WHAT TO DO IF A BAIL

APPLICATION IS REJECTED?
What to do if a bail application is rejected?

A criminal law practitioner has to file a number of bail applications very often. It is not
necessary that all your bail applications are accepted. Is it an end if your application is
rejected by a court? If not then what steps can you take after your application is rejected by
the court?

A bail application may be rejected on merits or on technical grounds. Sometimes lower

courts have a tendency to reject bails in grievous crimes while higher court accepts bails
easily in the same matters. In this article we will learn about various situations when bail
can be rejected and what countermeasures you can take in such situations.

Stages when your bail can be rejected and what can be

done in those situations?
Before knowing what to do after your bail application is rejected, you must know when a
court can reject your bail application. Only then you can adopt countermeasures. Some of
the reasons for which your bail application can be rejected by the court and measures you
can take in those situations are:

Before initiation of the proceedings

When there is an anticipation that your client can be arrested, you can file an application of
anticipatory bail u/s 438 Cr.P.C. Such bail can be rejected on various grounds such as no
anticipation of arrest. You can read about anticipatory bail and grounds on which it can be
rejected in the separate chapter on anticipatory bail. In this situation, you can file a fresh
application of anticipatory bail when actual anticipation of arrest arises.

However, if the prosecution has satisfied the court that anticipatory bail must not be
granted to your client, the court may reject your bail application. In that scenario, you will
need to apply for a regular bail to the Court of Judicial Magistrate First Class (JMFC) u/s 437
Cr.P.C. If that bail is also rejected, then you can apply to Court of Sessions or High Court for
a bail u/s 439 Cr.P.C. If the bail application is rejected even by the High Court, you can file
an SLP (Special Leave Petition) in Supreme Court. Admission of an SLP will depend on
whether you meet relevant grounds for admissibility under Article 136 of the Constitution
of India. We will not discuss those here.

You can also wait for a change in the circumstances and apply for bail to the same court
which rejected the bail. The same court may grant bail under changed circumstances.

After initiation of proceedings when your client is arrested for a

non-bailable offence
If the police have arrested your client for a non-bailable offence, you can apply to the JMFC
for a bail u/s 437 Cr.P.C. However, if that bail application is rejected, then you can apply to
Court of Sessions or High Court u/s 439 Cr.P.C. for a bail. If that is rejected, you can file an

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What to do if a bail application is rejected?

SLP in Supreme Court. You can also wait for a change in circumstances and apply to the
same court for bail.

If the police have not completed investigation within 60/90 days

If the police have not completed the investigation within 90 days (in case of an offence
punishable with an imprisonment of more than 10 years) or 60 days (in case of offence
punishable with an imprisonment of less than 10 years), you can file for a bail as a matter of
right as per Section 167 Cr.P.C.

You must be very vigilant in such circumstances. The court will release your client only if
you apply for bail. If you do not apply for bail, he will not be released by default on
completion of 60/90 days. In case police file the charge sheet before you apply for bail, he
will not be released.

If the accused has undergone imprisonment of more than

one-half of the maximum period of imprisonment provided for
an offence and trial has not concluded
In this case, you can apply for a bail u/s 436A and the court is bound to release your client
unless prosecution satisfies the court that he must not be released on bail. Satisfying the
Court, in this case, is very difficult for prosecution as it needs an exceptional situation to
detain a person in this scenario. The Court has to mention special reasons for detaining a
person under this situation.

Even if he is not released at this stage and kept under detention for the maximum period of
imprisonment provided for the offence for which he is tried (and the trial has not
concluded), you can apply to the court for releasing him with immediate effect.

When a lower court convicts the accused and an appeal is filed?

You can apply to the appellate court for a bail u/s 389 Cr.P.C. in this situation. If the court is
satisfied, it can suspend his sentence and release him on bail.

Grounds on which bail can be rejected and

countermeasures
There are various grounds on which bail can be rejected by the court. You have to adopt a
different strategy to counter these grounds of rejection. Few of them are as follows:

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What to do if a bail application is rejected?

Pending investigation
If an investigation is pending against your client, and the prosecution satisfies the court that
some recovery or inquiry is still pending to be done, the court may reject your bail
application.

In this situation, you have to wait until the investigation is pending. As soon as the
investigation is over, you can apply to the court for bail. You will have to prove that nothing
was recovered from your client and your client is no more required for the purpose of
investigation, recovery or interrogation. If you succeed in proving this, you can get your
client released on bail.

Risk of tampering evidence

The prosecution may satisfy the court that your client may tamper any evidence regarding
the matter or he may threat, induce or promise any witnesses to influence them to give
evidence in his favour. If the court is satisfied, it may reject your bail application.

If you can satisfy the court that your client cannot tamper any evidence or influence any
witness, then you can secure bail for your client.

Likelihood of fleeing from justice

If it is proved up to the satisfaction of the court that your client may flee from India, the
court may reject your bail application. You can convince the court that due to various
reasons like business, family, etc. he is going to stay in India, it will be very easy for you to
secure bail for your client.

Technical Grounds
A bail application may be rejected due to technical issues. For instance, your bail application
may be rejected for lack of jurisdiction of a court. In that case, you can apply to the correct
court and secure bail for your client.

Similarly, if you have applied to a superior court asking to grant bail, they may simply reject
the bail asking you to apply to a lower court first and approach them according to the
procedure laid down by the law.

In this situation, you can apply to the lower court and get bail. If the lower court rejects the
bail, you can approach the superior court for bail.

Heinous/ Grievous offences

If your client is accused of an offence punishable with death penalty or life imprisonment or
he was convicted for an offence punishable with more than seven years or convicted on

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What to do if a bail application is rejected?

two or more occasions for an offence punishable with three or more years, as a matter of
practice, the court may not be inclined to grant bail to your client.

You can apply for bail to the court showing that your client is a female or a person aged
below sixteen years or a sick or infirm person. You may also show such other special
circumstances which may make your client eligible for bail.

Disposition of a magistrate or a judge while dealing with bail

applications
The magistrate or judge of a lower court may have a tendency of rejecting bail applications
in certain kind of cases. For example, he might be sensitive towards a particular issue and
decide the case in question according to his personal preference which might work against
sound legal deciding factors.

Sometimes lower courts hesitate to grant bail in grievous or heinous crimes.

In those situations, you just have to apply to the court to get your bail application rejected.
You can take a copy of the order of the court and apply to a superior court u/s 439 Cr.P.C.
In certain situation, you can even approach the Supreme Court by filing an SLP. Most
probably you will succeed in securing bail for your client in such situations.

Rejection of bail by a link magistrate on a holiday

Police is bound to produce a person before a magistrate within 24 hours of arrest u/s 167
Cr.P.C. If the day on which the accused is to be produced is a holiday, then the magistrate
having jurisdiction may not be present. To deal with this situation, a link magistrate is
appointed by the Court of Sessions to grant bail or remand for the period of holidays.

Such magistrates avoid giving bail to the accused and prefer to send him into custody for
the period of holidays. You can apply to the magistrate having jurisdiction as soon as the
holidays are over. In most of the cases, you will secure bail for your client.

This is not an exhaustive list of the grounds of rejection of bail and measures to deal with
them. However, they will provide you with enough acumen to deal with other situations
also.

Where do you have to apply for bail after a bail application

is rejected?
It depends upon the facts and circumstances of a case. In some cases, you can apply to the
same court which rejected the bail applicatio n, for instance on change of circumstances.
You can refer the chapter on applying for bail on change of the circumstances to learn this
in more detail. While in other cases you have to apply to a superior court to seek bail.

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What to do if a bail application is rejected?

You cannot apply directly to the superior court for bail. According to Section 437 Cr.P.C.,
you have to apply to the court of Judicial Magistrate First Class for bail. If your bail is
rejected, you can apply to the court to the superior court u/s 439 Cr.P.C. You can file an SLP
in Supreme Court only after exhausting all the remedies available with you.

Note: A superior court is a court where the appeals against the judgments of the lower
court rejecting the bail application lies.

Court of Sessions and High Court have concurrent jurisdiction in case of anticipatory bail
u/s 438 Cr.P.C. If bail is rejected by any one of them, you can still apply to the other court
for bail. You can also go for a regular bail application u/s 437 Cr.P.C. after an anticipatory
bail is rejected. There is no rule which prohibits the grant of bail after the rejection of
anticipatory bail.

Limitation and number of bail applications

There is no limitation to file a bail application. You can file an application at any stage and at
any time. There is no restriction on the number of applications you can file. However, it is
advisable that you should use this wisely.

Remember, while applying for bail after the rejection of your bail application, you just have
to convince the superior court that there was a mistake by the lower court while deciding
the bail application. You can also convince them that your client is no more required for
investigation, interrogation or recovery. Your client is not dangerous for the society if left
open and so on.

In Gudikanti Narasimhulu And Ors vs Public Prosecutor 1978 AIR SC 429 on 6 December,
1977 (see here) the Supreme Court held that bail is a rule and jail is an exception. Courts
always tend to grant bail unless there is a danger to the society or risk of tampering of
evidence or influencing the witnesses or fleeing from justice, etc.

As soon as you prove that it is not required to keep your client under confinement, the
court will grant him bail. If your bail application is rejected, you must keep looking for a
chance where prosecution commits a mistake or circumstances change in your favour. You
must apply for bail immediately in that situation and try to get bail for your client.

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