Can bail application be made after charge sheet is filed in criminal case?

Question: Can bail application be made to the court after charge sheet has been filed by police in a criminal case. What are the factors that are considered for granted bail in such circumstances?

Answer: Yes. The bail application can definitely be filed by the accused after submission of charge sheet by the police on completion of their investigation. There is no restriction on the filing of bail application after charge sheet.

In fact, on the other hand, after the filing of charge sheet, the chances of getting bail generally increase. This is so because some of the reasons for which bail is rejected during the period when the police is conducting investigation are (1) custody of the accused is required for investigation; (2) if the accused is enlarged on bail during investigation stage then he is likely to destroy or conceal the evidence or may influence / threaten the witnesses. However, once the charge sheet has already been filed by police, these reasons are generally not applicable or are applicable with less strength. For example, after charge sheet is filed, the custody of the accused would not be needed for investigation purposes; and, also since the evidence would have already been collected by the police, chances of destruction or concealment of evidence by accused would be much less though chances of threatening witnesses may still be there to some extent.

That said, however, sometimes, when the offence is of a very serious nature (such as, an offence which is punishable with death sentence or with life imprisonment), the fact that charge sheet has already been filed may imply that there is sufficient or prima facie evidence to convict the accused of such serious offence. In such cases, in view of the seriousness or the gravity of the case in which prima facie evidence is already collected against the accused person, sometimes the courts find it more difficult to release the accused on bail after submission of charge sheet.

So, it all depends on various factors and also on the facts and circumstances of each case as to whether the chances of getting bail after submission of charge sheet will become brighter or lesser. In any case, the fact remains that bail application can, no doubt, be filed after submission of the charge sheet. Whether or not bail would be granted after filing of charge sheet would depend on several factors.

What factors are considered for grant of bail in a non-bailable offence?

The overriding considerations in granting bail which are common both in the case of S. 437(1) and S. 439(1) Cr.P.C. of the new code 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 offence, 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. [Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 at p. 186 : (1978) 1 SCC 118 : 1978 Cri LJ 129 : 1978 SCC (Cri) 41.]

The considerations which normally weigh with the court in granting bail in non-bailable offences, basically, are — the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. [State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC 50 at p. 56 : AIR 2003 SC 3224.]

The considerations which normally weigh with the court in granting bail in non-bailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. [Chenna Boyanna Krishna Yadav v. State of Maharashtra, (2007) 1 SCC 242 at p. 247 : (2007) 1 SCC (Cri) 329 : 2007 Cri LJ 782 : (2007) 50 AIC 637 (SC).]

Certain relevant considerations for grant of bail, though only illustrative and not exhaustive – neither there can be any, are as under:

(i) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(iii) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(iv) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

[Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002) 3 SCC 598 : 2002 SCC (Cri) 688.]

While granting bail the court has to consider the nature and gravity of the circumstances in which the offence is committed; the position and status of the accused with reference to the victim and witnesses; the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with the grim prospect of the possible conviction in the case, of tampering with a witness; the history of the case as well as of its investigation and other relevant grounds. [Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143 at p. 148 : AIR 2005 SC 1299 : 2005 Cri LJ 1721 : 2005 SCC (Cri) 660.]

[Note: Some contents in the above answer have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-440-0).]