DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2017-2018

Drafting of Pleadings and Conveyancing

PROJECT
On
APPLICATION FOR BAIL

SUBMITTED TO: SUBMITTED BY:

Mrs. Shakuntala Sangam Kanishk Gautam

Assistant Professor (Law) Section-A

Dr. RMLNLU Roll No. 65

B.A.LLB (hons.)

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 Table of Contents

 Introduction
 Definition of bail
 Purpose of Bail
 Bail in Bailable Offences
 Bail in non-Bailable Offences
 Bail for Under Trial Prisoners S.436 (A)
 Application for Bail
 Conclusion
 Bibliography

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INTRODUCTION

Under Article 21 of Indian Constitution guarantees that life and liberty of a person cannot be
taken except in accordance with procedure established by law. Since arrest is one of the
procedures of law to restrict the liberty of a person while bail is balancing procedure of law to
protect the interest of person so arrested or apprehending arrest.

The term 'bail' has not been statutorily defined either in Cr.P.C or in any other statute.
Conceptually it is understood as a right for assertion of freedom against state imposing
restraints the dictionary meaning of the expression 'bail' denotes a security for appearance of a
prisoner for his release. Bail may thus be regarded as a mechanism whereby the state devolves
upon the community, the function of securing the presence of the prisoners and at the same
time involves participation of the community in administration of justice.1

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.

This paper seeks to analyze the law in respect of bail along with a format of application for
bail.

1
2009(2)PLJR 35 SC

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BAIL

In India, the Criminal Procedure Code, 1973, does not define bail, although the terms bailable
offence and non-bailable offence have been defined in section 2(a) in Cr.P.C. as " Bailable
offence means an offence which is shown as bailable in the First Schedule or which is made
bailable by any other law for the time being enforce, and non-bailable offence means any
other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in
criminal cases. The amount of security that is to be paid by the accused to secure his release
has not been mentioned in the Cr.P.C.

Generally bail under Cr.P.C is divided into two categories

a) Regular Bail
When a person is granted bail by the court after arrest is called regular bail. The
appearance of a person before a court can be either through arrest by an officer in charge
or by surrendering voluntarily.

And it further classified as:  Before conviction and  after conviction.

b) Anticipatory Bail

Under Section 438 Cr.P.C. gives power for grant of anticipatory bail. The term
anticipatory bail is not defined either in Cr.P.C or in any statute. However anticipatory
bail is commonly understood as an order directing release of any person on bail after
execution of bond in the event of his arrest in connection with a particular case.

Purpose of Bail

The principal purpose of bail is to ensure that an accused person will return for trial if he is
released after arrest. At the pre-trial stage, every accused person is presumed to be innocent
until the matter is finally disposed of by a competent court. Simply because a person has been
charged with an alleged offence, he does not lose his right to protection of life and personal
liberty. He has, till the final disposal of the case against him, the same right as enjoyed by any
other citizen under the Constitution of India, and other provisions of the law of the land. That

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is why various High Courts and Supreme Court of India have held in their judgments that
“grant of bail is a rule and refusal is an exception”.

The Supreme Court advocated the main purpose behind the grant of bail in the case of A. R.
Antulay Vs. R. S. Nayak2 , was that the consequences of long detention of the pre-trial
accused person (who are presumed to be innocent as any other citizen) detention should be as
short as possible; undue delay may well result in impairment of the ability of the accused to
defend himself, whether on account of death, disappearance or non- availability of witnesses
or otherwise. The other reason for granting bail is that a man on bail has better chance to
prepare and present his case than in custody. Bail not jail is the principle rule regarding the
bail.3 The purpose of keeping a person in custody is to ensure his appearance in Court at the
time of trial and that he is also made available for the purpose of execution of the sentence.
The purpose is not penal in character.4 A provision which curtails personal liberty should be
most strictly construed in favour of the subject and the safeguards provided for protection of
citizen’s liberty must be liberally interpreted and applied.5 The approach of the court in the
matter of bail is not that the accused should be detained by way of punishment but whether
the presence of the accused would be readily available for trial or that he is likely to abuse the
discretion granted in his favour by tampering with evidence.6

Bail in Bailable Offence (S.436)

The first Schedule of Cr. P.C. consists of two parts, the first part is regarding the offences
under the I.P.C. and second part is regarding offences against other law. The second part
provides that if the offence is punishable with imprisonment for less than three years of fine
only it shall be bailable and can be tried by any Magistrate.7

This section entitles a person other than a person accused of non-bailable offences to be
released on bail. As soon as it appears that the accused person is prepared to give bail, the

2 (1992) 1 SCC 225 (280)

3 State of Rajasthan v Balchand AIR (1977) SC 2447
4 Satyan v. State, 1981 Cri LJ 1313 at p. 1315 (Ker)
5 Mari Appa v. State of M.P., 1990 Cri LJ 1990 at p. 1992 (MP)
6 State v. E. Veeramani, 1994 Cri LJ 184 at p. 187 (Mad)
7 Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 a p. 2915 (All).

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police officer or the court, before whom he offers bail is bound to release him on such terms
as to bail as may appear to the officer or to the court to be reasonable.8

Where the Court directed the accused, who had allegedly committed a bailable offence
relating to illicit distilled liquor punishable under Section 47 of Bihar and Orissa Excise Act,
1915, to be released on bail of Rs. 2,000 with one surety for the like amount and to deposit
cash security of Rs. 2,000 on the ground of there being likelihood of his absconding, it was
held that the direction to furnish cash security in addition to bail bond of other surety was
clearly untenable.9

It may be pointed out that S. 436 Cr. P.C. has been amended by Act No. 25 of 2005 to ensure
that a poor person does not have to remain in custody in a bailable offence due to not being
able to furnish sufficient sureties. by the aforesaid amending Act No. 25 of 2005, to raise a
presumption in favour of a person being an indigent person, if he is not able to furnish bail
within a week of the date of arrest. This implies that if a person is unable to furnish bail
without a week of the date of arrest, he may be presumed to be an indigent person and
accordingly, he may be released on his personal bond without sureties.

Bail in non-bailable Offence S.167 (2)

When investigation is not completed within 60 days, in offences punishable with less than 10
years of imprisonment or where an offence is punishable with death or imprisonment for life
or for a term of 10 years or more at the expiry of the respected days, the accused person shall
be released on bail if he furnishes to do so.

It was held in Bipin Shantilal Panchlal v State of Gujrat10 that if an accused person fails to
exercise his right to be released on bail for failure of the prosecution to file the charge sheet
within the maximum time limit allowed by proviso to section 167(2), he cannot contend that
he had an indefeasible right to exercise it at any time notwithstanding the fact that in the
meantime the charge sheet is filed but on the other hand if he exercise the right within the
time allowed by law and is released on bail under such circumstances he cannot be rearrested

8 R.V. Kelkar Criminal Procedure (2015) p. 292

9 Anwar Hussain v. State of Orissa, 1995 Cri LJ 863 at p. 866 (Ori)
10 1996 Cr.L.J.1652

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on the mere filing of charge sheet. It was held in CBI v Nazir Ahmed Sheik that the period of
limitation under section 167 (2) is to be counted from the date of arrest.11

Section 437 gives the court or police officer the power to release n accused person on a bail
even in non-bailable offence.If the offence is non-bailable, the Court should decide the
question of granting the bail in the light of considerations namely, the nature and seriousness
of the offence, a reasonable possibility of the presence of the accused being secured at the
trial, a reasonable apprehension of the evidence is tampering with and the quantum of
punishment.12 But it was held Venkettaramanappa v st. of Karnataka because merely the
offence alleged to the petitioner is punishable with death or imprisonment for life, this will
not be sufficient ground for granting the bail.13

A person cannot be admitted to bail if he is forwarded to a court which is not competent to

try him.14 It has, however, been held in Ahmad v. Crown15 that in non bailable case an
accused can be released on bail at the pre-trial stage. There is no hard and fast rule in the
matter of granting or refusing bail with reference to offences under which the crime is
registered. The exercise of power with regard to bail is a judicial act and not a ministerial
one.16

Except in case of children women and sick persons the discretion to grant bail has been taken
away by the proviso of section 437 in case of non bailable offences punishable with death or
life imprisonment. But a mere fact that the accused is below 16 or sick or woman does not
guarantee for bail under Cr.P.C.17

In Jayandra S. Swamygal V. State of Tamilnadu & Prasanth Kumar Sarkar V. Asish

Chaterjee18 , the Apex Court held that even in case of non bailable offences also the court
while exercising its discretionary power under sec. 437 of Cr.P.C can grant bail. But that
power should be exercised fairly, justly & reasonably.

11 1996 Cr.L.J. 1876 SC

12 Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal)
13 1992 Cr.L.J. 2268 Karn.
14 Ghulam Mohd v. State, AIR 1959 MO 147
15 AIR 1950 Lah. 1951.
16 Govinda Parshad v. State, 1975 Cr. L.J. 1249, 1255 (Cal)
17 Nirmal Kumar Banarjee v State 1972 Cr. L.J (1582 (Cal)
18 2011) Cr. L.J. 302 SCC

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Offences where punishment is 7 years or more or offences non bailable under IPC or
abetment or conspiracy or attempt to commit any such offence , then the court shall impose
certain conditions on his release on bail. They are as follows:

a) Such persons shall not commit similar offence,

b) Shall attend in accordance with the conditions of bail,

c) Shall not make any threat or inducement or promise directly or indirectly to any person,
acquainted with the facts of the case or tamper the evidence.

Bail for Under Trial Prisoners S.436 (A)

In Moti Ram and Ors. v State of M.P19 the accused who was a poor mason was convicted. In
this case the CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and
bond and further refused to allow his brother to become a surety as his property was in the
adjoining village. He went on appeal once more to the apex court and Justice Krishna Iyer
condemned the act of the CJM, and said that the judges should be more inclined towards bail
and not jail.

The new provision Section 436A was introduced in order to solve the problems of „under
trials‟ who were languishing in jails as they will now be given an opportunity to be set free
instead of endlessly waiting for their trial to take place. This provides a makeshift
arrangement of providing justice and relief to under trial prisoners. For this purpose section
436 A has been inserted to the Code. According to the section, during the period of
investigation inquiry, trial or a person who has undergone detention for a period extending up
to half of the maximum period of imprisonment imposed for a particular offense i.e. not
punishable with death, shall be released on her/his personal bond with or without sureties.

19 AIR 1978 SC 1594

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Application for Bail

IN THE COURT OF ____________, ADDITIONAL DISTRICT AND SESSION JUDGE,

_____________ COURTS, ____________
IN THE MATTER OF:
LMN, ___________, Son of _________________ Years of Age, Working as _____ Residing
at __________
........... Petitioner
Versus
State of_________ Through PQR, Son of _________, ____ Years of age, Working as
__________ Residing at _______________
...........Respondent
FIR No.: ___________
U/s: ___________
P.S.: ___________

APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL

PROCEDURE 1973 FOR GRANT OF BAIL
Most Respectfully Show:
1. That the present application under section 439 of the Code of Criminal Procedure 1973
is being filed by the Petitioner for seeking grant of bail in FIR No. _________ registered
at Police Station_______________. The present petition is being moved as the
Petitioner has been arrested on _________ (give date) in connection with the said FIR.
The petitioner is now in judicial/police custody.
2. That the Petitioner is innocent and is being falsely implicated in the above said case
as he has nothing to do with the matter.
3. That the Petitioner is a law abiding citizen of India. The petitioner is gainfully carrying
on the business of ________ at ________. (Give details).
4. That the Petitioner is a responsible person and is living at the above mentioned
address.
5. (Give all other relevant facts, which have led to the arrest or which show the
petitioner's innocence or disassociation with the alleged offence supposed to have been
committed)
6. That the Petitioner is innocent and no useful purpose would be served by keeping him
under custody and this is a fit case for grant of bail. (It would be pertinent to mention
as to the stage of investigation or in case the charge sheet has been filed, whether

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 charges have been imposed, evidence has started, the length of the list of witnesses cited
by the prosecution etc. as these would all be mitigating circumstances)
7. That the Petitioner undertakes to abide by the conditions that this Honorable Court
may impose at the time of granting bail to the Petitioner and further undertakes to attend
the trial on every date of hearing.
8. That the Petitioner has not filed any other similar petition before this or any other
Honorable Court for grant of bail in case of the present FIR. (Or give details and results
of earlier applications)

PRAYER:
In view of the above stated facts and circumstances it is most respectfully prayed that this
Honorable Court may be pleased to
a. Grant bail to the Petitioner in connection with FIR No. ________ registered under
section ________, for the offence of ________ (give sections) at Police Station
_________ (give place).
b. Pass any other such order as this Honorable Court may deem fit and proper in the
interest of justice.
LMN........Petitioner
Through
ABC.........Counsel
Place:
Dated:

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CONCLUSION

The police in India have to perform a difficult and delicate task, particularly in view of the
deteriorating law and order situation, communal riots, political turmoil, student unrest,
terrorist activities, and among others the increasing number of underworld and armed gangs
and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers,
smugglers who have organized gangs, have taken strong roots in the society.

It is being said in certain quarters that with more and more liberalization and enforcement of
fundamental rights, it would lead to difficulties in the detection of crimes committed by such
categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that
if Court lay too much of emphasis on protection of their fundamental rights and human rights,
such criminals may go scot-free without exposing any element or iota of criminality with the
result, the crime would go unpunished and in the ultimate analysis the society would suffer.

The concern is genuine and the problem is real. To deal with such a situation, a balanced
approach is needed to meet the ends of justice. The operational mode of bail has also shown
that amongst other defects the system of bail suffers from a property oriented approach which
seems to proceed on the erroneous assumption that "the risk of monetary loss is the only
deterrent against fleeing from justice.

Another problem that Indian judiciary faces is increase in the number of under trial prisoners.
Large scale poverty amongst the majority of the population in our country and fragmentation
of land holdings is a common phenomenon in rural India. A family consisting of around 8 or
10 members depends on a small piece of land for their subsistence, which also is a reason for
disguised unemployment. When one of the members of such a family gets charged with an
offence, the only way they can secure his release and paying the bail is by either selling off
the land or giving it on mortgage. This would further push them more into the jaws of
poverty. This is the precise reason why most of the under trials languish in jail instead of
being out on bail.

A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice
system. Even though the courts in some cases have tried to intervene and also have laid down
certain guidelines to be followed but unfortunately nothing has been done about it. There is

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also a strong need felt for a complete review of the bail system keeping in mind the socio-
economic condition of the majority of our population. While granting bail the court must also
look at the socio-economic plight of the accused and must also have a compassionate attitude
towards them.

BIBLIOGRAPHY

BOOKS

1. Manish Sathish, Discretion discrimination and the rule of law- Cambridge University Press, 2015

2. R. Sharma Human Rights and Bail, APH Publication 2002

3. A. Ashuthosh, Four Threats to the Presumption of Innocence Google Lib. 2006

4. R.V. Kelkar, Criminal Procedure, Eastern Book Company 2015

5. S.N. Mishra, the Code of Criminal Procedure, CL Publications 2006

6. H.P. Thripathi, Criminal Procedure Code Google lib. 2016

WEBSITES/JOURNALS

http://www.advocatekhoj.com/

https://indiankanoon.org/

http://lawcommissionofindia.nic.in/reports/177rptp2

http://www.lawyersclubindia.com/

http://www.legalserviceindia.com/

http://www.orfonline.org/

http://shodhganga.inflibnet.ac.in/

http://nujslawreview.org/

http://www.legallyindia.com/

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