• How would my husband get bail in IPC 302

Hello sir. In coming July it would be 1 year , my husband is in TJ. In 2015 , my father in law has got shot by a person lived in neighbourhood. That person actually wanted to kill my husband but somehow he did shoot his father.my husband was not at home by that time. We got that video clip as well where it's clearly can be seen that he shot his father. And this news was so highlighted in media, can be seen on YouTube as well if you just search by 'shoot in Tilak Nagar for car parking' that guy named 'binny' is clearly mentioned. After this incident , that person has surrendered himself and sent to TJ , my father in law has recovered somehow, he can walk and talk but still not so well. his voice is almost gone he can't speak clearly, that bullet is still stucked in his body, binny got a bail after 1year & 6months. And again he started to follow my husband routines and noticing his shift timings, he also spoke to his couple of friends n told them to leave my husband side and be with himself (binny) & he paid money to many people who were in my husband's contacts to help him(binny) to kill my husband. And one day he made a fielding with his couple of friends on the same street where mostly my husband used to go out for work. He carried a local pistol(desi Katta) unlicensed. And started a fight over there, and all his friends made a circle around my husband to kill him .somehow my husband took (snatched) pistol from his hand he fired in his stomach and ran away.(but his intention was just to protect himself not to kill him) After 10days my husband has surrendered himself in Tilak Nagar police stn. And sent to TJ. It all happened in July 2017. My husband got ipc 307 for this. That guy (binny) survived for 6months and then died in Dec.2017. and now my husband got ipc 302. And there is no proof or witness against my husband. Because everybody knows the truth what all happened. Now we know all he did this for his self defence. We have got 1 year old kid. Is there any way to take him out on bail?? There is an advocate with us who is asking 6-8lacs for bailing purpose. So is it the only way to take him out? Or any idea ,on this case what we can do best about it??? please let me know further..
Asked 4 years ago in Criminal Law
Religion: Sikh

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11 Answers

According to the right of private defence sections 96 and 97 of the Indian Penal Code, nothing is an offence which is done in the exercise of the right of private defence.

The right given under (IPC) sections 96 to 98 and 100 to 106 is controlled by Section 99

According to the right of private defence of the body and of property, every person has a right (subject to the restrictions contained in Section 99) to defend his own body or that of any other person or against any offence affecting the human body.

Examples where you can exercise right to self defense-

For protecting your propertyReasonable apprehension of disfiguring with acid attackDuring a Kidnapping AttemptDuring a Rape Attempt

Supreme Court on the issue of killing someone in self defense -

There has to be reasonable apprehension

A person can kill one under the right of self-defence only on reasonable apprehensions of threat to his own life from the offender, the Supreme Court has ruled.

The injury which is inflicted by a person exercising the right should be commensurate with the injury with which he is threatened.

Reasonable cause to fear

Right of private defence cannot be used to do away with a wrong doer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of the right to private defence.

To plead a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him," said Justice Radhakrishnan, writing the judgement for the bench.

The apex court gave the ruling while disposing of an appeal by one Arjun who had challenged his conviction by the trial court for a murder with the Bombay High Court affirming it.

Section 99 of the IPC explains that the injury which is inflicted by a person exercising the right should be commensurate with the injury with which he is threatened.

The accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

Hi, we should file a application for regular bail in session court , there are chances of getting bail since he has been in custody for a long period of time ..you can contact me in person for proceeding further with your case ..thank you

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1) lawyer is demanding exhoribtant amount to fight your husband case for bail

2) your husband should apply for bail before sessions court

3) if bail application is rejected then appeal to HC

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Mam,

For bail in the case of murder the cout sees some of the areas as the chargesheet, investigation, statements recorded. If these all things state that it was an act in self defence , illegal weapon belonged to the deceased himself than the court shall grant the bail.

First the bail has to be filed with sessions court.in case sessions refuses bail move to high court.

Mam the fees they are asking is very high, even a Senior advocate from high court won't ask for so much appearance fee. Hier a good criminal lawyer the bail shall be argued and decided.by the court.

Moreover the self defence is.valid defence under Indian penal.code a person has right to defend body and any act in defence is not.offecne.

There are plenty of.judgements on issue.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi,

You need to apply for bail in the court of law mentioning all the facts and it is sure that you will be heard. You may approach court through legal aid society also.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

What is the stage of the case. You can file bail application in court for the same. You need to make out a case for bail. In murder cases bail is not given early. You an get bail Need to try harder.

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

Hello,

First of all the section imposed will not be there and the court afterwards will replace it with section 304 , IPC. It is necessary to know all the facts and circumstances of the case to find out a way to get bail but it seems it is possible , and the cost can be within your reach .

I would like to request you to get in touch with me for further advice.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Please tell me as to on what grounds the bail was rejected?

The same was rejected by the session court or the high Court?

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Dear client, you can file a regular bail application before the High Court under section section 439 of Cr.p.c. Your husband can gt bail if he is able to show the sufficient reason i.e he fired only for self defence to protect himself and he had no illwill.

Bindu Gogoi
Advocate, Guwahati
75 Answers
2 Consultations

4.8 on 5.0

Does he have any other criminal record or is he in anyway involved in any crime earlier ?

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

AIR 1978 Supreme Court, 179, Gurucharan Singh and Ors. v. State (Delhi Admn.) wherein it was held -

"Section 439(1), on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1). The overriding considerations in granting bail which are common both in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offences of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. The two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others."

In BHAGIRATHSINH JUDEJA v. STATE OF GUJARAT, the Supreme Court held as follows:

"In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary ;for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and Whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interefere with the order made by the High Court."

For the reasons given above, the learned Counsel for the petitioner submits that this application be allowed ordering to release the petitioner on bail on such terms as the Court feel just and reasonable.

(i) 1977 (1) Crl. L.J. 486, Sant Ram v. Kalicharan and Ors. in which the Supreme Court held as follows:

"The Court while granting bail under Section 439 cannot go into the details of evidence to find out whether the evidence will be sufficient in establishing the guilt of the accused beyond reasonable doubt, it being not a relevant consideration at this stage to ascertain the probability of improbability of the prosecution case terminating in the conviction of the accused or not. While deciding a bail application it is not desirable to dissect or pronounce on the evidence otherwise in resorting to such a procedure the Court would be exceeding the limits of its functions. The probability of the guilt or innocence of the accused-persons is not a relevant consideration while dealing with bail applications as the question to determine is whether the prosecution will be able to produce prima facie evidence in support of the charge and not evidence establishing the guilt of the accused persons beyond a reasonable doubt. Case law reviewed."

(vi) In 1991 Crl.L.J., 1298, M.P. Ramesh and Ors. v. State of Karnataka this Court held as under:

"It is well settled by the law laid down by the Supreme Court that personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Article 21, that the crucial power to negate it is a great trust and confidence to be exercised, not casually or cursorily but judicially, with great care and circumspection in accordance with the established principles of justice displaying a lively and serious concern of the consequences of the refusal of bail to the individual concerned and the community. The significance and sweep of Article 21 of the Constitution make the deprivation of liberty a matter of grave concern. The deprivation of liberty would be permissible only when the law authorising and sanctioning it is reasonable, even-handed and geared to the obtainment and accomplishment of the good of the community.

The above are some references under which murder case accused have been granted bail;

If your lawyer is demanding exorbitant charges for getting your husband enlarged on bail, you may change the lawyer

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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