Difference between revisions of "India Criminal Defense Manual - Other Pretrial Matters"

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Legal aid lawyers shall, as stipulated within legal parameters, remain loyal to their clients without condition. Once conditions arise that may threaten this professional loyalty, the lawyer shall avoid representing another accused in the same case and any other person or organization whose interests conflict with that of the client.  
 
Legal aid lawyers shall, as stipulated within legal parameters, remain loyal to their clients without condition. Once conditions arise that may threaten this professional loyalty, the lawyer shall avoid representing another accused in the same case and any other person or organization whose interests conflict with that of the client.  
  
== BAIL ==
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== Bail ==
 
   
 
   
 
===Introduction===
 
===Introduction===
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2. Non-Bailable cases<ref>Under Section 437 of the Criminal Procedure Code</ref>  
 
2. Non-Bailable cases<ref>Under Section 437 of the Criminal Procedure Code</ref>  
  
In the first category, grant of bail is a matter of course and it may be given either by police in charge of the police station having the accused in custody or by the court before whom the trial is put up for hearing. Persons under  
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In the first category, grant of bail is a matter of course and it may be given either by police in charge of the police station having the accused in custody or by the court before whom the trial is put up for hearing. Persons under this provision may be released on executing of bond with or without sureties. In the second category u/s 437(1) a person may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm or if the court is satisfied that it is just and proper to do so in any other special reason. As soon as reasonable grounds for the guilt cease to appear the accused is entitled to be released on bail or on his own recognizance. The accused can be also released for similar reasons between the close of the case and delivery of judgment. When a person is released on bail the order of release is to be in writing by the court. In general, the court considers the seriousness of the charge, the nature of the evidence recovered, if any, the severity of the punishment prescribed for the offence and, in some instances, the character, means and standing of the accused.<ref>Nagendra Nath Chakravarti, (1923) 51 cal 402, 416: Robinson, (1954)23 LJQB 286,287</ref>
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A person can apply to High Court or Court of Session and the said courts can direct for grant of bail to such person apprehending arrest u/s 438. Where a person has all reason to believe that he may be arrested on accusation of having committed a non-bailable offence, on moving for the appropriate application under this section with such firm reasons mentioned and assurance that he will cooperate with the police, when needed in the investigation, and will not try to interfere or tamper with evidence or witnesses during the investigation procedure, can be granted with an interim order u/s 438(1), that he will  get a notice period of not more than seven days (7 days) prior to such arrest to move for a regular bail application before the appropriate court as per the concerned offences.
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Care must be taken by the lawyer before moving for such an application because if the application gets rejected than it shall be open for the officer- in-charge of the police station to arrest without warrant on the basis of the accusations in the application.
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In the application for anticipatory bail the petitioner must make out the special case with a firmness of belief of arrest in a false case. The petitioner must satisfy the court that the accusation against him does not stem from ordinary reasons
  
  
 
== References ==
 
== References ==
 
<references/>
 
<references/>

Revision as of 14:58, 9 June 2010

Conflict of Interest

Counsel shall be honest and responsible, making every effort to safeguard the client's legal rights. To fully perform his duties, counsel shall be loyal to his client and to the client's interests. Legal aid lawyers shall, as stipulated within legal parameters, remain loyal to their clients without condition. Once conditions arise that may threaten this professional loyalty, the lawyer shall avoid representing another accused in the same case and any other person or organization whose interests conflict with that of the client.

Bail

Introduction

Bail pending trial is a compulsory measure adopted by the Criminal Procedure Code, 1973. It allows the criminal suspect to provide a guarantee or surety to guarantee that the suspect will not escape from the case investigation during the bail period, and that he will appear as soon as summoned and will appear on all dates of hearing before the court when called to appear. Although personal freedoms are restricted when the suspect is out on bail, such restrictions are far less severe than the restrictions placed on those in custody. The legal aid lawyer should apply for his client's bail as soon as possible.

The provisions of bail are broadly classified into two categories:

1. Bailable[1]

2. Non-Bailable cases[2]

In the first category, grant of bail is a matter of course and it may be given either by police in charge of the police station having the accused in custody or by the court before whom the trial is put up for hearing. Persons under this provision may be released on executing of bond with or without sureties. In the second category u/s 437(1) a person may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm or if the court is satisfied that it is just and proper to do so in any other special reason. As soon as reasonable grounds for the guilt cease to appear the accused is entitled to be released on bail or on his own recognizance. The accused can be also released for similar reasons between the close of the case and delivery of judgment. When a person is released on bail the order of release is to be in writing by the court. In general, the court considers the seriousness of the charge, the nature of the evidence recovered, if any, the severity of the punishment prescribed for the offence and, in some instances, the character, means and standing of the accused.[3]

A person can apply to High Court or Court of Session and the said courts can direct for grant of bail to such person apprehending arrest u/s 438. Where a person has all reason to believe that he may be arrested on accusation of having committed a non-bailable offence, on moving for the appropriate application under this section with such firm reasons mentioned and assurance that he will cooperate with the police, when needed in the investigation, and will not try to interfere or tamper with evidence or witnesses during the investigation procedure, can be granted with an interim order u/s 438(1), that he will get a notice period of not more than seven days (7 days) prior to such arrest to move for a regular bail application before the appropriate court as per the concerned offences.

Care must be taken by the lawyer before moving for such an application because if the application gets rejected than it shall be open for the officer- in-charge of the police station to arrest without warrant on the basis of the accusations in the application.

In the application for anticipatory bail the petitioner must make out the special case with a firmness of belief of arrest in a false case. The petitioner must satisfy the court that the accusation against him does not stem from ordinary reasons


References

  1. Under Section 436 of Criminal Procedure Code
  2. Under Section 437 of the Criminal Procedure Code
  3. Nagendra Nath Chakravarti, (1923) 51 cal 402, 416: Robinson, (1954)23 LJQB 286,287