• Bail under section 438

Hi sir/mam, i have dispute regarding path. I have filed a case for Claiming easemenry right but in between opposite party fought with my family member by trespassing my house.I lodgelodged a for FIR in police station.the case I'd registered against them.they seek bail from session court but court give them anticipitary bailbail and today judgement for the same decided.the court made the anticipatory absolute and direct the applicant to seek  regular bail from trial court.pl guide me whether on direction of session court the trial court will grant regular bail? Or I can contest the regular bail in lower court? Becoz they fought with my family member By trespassing in house.pl guide
Asked 5 months ago in Criminal Law from Udhampur, Jammu and Kashmir
Religion: Hindu
The trial court is not bound to give them bail. It has to decide the bail petition on merits independently of what the Sessions Court had said in its order. You can certainly oppose the regular bail as and when it comes up for hearing. 
Ashish Davessar
Advocate, Jaipur
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court would grant the accused regular bail subject to certain terms and conditions that he would not threaten the complainant and his family members and furnish surety as mentioned in the order 

2)It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course.

 In Chaman Lal v. State of U.P.[1], Supreme  Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: -

“…. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence,

(ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.”

3). In Prasanta Kumar Sarkar v. Ashis Chatterje, Supreme  Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows: -

“9… among other circumstances, the factors which are to be borne in mind while considering an application for bail are:

i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence;

ii) nature and gravity of the accusation;

iii) severity of the punishment in the event of conviction;

iv) danger of the accused absconding or fleeing, if released on bail;

v) character, behavior, means, position and standing of the accused;

vi) likelihood of the offence being repeated;

vii) reasonable apprehension of the witnesses being influenced;

and

viii) danger, of course, of justice being thwarted by grant of bail
Ajay Sethi
Advocate, Mumbai
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the public prosecutor would oppose grant of bail 
Ajay Sethi
Advocate, Mumbai
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Read my reply where I have answered this.
Ashish Davessar
Advocate, Jaipur
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447 Consultations
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You can oppose the regular bail by filing vakkalath and objection to their bail application. Elementary right is comes under civil law and tress pass is considered to be Criminal offence .
Ajay N S
Advocate, Ernakulam
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Since you registered your complaint with a FIR and the police have taken action on it, the opponents approached court with an application seeking anticipatory bail. 
The court has granted anticipatory bail and advised the accused to approach lower court for execution of regular bail. 
There is nothing uncommon in this.  
It is routine to get regular bail after taking anticipatory bail.
T Kalaiselvan
Advocate, Vellore
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Can I oppose them iN  trial court for granting of regular bail

The regular bail in the trial court is just a formality.  The court may not consider the objection made by you in this regard.If you are aggrieved by the order of court which granted the anticipatory bail you may move that court with an application for cancelling the bail for the reasons which you rely upon for this move.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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