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in Procedural Law
Asked August 13, 2017

Bail Petition at the High Court

  • 1 Answer

My brother has been sent to custody under Section 370 ipc and Section  3,4,5&7 of the ITP act as a customer. He is at the district court and the High Court has rejected his bail. Chargesheet has been filed. made can we directly file bail petion in high court....

Answer 1

Yes you can file a bail petition in High Court, Since the charges are non bailable in nature so there are chances that the bail may get rejected by the court. However even if it is rejected you can file bail petition again and again in the High Court based upon development of various stages of case as principle of Res Judicata is not applicable in criminal cases. For example if your bail petition gets rejected you can file another application if any of the co-accused gets bail.

If the charge sheet has been files by the police then there are more chances of bail being granted. As the bail normally is rejected during the investigation period because custody of the accused is required for investigation and there is a probability that if the accused is free on bail during investigation stage then he may tamper the case evidence or may influence the witnesses by threatening them. However, since the charge sheet has already been filed by police, these reasons are generally not applicable. As, after charge sheet is filed, the custody of your brother would not be needed for investigation purposes. Since the evidence would have already been collected by the police, chances of destruction or concealment of evidence by accused would be much less though chances of threatening witnesses may still be there to some extent.

The factors that can be taken into consideration for grant of bail are as follows:

  • The antecedents of the applicant including   the fact as to whether the  accused has   previously undergone imprisonment by conviction on Court in respect of any cognizable offence.
  • The possibility   of the applicant to flee from   justice.
  • The possibility  of the   accuser’s likelihood to repeat similar or   the other offences.

If there does not prevail any of the above possibilities then there arises no question of retaining a person in jail. At the time of entertaining bail application court should not go into the merits of the case. Court should take into  consideration  the gravity of the alleged offence, the deep roots of the accused in the society, the possibility of his appearing in the court during trial, the control of the surety over the accused and various other guidelines laid down by the Supreme Court in its judgements delivered from time to time.

The considerations which normally weigh with the court in granting bail in non-bailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case[1].

While granting bail the court has to consider the nature and gravity of the circumstances in which the offence is committed; the position and status of the accused with reference to the victim and witnesses; the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with the grim prospect of the possible conviction in the case, of tampering with a witness; the history of the case as well as of its investigation and other relevant grounds[2].


[1] Chenna Boyanna Krishna Yadav v. State of Maharashtra, (2007) 1 SCC 242 at p. 247 : (2007) 1 SCC (Cri) 329 : 2007 Cri LJ 782 : (2007) 50 AIC 637 (SC).

[2] Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143 at p. 148 : AIR 2005 SC 1299 : 2005 Cri LJ 1721 : 2005 SCC (Cri) 660.

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