Can magistrate cancel the bail in bailable offence under section 436 of the code of criminal procedure? A bail was granted by the magistrate under section 436 crpc but after two months he cancelled that bail. That bail has been cancelled on the basis that the accused is not cooperating in the investigation. The investigating officer moved an application to the magistrate under section 436 crpc for the cancellation of bail. My brother is cooperating in the investigation but the I.O. is trying to add additional sections and enhance the gravity of offence. He is managed by the compliant. There is no fault from my brother. I received an arrest warrant from the court and consulted an advocate who advised that bail cancellation is wrong. Court has no such power.
Asked from: Haryana
The Magistrate does not have the power under Section 436 of the Code of Criminal Procedure, 1973 (CrPC) or Section 478 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) to cancel bail granted in a bailable offence. In cases involving bailable offences, the grant of bail is a statutory right of the accused, and the Magistrate has no discretion to refuse it when the accused is ready and willing to furnish the required bail or surety.
If the Investigating Officer or the prosecution has sufficient grounds for seeking cancellation of bail, they must file an application under Section 439 CrPC or Section 483 BNSS, as only the Court of Sessions or the High Court is empowered to cancel bail—even in cases involving bailable offences. Therefore, any order passed by the Magistrate cancelling bail in a bailable offence is per se illegal and without jurisdiction.
You are advised to file a criminal revision petition either before the Sessions Court or the High Court under Section 397 CrPC or Section 438 BNSS, challenging the impugned cancellation order. The revisional court will have the authority to set aside the Magistrate’s order and restore the bail granted earlier, as per law. Magistrate cannot cancel the bail in bailable offence.
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