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DR.

RAM MAHOHAR LOHIYA NATIONAL LAW


UNIVERSITY

(PROJECT)

DRAFTING OF CRIMINAL BAIL APPLICATION


IN NON
NON-BAILABLE
BAILABLE OFFENCES

SUBMITTED TO: SUBMITTED BY:


BY

Ms.ShakuntlaSangam Sankalp Patel

Asst. Prof. (Law) Roll no. 131

RMLNLU, Section: B

Lucknow VIthSemester

B.A. LL.B. (Hons.)


ACKNOWLEDGMENT

Firstly, I would like to thank my Drafting, Pleading and Conveyance teacher Ms.Shakuntala
Sangam for giving me such a golden opportunity to show my skills through this project. The
project is a result of an extensive research study, hard work and labour, that is put into to
make it worth reading.

I wish to acknowledge that in completing this project I had full support of my friends as well
as my teacher. This project would not have been completed without the help of my
university’s library Dr.Madhu Limaye library and through the university’s internet.
INTRODUCTION

Bail, in law, means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority. The monetary value of the security, known also as the bail, or, more accurately, the
bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash,
the papers giving title to property, or the bond of private persons of means or of a
professional bondsman or bonding company. Failure of the person released on bail to
surrender himself at the appointed time results in forfeiture of the security. The law lexicon
defines bail as the security for the appearance of the accused person on which he is released
pending trial or investigation.Non-bailable offences are serious offences where bail is a
privilege and only the courts can grant it. On being arrested and taken into custody for a
serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

After consideration of factors such as the seriousness of the offence, the chances that the
accused will interfere with the investigation by tampering with evidence or threatening
witnesses or if the accused is likely to go into hiding or leave the country to escape, the court
will decide whether he/she can be allowed to be let out on bail or not. If someone is refused
bail, he/she can appeal to a higher court.
Courts have greater discretion to grant or deny bail in the case of persons under criminal
arrest, e.g., it is usually refused when the accused is charged with homicide.

What is contemplated by bail is to "procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself
to the jurisdiction and judgment of the court."

A reading of the above definition make it evident that money need not be a concomitant of
the bail system. As already discussed above, the majority of the population in rural India,
lives in the thrall of poverty and destitution, and don't even have the money to earn one
square meal a day. Yet, they are still expected to serve a surety even though they have been
charged with a bailable offence where the accused is entitled to secure bail as a matter of
right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail
authorities rubbing shoulders with hardened criminals and effectively being treated as a
convict.

FACTORS SEEN FOR GRANT OR DENIAL OF BAIL

Purpose of arresting a person is to secure the presence of the accused at the time of enquiry,
trial or other proceedings. However, consequences of pre-trial confinement are grave,
therefore, the provision of Bail is provided. Objective is to release on bail maximum number
of accused persons without seriously endangering the objective of arrest and trial since there
is presumption of innocence of an accused till he is found guilty.

It is improper to release on bail a person who-

a. Absconds or jumps bail


b. Is likely to destroy evidence
c. Tempers with prosecution witness or is likely to commit more offences

Circumstances in which release on bail is mandatory.

1. Arrestee not accused of non-bailable offence


a. Ready to execute / furnish bond
b. Bail- not excessive
c. Detention illegal (contravention of Section 436) (Officer will be guilty of wrongful
confinement under section 342 of IPC)

2. Investigation not complete within time prescribed

a. Maximum detention
b. 90 days - when punishment from the crime is more than 10 years
c. 60 days - all other cases
d. Object - investigation must be completed expeditiously and within reasonable time
3. No reasonable ground exists for believing the accused guilty of non-bailable offence

4. Trial before Magistrate not concluded within 60 days

5. No reasonable ground exists for believing the accused guilt after conclusion of trial but
before judgment.

 Relief

What is contemplated by bail is to "procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself
to the jurisdiction and judgment of the court."

In case a person is accused of a non-bailable offence it is a matter of discretion of the court to


grant or refuse bail and and application has to be made in court to grant bail.A person will not
be released if there are reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and
he had been previously convicted of an offence punishable with death, imprisonment for life
or imprisonment for seven years or more, or he had been previously convicted on two or
more occasions of a non-bailable and cognizable offence. However a person under the age of
sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time
after the trial of a person accused of a non-bailable offence and before judgment is delivered,
the Court feels that the accused is not guilty of any such offence, it shall release the accused
on bail.

CONTENTS OF CRIMINAL BAIL APPLICATION TO BE


FILED IN THE CASE OF SECTION 302 IPC CHARGED
WITH MURDER UNDER SECTION 439 R/W 482 CRPC
o Urgent Application
o Memo of parties
o Translated copy of FIR
o Charge sheet
o Application of bail under section 439 r/w section 482 of crpc
o Vakalatnama

MEMO OF PARTIES

IN THE HIGH COURT OF DELHI

(Ordinary Civil/Criminal/Appellate Jurisdiction/Extra Ordinary Original Civil Jurisdiction)

APPEAL/REVISION/PETITION NO................OF 2014.

(Appeal/Revision/Petition against the judgment and order dated ..................... passed by

Mr.Dharmesh Sharma, sessions judge Patiala house sessions court, New Delhi in Suit No.
...................../Case No. etc. .................. titled ....................................................... (cause title
of the case as shown in the impugned order)

R.K Singh son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G
Road, New Delhi-011

V.

STATE
MEMO OF PARTIES

1. ..........................................

2. ...........................................

3. ........................................... Appellant/Petitioner(s)

Vs.

1. ...........................................

2. ...........................................

3. ........................................... Respondent(s)

FIR

On the date of 4thjuly 2013, at M.g road, near Sarai kale Khan police Station. Persons named
A,B and Cwere going in a car returning from their shops at around 10 pm which are situated
in Sarai Kale Khan Market Area.Near ‘noida DND Flyway. Soon a motor cycle overtakes
them and stops in front of them. Three persons (alleged to be accused of this case) namely
R.K singh, V.k Singh and B.S Singh, who were masked got down and came towards the car.
The pointed the gun towards the person A who was sitting on the drivers seat and shot him
while the other person shot B on the passengers side. The third assailant waited on the motor
cycle and they ran away. The person C called the police and arranged for the ambulance and
took A and B to the hospital nearby named “Leelavati hospital” while leaving a
constableramlal (batch no. 1234) at the crime scene. The hospital declared the persons
brought dead and the entry has been made at the hospital register at about 1 p.m. Sub
inspector R.S Yadav (batch no. 1235) SHO SaraeKAale Khan Police Station. On the basis of
SI investigation the F.I.R has been lodged against unknown persons and the matter has been
referred for incestigation. Later on, C’s statement about the contacts and incident the police
arrested the tree alleged accused. So a bail application is drafted and filed in the high court of
judicature in order to seek a bail in the non cognizable offence for the alleged accused.
CHARGESHEET

F I N A L R E S U L T [U/S 173 CR.P.C]

IN THE HIGH COURT OF JUDICATURE NEW DELHI

01: Dist. Delhi; Police Station: Sarai Kaale Khan

FIR NO. 1125/2014 Dated: 28-1-2014

02: Final Report No. : 2/2014

03: Final Report Date : 26-02-2014

04: Act and Section of Law : Offence U/s 302 IPC

05: Type of Final result : Charge sheet

06: If F.R. Un occurred : Occurred

07: If Charge Sheet Original or Supplementary : Original

08: Name of the I.O. : R.S Yadav SI Of Police,

09: Name of the complainant cc: household, cast:Brahmin : Mr C S/o Anil Kumar

Age: 27 yrs R/o c-3, kirlokari, maharani bagh, M.G Road, New Delhi-011

11: Particulars of accused persons charge sheeted :-A1. R.K Singh son of Y.B. Singh,
Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011

A2P.K Singh, son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh,
M.G Road, New Delhi-011

A3M.K Singh, son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh,
M.G Road, New Delhi-011

Brief facts of case:

On the date of 4thjuly 2013, A person named a,b and c were going in a car returning from
their shops at around 10 pm. Soon a motor cycle overtakes them and stops in front of them.
Three persons (alleged to be accused of this case) who were masked got down and came
towards the car. The pointed the gun towards the person A who was sitting on the drivers seat
and shot him while the other person shot B on the passengers side. The third assailant waited
on the motor cycle and they ran away. The person C called the police and arranged for the
ambulance and took A and B to the hospital while leaving a constable at the crime scene. The
hospital declared the persons brought dead. On the basis of C’s statement about the contacts
and incident the police arrested the tree alleged accused. So a bail application is drafted and
filed in the high court of judicature in order to seek a bail in the non cognizable offence for
the alleged accused.

On the investigation report filed by the Sub inspector charges were framed under section 302
and 201 of IPC read with section 34. Based on the statement of C which is PW 1 of the case
the accused were arrested and remanded.

Hence, the charge,


Signed
Sub inspector RS yadav

APPLICATION DRAFT: IN THE COURT OF HON’BLE HIGH COURT

BAIL APPLICATION NO. …OF 2014

STATE

Vs.

R.K Singh son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G
Road, New Delhi-011

Application U/s 439r/w 482 Cr.PC for grant of bail to the accused/applicant in the above
noted FIR and appropriate direction may kindly be issued to the IO/SHO/Arresting officer to
release the Accused/applicant on bail in the event of his, during the pendency of the present
petition; AND It is further prayed that the arrest of the Accused/applicant in the above noted
FIR, may kindly be stayed. AND/OR Pass any other appropriate order or direction which this
hon’ble court may deem fit and proper in the facts and circumstances of this case.
RESPECTFULLY SHOWETH

1. That the Accused /applicant has no nexus and connection with the above mentioned
offence. That the applicant have not caused trespass and theft as is falsely reported

2. That the accused/applicant is victim of false allegation made by his mother. The facts
emanating from the record disclose a sordid state affair where apparently law of land has
been subverted. The accused/applicant is quite innocent and has not committed any offence.
A copy of FIR is attached herewith as ANNEXURE A/1

3. That a brief chronology of the facts, events and circumstances is apt to be highlighted et
seriatim as under:-

3.1 Accused/applicant is Resident of the house, bearing property No. A-33 kirlokri, maharani
bagh, New Delhi.

3.2 Accused/applicant is the sole earner of the family.

3.3 since all the three accused are brothers and belonged to same family. There is no one
left to look after the children and shops in their absence.

3.4 the assailants were masked and hence there is no clear evidence that the accused are
the assailants

4. Where both the husband and the wife were charged of committing murder of their child
and the wife applied for bail on the ground that she had another small child at home, that
there was no body to look after him or the case, that the case would take a long time to
conclude, that the cultivation of the petitioner would suffer, that the proviso to sub-section (1)
of section 497, Criminal Procedure Code (old) applied to the case and she was allowed the
bail.169

5.Grant of bail to an accused person who is involved in a Criminal Conspiracy for murder, on
the ground that there is some discrepancy in the evidence of approvers is improper.2

1
Mst. Chokhi v. State 1957 CrLJ 102: AIR 1957 Raj 10
2
Emperor Vs. Abu Baker, 42 CrLJ 703: AIR 1941 Sind 83
6. InJeet Ram Vs. State of Himachal Pradesh.3 There was no material that the accused after
release on bail would abscond to evade trial or tamper with prosecution evidence bail was
allowed.

7.In Rajesh RanjanVs. State of Bihar 4Under section 302 IPC statement of eye-witnesses,
confession of co-accused found not sufficient to connect the accused with the commission of
crime.

8. That nothing is to be recovered from the Accused/applicant and hence the custodial
interrogation of the Accused/applicant is not required. The Accused/applicant undertakes not
to leave the territorial jurisdiction of this hon’ble court without prior permission.

9. That the Accused/applicant is ready to join the investigation as and when required by the
police.

10. That Accused/applicant undertakes not to misuse the concession of bail in any manner
and not to tamper with the prosecution evidence.

11. That the Accused/applicant is permanent resident of above stated address and there is no
apprehension of his absconding.

12. That Accused/applicant undertakes to abide by all terms and condition to be imposed by
this Hon’ble court in the event of grant of bail to the Accused/applicant.

PRAYER

It is, therefore prayed that the applicant may kindly be released/granted anticipatory bail in
FIR No. 135 dated 08/04/2013, P.S. Amar colony , District South East,, New Delhi, and
police be directed to release the applicant on bail in the event of his arrest. APPLICANT
THROUGH (AVIRAL UMRAO) Advocates for the Complainant Office at :: Room No- 163
UG boy’s Hostel, RMLNLU Phone: 9044198302, 7785037115 Lucknow

Dated: ____ February , 2014

3
2002 3 shim LC 349: 2003 CrLJ 736 (739) (HP)
4
181 2005 CrLJ 242 (Pat).
VAKALATNAMA

IN THE COURT OF ___________________________________________________

Suit /Appeal No./CWP ____________________________________ JURISDICTION of


2001

In re: ___________________________________________________ Plaintiff /Appellants/


Petitioner/ Complainant

VERSUS

_________________________________________________Defendant/Respondent/
Accused

KNOW ALL to whom these present shall come that I/We ______________________
____________________________________________________________________ the
above named _______________________________________ do hereby appoint (herein
after called the advocate/s) to be my/our Advocate in the above noted case authorized him :-

To act, appear and plead in the above-noted case in this Court or in any other Court in which
the same may be tried or heard and also in the appellate Court including High Court subject
to payment of fees separately for each Court by me/ us.

To sign, file verify and present pleadings, appeals cross objections or petitions for execution
review, revision, withdrawal, compromise or other petitions or affidavits or other documents
as may be deemed necessary or proper for the prosecution of the said case in all its stages. To
file and take back documents to admit and/or deny the documents of opposite party.

To withdraw or compromise the said case or submit to arbitration any differences or disputes
that may arise touching or in any manner relating to the said case.To take execution
proceedings.
The deposit, draw and receive money, cheques, cash and grant receipts thereof and to do all
other acts and things which may be necessary to be done for the progress and in the course of
the prosecution of the said case.

To appoint and instruct any other Legal Practioner, authorizing him to exercise the power and
authority hereby conferred upon the Advocate whenever he may think it to do so and to sign
the Power of Attorney on our behalf.

And I/We the undersigned do hereby agree to ratify and confirm all acts done by the
Advocate or his substitute in the matter as my/our own acts, as if done by me/us to all intents
and purposes.And I/We undertake that I / we or my /our duly authorized agent would appear
in the Court on all hearings and will inform the Advocates for appearance when the case is
called.

And I /we undersigned do hereby agree not to hold the advocate or his substitute responsible
for the result of the said case. The adjournment costs whenever ordered by the Court shall be
of the Advocate which he shall receive and retain himself.

And I /we the undersigned do hereby agree that in the event of the whole or part of the fee
agreed by me/us to be paid to the Advocate remaining unpaid he shall be entitled to withdraw
from the prosecution of the said case until the same is paid up. The fee settled is only for the
above case and above Court. I/We hereby agree that once the fee is paid. I /we will not be
entitled for the refund of the same in any case whatsoever. If the case lasts for more than
three years, the advocate shall be entitled for additional fee equivalent to half of the agreed
fee for every addition three years or part thereof.

IN WITNESS WHEREOF I/We do hereunto set my /our hand to these presents the contents
of which have been understood by me/us on this ____________ day of ____________2002.

Accepted subject to the terms of fees.

Advocate Client Client


BIBLIOGRAPHY

 Drafting and Conveyancing, S.P.Aggarwal2005, Latest Reprint 2011


 Jhabvala H Noshirvan. drafting, pleading and conveyances and professional ethics. C.
Jamnadas, 2008
 Kafaltiya A.B. Textbook on Pleadings, Drafting &Conveyancing. Universal
publishers, 2010
 Kothari M ganpatlal. Drafting, conveyancing and pleading. N. M. Tripathi, 1977
 http://www.lawyersclubindia.com/articles/Discretion-in-granting-Bail-in-Non-
Bailable-Offences-5262.asp accessed on 11/03/2016.
 https://www.advocatekhoj.com/library/lawareas/bail/bailable.php?Title=Bail&STitle=
Bailable/%20non%20%96%20bailable%20offences accessed on 11/03.2016.
 http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%205.pdf
accessed on 10/03/2016.