Deciding Factors before Court grants Bail: Best Criminal Lawyer Advice

“Obtaining bail i.e. an anticipatory bail or a regular bail in a criminal case or criminal trial in a non-bailable offense is a very challenging task. There are several deciding factors for grant of Bail by the Court. There are different criminal dafenses available for different offenses and different grounds for bail for different offenses. Top ten deciding factors which the Court considers while granting bail to the alleged accused are discussed here in detail “

When a bail application is submitted by the accused in cases of non-bailable offence, the court have the discretionary power to grant bail to the accused or not. In Bailable offences it is the matter of right to be released on bail and in non-bailable offences it will be the discretion of the court to grant bail or not. Section 437 of Code of Criminal Procedure,1973 mentions the condition when a bail can be granted in cases of non-bailable offences. While adjudicating bail applications the court keeps in mind some factors that helps in deciding whether to grant bail to the accused or not. These are the deciding factors to be kept in mind while granting bail.

Deciding Factors before Court grants Bail: Best Criminal Lawyer Advice

1. Gravity of Alleged Offence- One of the parameters to keep in view while granting bail is the gravity of offense committed. Generally, if the offence committed is of grave nature, then the court hesitates to grant bail. In every case the first and foremost thing that the court considers while adjudicating bail application is the gravity of the alleged offence. The graveness of offence depends upon the facts and circumstances of the case. So, while granting bail the court always keeps in mind the graveness of the alleged offence.
2. Severity of Punishment which the Conviction will entail- Along with gravity of offence, seriousness of punishment which the conviction will entail is also a determining factor to grant bail or not. Offences that have punishment for life imprisonment extended to seven years or more and shall also be liable to fine or both are considered to be more serious punishment in nature. The court keeps in mind the severity of punishment in case of conviction.
3. Prima Facie Satisfaction of the Court in Support of the Charge- While granting bail the court keeps in mind that there is no reasonable ground for believing the case is of prima facie and the accused have committed the offence. But in case where it is prima facie that the accused have committed the offence then the court consider this fact and might deny to release the accused on bail.
4. Protection of Personal Liberty unless Detention became a Necessity- The Right to Bail ensures the fundamental right of personal liberty of accused enshrined under Article 21 of Indian Constitution. The object of bail is to secure the appearance of the accused. The object of bail is neither punitive nor preventive. Deprivation of liberty is considered as punishment and punishment starts after the conviction. Unless detention of accused became a necessity, the court protect the Right of Personal Liberty of accused. The court before granting bail consider the accused’s right of personal liberty.
5. Tampering with Evidences & Threat to Witnesses- The object behind the judicial custody of accused is that the accused do not tamper with the evidence or become threat to the witnesses. The court considers the reasonable apprehension that the accused might tamper with the evidence or apprehension of threat to the witnesses before granting bail.
6. Chargesheet already filed- In case the investigation is complete and chargesheet is already filed, then generally the court is of the opinion that it is meaningless to put a person behind the bars because then there is no chance of accused tampering with evidence and the accused would not be able to obstruct the investigation. So, if the investigation is already completed the court considers granting the bail to the accused.
7. Danger of the Accused Absconding or Fleeing, if released on Bail- The rationale behind putting a person in judicial custody is that so that the person does not flee away. So, if court is of view that the accused will not abscond then the court might grant bail and hence, it become the determining factor to be kept in mind while considering releasing the person on jail.
8. Likelihood of Offence being Repeated- While deciding to grant bail or not, the court keeps in mind that there shall be no threat to the society by the accused. It means by detaining the person the court makes sures that the accused do not commit further offence.
9. Character, Behaviour, Means, Position and Standing of the Accused- The court keep in mind the character, position and standing of the accused as if the accused is of such character that his mere presence at large would intimidate the witnesses or he have means to manipulate the witnesses or then court before granting bail consider this point.
10. Hardship caused to Individuals on Account of Detention before Conviction- In Indian Judicial System innocence of accused is presumed till the conviction. So, the court considers that the punishment shall be given after the conviction. The court is of the view that making the accused suffer before conviction is improper and consider the hardship that would be caused to the accused on account of detention before conviction.
11. The Protracted Nature of the Trial- When the nature of trial is protracted then, the chances of being granted the bail increases as there would be an unnecessary burden on the state to keep a person who is yet to be proved guilty. So, before granting bail the court looks into the nature of trial and this became the deciding factor whether to grant the bail or not.

 

Case Laws on Deciding Factors before Court grants Bail
Sanjay Chandra v. Central Bureau of Investigation [(2012)1 SCC 40]: The Hon’ble Supreme Court held that deprivation of liberty must be considered as punishment. Detention in custody pending completion of trial could be cause of great hardship and a person shall be only deprived of liberty when it is believed that the accused will surely tamper with evidence.

State of U.P. through CBI v. Amarmani Tripathy [Cri. Appeal No. 1249 of 2005]: The Hon’ble Supreme Court held some matters to be considered in an application for bail. That are (i) whether there is any reasonable ground or prima facie to believe that the accused had committed the offense; (ii) nature and gravity of charge; (iii) severity of punishment; (iv) danger of accuse fleeing; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of offence being repeated; (viii)reasonable apprehension of witness being tampered with.

Chaman Lal v. State of U.P. And Another [(2004)7 SCC 525]: In this case the guidelines were given by hon’ble Supreme Court that there is need to show prima facie why a bail is granted and what are the factors taken into consideration by court while granting bail. Further the Supreme Court had mentioned the ground for bail to be considered.

In non-bailable offences it is discretion of the court to grant bail or not but it does not mean that the court have absolute power to grant bail, there are some deciding factors that helps in deciding whether to grant bail to the accused or not. The Supreme Court have mentioned in its many judgements these deciding factors and have also cancelled the bail in some cases where the hon’ble Supreme Court have found the court using this discretionary power without keeping in mind these factors. These factors are important to keep in mind before granting bail so that there will be equilibrium between the accused’s right to be released on bail and his personal liberty as well as not compromising with the justice.
Authored By: Adv. Anant Sharma & Anjali Swami