatible with a fair trial.

The Court observed: “This Court is not sitting as an Appellate Court to judge the bail order passed by another Co-ordinate Bench.”

The application under Section 439(2) CrPC was directed against an order dated 20.07.2022 passed by a co-ordinate bench in S.B. Criminal Misc. Bail Application No. 8986/2022, by which the respondent Smt. Seema Jakhar was enlarged on bail in FIR No. 143/2021 registered at police station Barloot, District Sirohi, for offences under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the prosecution case, on 14.11.2021 at 7:25 PM, two persons — Ramesh Kumar and Dinesh Kumar — were intercepted by the police while travelling in a car, and on search were found in possession of 141 kgs of poppy straw. The respondent, who was then posted as SHO Police Station Barloot, was alleged to have accepted illegal gratification of ₹10 lakhs paid by co-accused Hemaram and Ashok, diluted the investigation, allowed the persons to go free, and made false entries in the Rajnamcha to the effect that the persons carrying poppy straw had run away. The co-ordinate bench had granted bail on the view that the offence against her, on the existing material, fell within Section 221 IPC, punishable with imprisonment for a term of three years.

Appearing for the State, the Public Prosecutor submitted that the co-ordinate bench had failed to consider the gravity and seriousness of the offence, and that on the prosecution material the respondent was liable for offences under Sections 8/15, 29, 27A and 59 of the NDPS Act. It was urged that the bail order be recalled. Counsel for the respondent opposed the application, contending that the respondent was a female, that the bail order dated 20.07.2022 had stood for nearly four years, and that there was no ground for recall or cancellation.

The Court made reference to the recent decision in Abhimanyu Etc. v. State of Kerala, 2025 INSC 1136, in which the Supreme Court reiterated the settled distinction between cancellation of bail and revocation of an order granting bail. Cancellation, the Court noted, becomes available where the accused violates conditions of bail or where supervening circumstances arise, while an order granting bail can be set aside only on the limited ground that it is illegal, perverse or based on irrelevant material, and only by a court superior to the one which granted the bail.

Quoting the Apex Court, the bench reproduced the following passage:

“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.”

The Court further relied on Gurucharan Singh v. State (Delhi Administration), AIR 1978 SC 179, where the Supreme Court, considering Section 439(2) CrPC, 1973, held that cancellation of bail is a harsh step requiring strong and cogent evidence of wrongdoing, and that bail once granted cannot be cancelled mechanically or merely because the offence is serious. Reference was also made to Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, and Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754, both of which mark the grounds for cancellation as post-bail events going to interference with the administration of justice, evasion, or abuse of the concession granted to the accused.

On the further ground that the respondent is a woman, the Court referred to Section 437(1) CrPC, which permits release on bail where the accused is below 16 years, a woman, or sick or infirm, and to Kalvakuntla Kavitha v. Directorate of Enforcement, 2024 INSC 632, which considered bail for a female accused under Section 45(1) PMLA. In Kalvakuntla, the Supreme Court, while invoking Saumya Chaurasia v. Directorate of Enforcement, 2023 INSC 1073, observed that persons of tender age and women, being more vulnerable, may sometimes be misused by unscrupulous elements and made scapegoats for committing such crimes.

Holding that the State’s grounds went only to the alleged failure of the co-ordinate bench to consider the gravity of the charge, and noting that the bail order itself recorded that the offence on the existing material fell within Section 221 IPC, the Court remarked that the application had been filed only on the basis that there was an error on the part of the co-ordinate bench, which was not a ground available under Section 439(2) CrPC.

The Court observed: “The state should have taken a proper legal advise before filing instant application under Section 439(2) of Cr.P.C. for recalling/cancellation of bail granted by a Co-ordinate Bench. The application filed by the State is not only misconceived but it lacks the merit, therefore, same is liable to be dismissed.”

Accordingly, S.B. Criminal Bail Cancellation Application No. 75/2024 was dismissed.

Title: State of Rajasthan v Smt. Seema Jakhar

Case No.: S.B. Criminal Bail Cancellation Application No. 75/2024

Citation: [2026:RJ-JD:23215]

Counsel for petitioner: Mr. Neeraj Kumar Gurjar; Mr. Lalit Kishor Sen, Public Prosecutor

Counsel for respondent: Mr. Bhirendra Singh with Ms. Priyanka Borana