Refining the Distinction between “Setting-Aside” and “Cancellation” of Bail – A Commentary on Ashok Dhankad v. State (NCT of Delhi) (2025 INSC 974)

Introduction

The Supreme Court’s decision in Ashok Dhankad v. State NCT of Delhi revisits the delicate equilibrium between the constitutional mandate of personal liberty and the societal imperative of maintaining the integrity of criminal proceedings.

The litigation arose from a brutal incident at Delhi’s Chhatrasal Stadium in May 2021, where internationally–acclaimed wrestler Sushil Kumar (Respondent No. 2 before the Supreme Court) and twenty-one associates allegedly abducted and assaulted six men, resulting in one death. The Delhi High Court granted Kumar regular bail in March 2025. The complainant, Ashok Dhankad (father of the deceased), supported by the State, challenged that order before the Supreme Court.

Central to the appeal was the jurisprudential line dividing two concepts often conflated in practice: (i) setting aside an erroneous grant of bail, and (ii) cancelling bail for misconduct or supervening events post-release. The judgment crystallises the tests applicable to each, supplies a structured checklist for appellate courts, and ultimately directs the accused to surrender within a week.

Summary of the Judgment

The Court (Karol J. & Mishra J.) allowed the complainant’s appeal, quashed the High Court’s bail order, and ordered the accused to surrender.
Key deficiencies in the High Court’s reasoning included its failure to consider:
- the accused’s abscondence and issuance of non-bailable warrants/reward notices;
- the egregious nature of the offences (abduction, murder, arms use);
- the demonstrable pattern of prosecution witnesses turning hostile whenever the accused was out on temporary bail;
- the accused’s social influence as an Olympian capable of intimidating witnesses.
The Supreme Court distilled six guiding principles for appellate scrutiny of bail orders and reaffirmed that an appeal against the grant of bail is conceptually distinct from an application for cancellation of bail.

Analysis

Precedents Cited and their Influence

Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) – reaffirmed liberty vis-à-vis non-bailable offences and the need for a prima facie prosecutorial case.
Sanjay Chandra v. CBI (2012) & Vinod Bhandari v. State of M.P. (2015) – emphasised proportionality and reasoned discretion in bail matters.
Jayaben v. Tejas Kanubhai Zala (2022) – drew a bright line between setting-aside and cancellation; heavily relied upon.
Y v. State of Rajasthan (2022) – laid the quartet of grounds (illegality, perversity, arbitrariness, reliance on irrelevant material) for impeaching an order granting bail.
Meena Devi v. State of U.P. (2022) – contrasted the “improper exercise of discretion” test with the “supervening circumstances” test.
State of Rajasthan v. Indraj Singh (2025) & AJWAR v. WASEEM (2024) – offered a consolidated checklist of factors (gravity, antecedents, flight risk, witness tampering, etc.).
Bhagwan Singh v. Dilip Kumar (2023) – cautioned courts to account for an accused’s societal influence.

These authorities provided the normative scaffold on which the Court mounted its critique of the High Court’s “selective appraisal” of facts.

Legal Reasoning of the Supreme Court

Conceptual Clarification: The Court begins by demarcating the two bail-related remedies. An appeal against grant scrutinises the order itself, whereas cancellation focuses on post-release conduct. Mixing the two leads to doctrinal confusion.
Six-fold Principles: Paragraph 19 distils six principles—effectively codifying the grounds on which an appellate court may set aside bail. These now serve as a near-prescriptive framework.
Application to Facts: Deploying the framework, the Court finds:
- Perversity/Illegality – High Court ignored the accused’s deliberate evasion of arrest and the issuance of NBWs/reward.
- Non-consideration of gravity – The offences involve abduction, fatal assault, and firearms.
- Plausible threat to witnesses – 28 of 35 examined witnesses turned hostile; complaints of intimidation lodged.
- Influence – The accused’s public stature heightens the risk of trial interference.
Minimal Merits Assessment: Consistent with precedent, the Court refrains from microscopic evaluation of evidence, noting that authenticity of videos, etc., “is a matter of trial.”
Procedural Direction: The accused may apply afresh for bail if circumstances materially change, reinforcing that liberty is not extinguished but postponed.

Potential Impact

Elevated Scrutiny of Bail Orders: High Courts will now be expected to expressly deal with each relevant factor; failure may invite swift appellate correction.
Witness Protection Emphasis: The decision foregrounds the empirical correlation between temporary bail and hostile witnesses, likely spurring tighter safeguards in serious offences.
Operationalising the Bharatiya Nagarik Suraksha Sanhita (2023): The case, though rooted in IPC offences, is among the earliest Supreme Court rulings assessing bail under the new Section 483 BNSS, thereby giving interpretative guidance for future BNSS bail adjudication.
Recalibration of Celebrity Accused Jurisprudence: Courts may more readily factor public influence into the “possibility of tampering” assessment when dealing with high-profile individuals.
Doctrinal Consolidation: By collating scattered dicta into an articulated six-point test, the ruling provides a stable template for bar and bench alike.

Complex Concepts Simplified

Bail: Conditional release of an accused from custody, premised on the promise to appear for trial.
Setting-Aside vs Cancellation of Bail:
- Setting-Aside: Appellate review of an initial grant of bail; looks backward at whether the judge misapplied the law or ignored vital facts.
- Cancellation: Revocation of bail due to events after release—e.g., violation of conditions, fresh offences, witness intimidation.
Abscondence: Deliberate evasion of lawful arrest; courts treat it as indicative of flight risk.
Non-Bailable Warrant (NBW): A judicial command to arrest an accused who cannot claim bail as of right; signals gravity and urgency.
Prima Facie Case: An initial, surface-level showing by the prosecution that, if unrebutted, would justify conviction; deeper proof awaits trial.
Hostile Witness: A prosecution witness who contradicts prior statements, often signalling intimidation or inducement.

Conclusion

The Supreme Court’s ruling in Ashok Dhankad is more than a case-specific correction; it is a blueprint for structured appellate review of bail orders. By isolating the doctrinal core—the difference between scrutinising an order and punishing post-order conduct—the Court fortifies principles that safeguard both personal liberty and the administration of justice. Trial courts and High Courts are now on explicit notice that perfunctory or one-sided bail orders will not withstand appellate scrutiny, particularly where serious violent offences, flight risk, and witness intimidation intersect.

In the broader legal canvas, the judgment advances India’s bail jurisprudence toward transparency, consistency, and victim-sensitivity, while still preserving the presumption of innocence through the avenue of a fresh bail application should circumstances genuinely evolve.