Rajasthan HC Dismisses State's Bid to Cancel Bail of Ex-SHO in NDPS Case, Calls Application Misconceived

Justice Ashok Kumar Jain held that the State cannot invoke Section 439(2) CrPC to correct a coordinate bench's bail order it disagrees with, absent post-bail misconduct.

The Rajasthan High Court at Jodhpur has dismissed a bail cancellation application filed by the State of Rajasthan against Smt. Seema Jakhar, a former Station House Officer (SHO) accused in an NDPS case. Justice Ashok Kumar Jain, sitting singly, found the application not only misconceived but also lacking in merit. The State's sole grievance was that a coordinate bench had erred in granting bail by considering only the offence under Section 221 of the IPC rather than the graver charges under the NDPS Act. The court held that this is not a ground for cancellation of bail under Section 439(2) of the CrPC, and that it cannot sit as an appellate court over a coordinate bench's order.

The Dispute Before the High Court

FIR No. 143/2021 was registered at Police Station Barloot, District Sirohi, against Seema Jakhar and others for offences under Sections 8/15, 29, 27A and 59 of the NDPS Act. The prosecution's case was that on 14 November 2021, at 7:25 PM, two persons — Ramesh Kumar and Dinesh Kumar — were intercepted by police while travelling in a car and found in possession of 141 kilograms of poppy straw. Jakhar, who was posted as SHO at Police Station Barloot at the time, is alleged to have accepted illegal gratification of Rs. 10 lakhs offered by co-accused Hemaram and Ashok, manipulated the investigation, released the two persons, and made false entries in the Rajnamcha recording that the persons carrying the poppy straw had fled.

Jakhar was taken into custody and remained behind bars from 26 June 2022. A coordinate bench of the same court granted her bail on 20 July 2022 in S.B. Criminal Misc. Bail Application No. 8986/2022. The State then filed S.B. Criminal Bail Cancellation Application No. 75/2024 under Section 439(2) of the CrPC seeking recall of that order.

How the Coordinate Bench Had Reasoned

The coordinate bench's bail order of 20 July 2022 rested on a specific finding: the offence alleged against Jakhar was under Section 221 of the IPC, which is punishable with imprisonment for a term of three years with or without fine. On that basis, the bench accepted the bail application under Section 439 of the CrPC. The bench had also noted that Jakhar was a public servant with no apprehension of absconding, that no money had been recovered from her possession, that co-accused Hemaram had already been enlarged on bail by a coordinate bench on 15 February 2022, and that investigation and trial were likely to take considerable time.

The State's objection before Justice Jain was that the coordinate bench had failed to consider the gravity and seriousness of the charges under the NDPS Act — specifically Sections 8/15, 29, 27A and 59 — and had instead confined its analysis to the Section 221 IPC charge, which carries a lighter sentence.

The Legal Framework on Bail Cancellation

Justice Jain drew on the Supreme Court's recent decision in Abhimanyu Etc. v. State of Kerala, reported as 2025 INSC 1136, to set out the governing principles. That judgment drew a clear line between two distinct concepts: cancellation of bail on account of post-bail conduct, and revocation of a bail order that is perverse or illegal.

The court reproduced the Supreme Court's formulation that bail may be cancelled when an accused violates conditions imposed, whereas an order granting bail can be revoked only if it is found to be perverse or illegal. The illustrative grounds for cancellation enumerated in Abhimanyu include misuse of liberty by indulging in similar or other criminal activity, interference with the course of investigation, tampering with evidence, influencing or threatening witnesses, evading court proceedings, attempting to flee the country, or going underground. The Supreme Court had also cautioned in that case that the principle of “bail being the rule and jail an exception” cannot be ignored, and that taking an accused back into custody for no better reason than that the sessions court should not have been swayed by the public prosecutor's omission should not operate to the accused's prejudice.

Justice Jain also referred to Gurucharan Singh & Ors. v. State (Delhi Administration), AIR 1978 SC 179, where the Supreme Court held that cancellation of bail is a harsh step requiring strong and cogent evidence of wrongdoing, and that bail once granted cannot be cancelled in a mechanical manner or merely because the offence is serious.

The court further cited Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, for the proposition that there is a difference between the yardstick for cancellation of bail and an appeal against an order granting bail. Grounds for cancellation ordinarily relate to interference with the administration of justice, evasion of justice, or abuse of the concession granted. The court also noted Abdul Basit @ Raju & Ors. v. Mohammad Abdul Kadim Chaudhary, (2014) 10 SCC 754, which illustrated that grounds for cancellation are in fact post-bail events. Additionally, Justice Jain referred to the Supreme Court's recent consideration of bail cancellation principles in State of Karnataka v. Sri Darshan Etc., 2025 INSC 979.

Why the State's Application Failed

Applying these principles, Justice Jain found that the State had raised only one ground: that the coordinate bench had not considered the gravity of the charge. There was no allegation that Jakhar had misused her liberty after bail, tampered with evidence, influenced witnesses, or committed any of the other post-bail acts that would justify cancellation.

The court observed that the coordinate bench's order itself indicated that it had considered the offence committed by Jakhar and found it to fall within the purview of Section 221 of the IPC. Whether that assessment was correct or not, the present court was not sitting as an appellate court over a coordinate bench. The application, in the court's view, was effectively an attempt by the State to re-argue the bail application before a different bench of the same court — a course not available under Section 439(2) of the CrPC.

Justice Jain also addressed the respondent's argument that Jakhar, being a female, was entitled to bail. Section 437(1) of the CrPC provides that a court may direct release on bail if the person is under the age of 16 years, or is a woman, or is sick or infirm. The court referred to the Supreme Court's decision in Kalvakuntla Kavitha v. Directorate of Enforcement, 2024 INSC 632, which considered the grant of bail on the ground that the accused is a female under Section 45(1) of the PMLA Act. That judgment, referring to Saumya Chaurasia v. Directorate of Enforcement, 2023 INSC 1073, observed that persons of tender age and women who are likely to be more vulnerable may sometimes be misused by unscrupulous elements and made scapegoats for committing such crimes.

The court also took note of the fact that the bail order had been passed on 20 July 2022 and that almost four years had elapsed since then without any allegation of misconduct by Jakhar during the period of bail. The respondent's counsel had specifically pressed this point in opposition to the cancellation application.

Justice Jain concluded that the State should have taken proper legal advice before filing the application under Section 439(2) of the CrPC for recalling or cancelling bail granted by a coordinate bench. The application was described as not only misconceived but also lacking in merit.

Order

S.B. Criminal Bail Cancellation Application No. 75/2024 was dismissed. The bail granted to Smt. Seema Jakhar by the coordinate bench on 20 July 2022 stands.