Regular bail is granted to an accused that is already in custody. Power to grant regular bail is concurrent with High Court as well as Court of Session. Grant of bail is always a matter of discretion. A person does not have right to get bail. Moreover merely because a co-accused has got bail does not mean that another accused shall also get bail. Even different courts entertaining different regular bail applications can reach different conclusions and one may refuse the bail while another may grant it.
Bail is different from a petition of habeas corpus. When a person has been accused of an offense and is under legal detention, regular bail is applied to get out of police custody. If the detention itself is not legal then the proper remedy is to file a petition of habeas corpus before High Court.
Courts in India has also held that generally bail should be allowed and granted. Further, bail should not be used as a tool to punish the accused person. Moreover an application for grant of regular bail must be considered without elaborate comments on merits of the case. This is especially so when the regular bail petition is decided by Chandigarh High Court because later on it can affect the decision passed by lower court while acquitting or convicting the accused person.
While the gravity of the offense is one of the key factors to decide whether to grant regular bail out not, however, this is not the sole factor on which court considers the grant of regular bail. The court does not have unfettered powers to grant bail. The judicial discretion must be exercised judicially. Some of the other factors which are to be considered while granting regular bail are nature and gravity of offenses, position and status of the accused, likelihood of the accused fleeing from justice, tampering with the witnesses.
Some other important points to be considered in a petition for regular bail are –
- Court has to strike a reasonable balance between liberty of a citizen on one hand and non-interference in the police investigation on the other hand.
- When sessions court has refused to grant regular bail, the person who is in custody must challenge the order of sessions court along with a prayer for grant of regular bail.
- In criminal law, the most important consideration for the court is that the accused must not free from justice. He should be available during the trial and when judgment is pronounced.
- Courts may refuse to give bail when there is apprehension that prosecution witnesses would be one over by the accused. However mere apprehension alone cannot be ground for refusal of bail. There must be some evidence that the accused has actually interfered or has attempted to interfere in the administration of justice.
- Long delay in conclusion of police investigation is a good ground for grant of regular bail.
- Where special courts have been constituted to try the offenses, those special courts only have jurisdiction to entertain application for grant of regular bail.