What factors do Sessions Courts and High Courts consider while granting bail?

Factors Considered by Sessions Courts and High Courts While Granting Bail

Bail is a crucial aspect of criminal jurisprudence in India, ensuring that an accused is not unnecessarily detained while awaiting trial. Both Sessions Courts and High Courts consider several factors while deciding bail applications, whether under Section 480, 482, or 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Below are the key factors that courts consider while granting regular bail, anticipatory bail, or interim bail:

1. Nature and Gravity of the Offense

The seriousness of the alleged crime is one of the most important factors.

  • For serious offenses like murder (Section 103 BNS), rape (Section 64 BNS), or economic offenses involving huge amounts, courts are more cautious while granting bail.
  • For minor or bailable offenses, bail is usually granted easily.

2. Prima Facie Case Against the Accused

  • The court examines whether a prima facie case (first impression case) is made against the accused.
  • If there is strong evidence linking the accused to the crime, bail may be denied.
  • If the prosecution’s case is weak, the accused may be granted bail.

3. Possibility of Tampering with Evidence

  • If there is a chance that the accused might destroy evidence or influence witnesses, bail can be denied.
  • Courts assess whether the accused holds a position of power that can be misused to manipulate the investigation.

4. Chances of the Accused Absconding

  • Courts consider whether the accused has a permanent residence, stable job, or family ties in India.
  • If there is a likelihood that the accused may flee the country, the court can reject bail or impose conditions like surrendering a passport.

5. Criminal Antecedents (Previous Criminal Record)

  • If the accused has past criminal cases, the court is less likely to grant bail.
  • If the accused is a repeat offender, bail may be denied to prevent further offenses.

6. Delay in Filing Chargesheet or Trial Proceedings

  • If the investigation is delayed and no chargesheet is filed within 60 days (for offenses punishable up to 10 years) or 90 days (for offenses punishable by death, life imprisonment, or over 10 years), the accused is entitled to default bail under Section 187(2) BNSS
  • If the trial is unnecessarily delayed, the court may grant bail.

7. Age, Gender, and Health of the Accused

  • Courts consider if the accused is a senior citizen, a woman, or a minor.
  • If the accused is critically ill, bail may be granted on humanitarian grounds.
  • Pregnant women or individuals with serious medical conditions often receive sympathetic consideration.

8. Conduct of the Accused During Investigation

  • If the accused has cooperated with the investigation and has not misled authorities, bail is more likely.
  • If the accused has been evasive, refused to appear before authorities, or given false information, bail may be denied.

9. Public Interest and Impact on Society

  • If granting bail may disturb public order, especially in high-profile or sensitive cases (e.g., riots, communal violence, or economic fraud), courts may refuse bail.
  • The public sentiment and likelihood of protests or unrest are also considered in some cases.

10. Role of the Accused in the Crime

  • Courts assess whether the accused was the main conspirator, an accomplice, or a minor player in the crime.
  • If the accused has a lesser role, bail may be granted with conditions.

11. Specific Provisions Under Special Laws

Certain special laws have stricter bail provisions:

  • NDPS Act (Narcotic Drugs and Psychotropic Substances Act) – Bail is difficult to obtain in cases involving commercial quantities unless the accused proves innocence.
  • UAPA (Unlawful Activities Prevention Act) – The accused has to prove that they are not guilty, which makes bail tougher.
  • Prevention of Money Laundering Act (PMLA) – Bail is difficult in cases involving large financial scams.

12. Strength of the Prosecution’s Case

  • Courts examine whether the evidence produced by the prosecution is strong enough to justify continued detention.
  • If the prosecution fails to provide credible material, the court may grant bail.

13. Victim’s Statement and Objections

  • In cases of sexual offenses, domestic violence, or heinous crimes, the court considers the victim’s objections.
  • If the victim fears for their safety, bail may be denied or granted with restrictions.

14. Bail Conditions and Sureties

  • Courts may impose stringent bail conditions like:
  • Regular attendance in police station
  • Not leaving the city or country without permission
  • No contact with witnesses or complainants
  • Furnishing a personal bond or sureties

15. Parity with Co-Accused

  • If a co-accused has been granted bail in a similar role, the court generally follows the principle of parity and grants bail.

Conclusion

Bail decisions in Sessions Courts and High Courts depend on multiple factors such as the nature of the offense, past criminal record, possibility of absconding, and tampering with evidence. The court balances the right to personal liberty with public interest and justice.

Would you like further details on any specific aspect of bail?

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

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