A was charged for the cold blooded murder of his girlfriend. His bail application was rejected by the Court of Sessions (See Section 439 of the Code of Criminal Procedure,1973) A’s counsel then filed for bail in the High Court. The High Court Judge was also not convinced. A’s counsel sensed the disapproval of the High Court Judge. The Judge was about to dismiss the application. The judge was even inclined to make remarks on the merit of the case. A’s counsel prayed to the judge that he may be permitted to withdraw the application. The bail application was therefore dismissed as withdrawn, without any remarks being made on the merits of the case.
One would think that withdrawing a bail application which was likely to be dismissed, would not have made any difference. However, it may be better to withdraw such applications instead of taking them to their logical conclusion. A remark made by a Superior Court binds its Subordinate Court, where the case is to be heard. Such comments of a Superior Court cannot be ignored by a subordinate court. Observations on merits of a case have the potential to influence the trial. If the counsel for the applicant/accused feels that a remark may affect the trial adversely, it would be a sound strategy to withdraw such an application instead of letting it be rejected with adverse comments. Forgoing the relief sought in such a situation is a prudent approach.
Let us imagine that A’s girlfriend was poisoned to death. Further, lets also assume that that the poison used was of a rare kind. In such a situation questions by High Court Judge to A’s counsel in regard to the type of poison and its availability have the potential of disclosing A’s defence at a very early stage. Even in this situation, it would be wise for A’s counsel to withdraw the bail application instead of disclosing his defence. He may choose to re-file the bail application at a later stage. Also, after withdrawing a bail application filed before a High Court, the accused revives his right to move a subsequent bail application before the Court of Sessions or the High Court. The Supreme Court of India in Sharad v. State of Maharashtra– Criminal Appeal No. 1221/2019 – observed “that there is no provision in the Code of Criminal Procedure,1973 or law laid down by this Court that once an accused has withdrawn his bail application before the High Court, he cannot file a subsequent bail application before the Sessions Court and that his subsequent bail application would lie before the High Court only.”
Any remark that has the potential to lower the subordinate court’s perception of accused should be avoided. The consequences of not withdrawing such an application has the potential to prejudice the mind of the subordinate court against the accused.
There may however be a case where the superior court is ready to favour the accused. Such applications should be pursued and not withdrawn. For example, in the above example, if the poison was of the kind readily available in markets, A had no antecedents, A was cooperating with the investigative agencies, and the investigation were complete and charge-sheet filed, a Superior Court may have been more inclined to admit A to regular bail.
Sometimes the judge is benevolent and would himself ask whether the counsel wants to withdraw or pursue the application. At othertimes, the judge’s gestures and demeanour would indicate to which side he’s leaning. A counsel may be able to assess a Judge’s inclination through his words, gestures, and even through his body language. Judges after all are humans and reading these small tell-tale signs can be beneficial for a defence counsel.