You can move the trial court for bail after the chargesheet is filed. Alternatively, you may move the HC directly depending on the sections slapped in the FIR and the facts and circumstances of the case. Vacation bench sits only during the vacation, whereas it will be listed before the regular bench on all other occasions.
Which court to apply bail?
Bail dismissed as withdrawn as liberty to file after chargesheet in Honble High Court by vacation bench. Now after chargesheet, can we apply bail in trial court? Can we apply in regular bench in High Court or we are booked to same Honble Judge?
Asked 8 years ago in Criminal Law
Religion: Hindu
11 Answers
1) You have to apply for bail in trial court
2) you cannot apply for bail directly before HC
Hi, You can apply for regular bail in the High Court and it will not come before same judge, unless roster in the same judge.
You have not stated that the accused has been remanded or not yet.
If the accused has not been remanded then it should be anticipatory bail.
If the high court has dismissed the bail application for the said reason, then you may file AB before the sessions court itself and need not approach high court straightaway.
If the accused has been remanded then you may apply for bail in the court which remanded him.
Dear Querist
as the charge sheet has already been filed then apply the bail before trial court.
as per information it seems that you may apply anticipatory bail u/s 438 of Cr.P.C. which was dismissed as withdrawn, now you may file the same before trial court u/s 437/439 of Cr.P.C. as the case may be.
Feel Free to Call
Some clarifications: 45 days have already passed in JC (Its ACB case). Its bail asked under 439. (One Co- accused has laready been released on bail by lower court, before challan) I got the answer that we can apply in trial court after chargesheet, Only doubt remains if we are booked before same bench or we can go to regular HC bench hearing 439 bails?
Asked 8 years ago
Some clarifications: 45 days have already passed in JC (Its ACB case). Its bail asked under 439. (One Co- accused has laready been released on bail by lower court, before challan) I got the answer that we can apply in trial court after chargesheet, Only doubt remains if we are booked before same bench or we can go to regular HC bench hearing 439 bails?
Asked 8 years ago
if other co accused has been already released on bail by trial court on grounds of parity you would also get bail
2) Ram Roop v. State of U.P. 1987 UP Crl. Rulings 30. In this case, it was observed that as a co-accused having role similar to the applicant in that case was granted bail, the applicant should also be granted bail.
3) in the matter of Babu Singh and others v. The State of Uttar Pradesh1 in which the Apex Court has held that application for bail rejected at earlier stage - Order refusing bail does not bar fresh application on later occasion giving more details, further developments and different consideration. At the time of grant of bail the Court is required to consider the following circumstances: - (1) The nature of the accusation (2) The nature of the evidence in support of the accusation (3) The severity of the punishment which conviction will entail.
4) in case of Sureshchandra Ramanlal v. State of Gujarat and another in which the Apex Court has held that co-accused is entitled for equal treatment and is entitled for bail on the ground of parity
5) you can move SC against HC order
The roster of judges in the HC keeps on changing every few weeks. Your bail, as and when moved by you before the HC, will be listed before the regular bench in accordance with roster existing at that time.
In case of non-bailable offences, as per section 437 Cr.P.C and Section 439 Cr.P.C, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.
The section 437 Cr.P.C, 1973 lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc.
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
The sessions court is not empowered to take cognizance directly. It comes in to picture only after committal of case by the magistrate or after rejection of bail by the magistrate. thus there is no occasion to move to sessions court under s. 437. The application before session court can be filed under s. 439 after rejection of bail by the Magistrate u/s 437.
1. You have been given liberty to file bail petition before the High Court after the charge sheet is filed,
2. You have not been barred from filing the petition before the trail court,
3. You can file the bail petition before the regular bench if you have decided to file the petition before the High Court.
You shall have to file the bail petition before the regular bench of the High Court.
1. It will be easier to get the bail since one of the co-accused has already been enlarged on bail,
2. The High Court may impose some condition also for granting bail.