Dr.

Ram Manohar Lohiya National Law University, Lucknow

DRAFTING OF BAIL APPLICATION

SUBMITTED BY
DHEERAJ DIWAKAR

Enrollment no.-200101062 Class of BA LLB Section- ‘A’ SEM- 6

Dr. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
IN
March 2023

Under the guidance of

Dr. Shakuntala Sangam
Assistant Professor
Dr. Ram Manohar Lohiya National Law University, Lucknow

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TABLE OF CONTENTS

ACKNOWLEDGEMENT .............................................................. 3

INTRODUCTION… ....................................................................... 4

GENERAL PROVISIONS ON BAIL ............................................. 5

FORMALITIES FOR THE FULFILEMENT OF GRANT OF

BAIL .................................................................................................. 7
FACTS OF THE CASE ................................................................... 9

BAIL APPLICATION FORMAT .................................................. 10

AFFIDAVIT ................................................................................... 13

CONCLUSION ............................................................................... 14

BIBLIOGRAPHY ............................................................................ 15

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Shakuntla Sangam for his guidance and constant supervision as
well as for providing necessary information regarding the project & for his support in
completing the project.

I would like to express my gratitude towards my parents and members of Madhu Limaye
Library for their kind co-operation and encouragement, which helped me in completion of
this project.

My thanks and appreciations go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the
improvement of my future projects.

Dheeraj Diwakar

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 INTRODUCTION
The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well
recognized principle among all the judicial systems of the world. 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. Courts have greater discretion to grant or deny bail in the case of
persons under criminal arrest.
According to section 436 of CrPC, If the offence alleged is bailable, then, the Accused is
entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to
Magistrates Court, before Magistrates court. In bailable offences bail is a right and not a favour.
In such offences there is no question of any discretion in granting bail. Bail can be claimed as
of right and there is a statutory duty imposed upon the Police Officer as well as the Court to
release a person on bail if he is prepared to give bail. Such a person can also be released on his
own bond in a fit case. It is only where the accused is unable to furnish bail then he should be
kept in detention. The Hon'ble Supreme Court in a case1 held that:
“As soon as it appears that the accused person is prepared to give bail, the police officer or
the court before whom he offers to give bail, is bound to release him on such terms as to bail
as may appear to the officer or the court to be reasonable. It would even be open to the officer
or the court to discharge such person on his executing a bond as provided in the Section instead
of taking bail from him”.
However, where the offences alleged are both Bailable and Non-Bailable, the offence would
be tried as Non Bailable offence, and benefit of securing Bail on the premise of Bailable offence
would not be available to the accused.

1
Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)

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GENERAL PROVISIONS ON BAIL

Provisions as regards bail can be broadly classified into two categories:

(1) bailable cases, and
(2) non- bailable cases.
In the former class, the grant of bail is a matter of course. It may be given either by the police
–officer in charge of a police – station having the accused in his custody or by the court. The
release may be ordered on the accused executing a bond and even without sureties (Sec. 436).
In non-bailable cases, the accused may be released on bail; but no bail can be granted where
the accused appears on reasonable ground to be guilty of an offence punishable either with
death or with imprisonment for life. But the rule does not apply to
(1) a person under sixteen years of age,
(2) a woman , or
(3) a sick or infirm person.
As soon as reasonable grounds for the guilt cease to appear, the accused is entitled to be
released on bail, the order with reasons therefore should be in writing.
A person released on bail may be taken into custody by order of the Court (s. 437). In the
same way the High Court or the Court of Session may admit a person to bail or reduce the
amount of the bail (ss. 439(1) and 440). As soon as the bail bond is executed, the accused is
entitled to be released from custody (s. 442). When the amount of bail taken is found to be
insufficient, the court may demand additional bail (s. 443). A surety who is once accepted is
at liberty to apply to the Court for his discharge; and the accused is then called upon to find
fresh sureties. (s. 444)

The discretionary power of the Court to admit to bail is not arbitrary, but is judicial, and is
governed by established principles. The High Court of Allahabad directed that when a
particular person surrenders and makes an application for bail, it should be directed to appear
on the date fixed with a further direction to the police not to arrest him till the disposal of his
bail application.2 But it does not mean that the bail application should be allowed invariably.
It may also be dismissed. Short term release or keeping good conduct during that period shall
not be sole ground for enlarging a person on bail finally. It should be decided on merits only.3

2
Rajendra Prasad v. State of U.P., (1989) 26 ACC 57 (All).
3
Hidayat Husain Khan (Dr.) v. State of U.P., 1992 Cr.L.J. 3534 (All).

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The object of the detention of a person is to secure his appearance to abide the sentence of
law, the principal inquiry is, whether a recognizance would effect that end. In seeking an
answer to this enquiry, Courts have considered the seriousness of the charge, the nature of the
evidence, the severity of punishment prescribed for the offence and, in some instances, the
severity of the punishment prescribed for the offence and in some instances, the character,
means and standing of the accused.4 Bail was refused by the Supreme Court to an authorized
dealer illegally dealing in foreign exchange, commonly known as Hawala transaction and
who had been instrumental in transferring huge sums to the militants of Jammu & Kashmir
for use in disruptive and terrorist activities, although there was every likelihood that
completion of investigation may take a long time. Bail was refused having regard to
seriousness of allegations against the accused.

Important factors to be considered while granting anticipatory bail in India

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and
exhaustive list of considerations while deciding anticipatory bail. They are as follows:-

• Gravity of crime and role of accused must be understood before the arrest.
• Previous record of accused, any imprisonment on conviction in respect of non
bailable offence, should be checked.
• Possibility that applicant will flee from justice.
• Chances of repetition of similar or other offences.

• Intention behind accusation is whether to injure or humiliate the applicant by arresting

him or her.
• Consider the exact role of the accused.
• Reasonable apprehension of tampering with evidence, witnesses and threatening the
complainant.

4
Nagendra Nath Chakravarti, (1923) 51 Cal 402.

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FORMALITIES FOR THE FULFILEMENT OF GRANT OF BAIL

A person accused of a bailable offence can demand to be released on bail as a matter of

right. This is provided for by Section 436.

Section 436 - When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station, or appears or
is brought before a court, and is prepared at, any, time while-in the custody of such officer or
at any stage of the proceeding before such court to give bail, such person shall be released on
bail.5

Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such
person, discharge him on his executing a bond without sureties for his appearance.

Section 50(2) imposes an obligation on the police officer to notify the detained person about
his right to get bail if he is detained on a bailable offence. The right to bail cannot be nullified
by imposing a very high amount for bail. Section 440(1) specifically provides that the amount
of bail cannot be unreasonably high. An amendment to Section 436 mandates that an indigent
person, who is unable to provide any bail amount, must be released. If a person is unable to
provide bail amount for a week, then he can be considered indigent. Section 436 A allows a
person to be released on his own surety if he has already spent half the maximum sentence
provided for the alleged crime in jail. However, this does not apply if death is one of the
punishments specified for the offence. Execution of bond by the arrested person
himself. Such bond is executed without surety. But nothing in CRPC prevents magistrate to
order for execution of bond with surety. So according to the fact and circumstances of the
case, if the magistrate deems fit, he can order to execute bond with surety. When bond is
executed by the arrested person, he is duty bond to appear before the Court as and when
required.

At the time of granting bail to any person, the bail granting authority must be satisfied that:

1. the accused appears to be innocent, i.e. he has most probably not committed the
offence.

2. that further enquiry for the offence is required to be conducted to find out whether
he has committed the offence.

5
Section 436 Code of Criminal Procedure, 1973

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 3. the offence is not a major one, i.e. it is not an offence punishable with death, life
imprisonment or imprisonment up to 10 years.

Sub-section (2) of section 436 lays down the conditions under which bail may be refused
even if the offence is of bailable nature. If a person fails to comply with the conditions of
appearance as laid down in the bail-bond, he may, in any subsequent occasion in the same
case, if arrested or brought before the court, be refused bail.

Standard conditions while granting anticipatory bail

• Accused should present himself / herself for interrogation by the investigation office as
and when asked to appear.
• Accused should not directly or indirectly try to induce, threaten, or promise to any person
related to the case who knows the facts of the case, so that he can be dissuaded from
disclosing the fact to the court or investigation officer.
• Accused should not leave the country with prior permission of the court.
• Any other condition which the honourable court deems fit.

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 FACTS OF THE CASE

The petitioner is a resident of KeonjharHe is a paid lorry driver under Sri Shatam of
Keonjhar. On 4-5-1997 at 4.00 p.m. while the petitioner was driving his lorry from
Keonjhar to Jalrampur, an accident occurred near NSTL at Visakhapatnam. When XY
suddenly crossed the road without regard to the traffic, the petitioner's lorry dashed against
XY despite the best efforts of the petitioner to avoid the accident. It resulted in the death of
XY. Though the petitioner was not at fault, he informed police about the accident.

The Police registered a case under Section 304-A IPC for the offence of causing death by
rash or negligent act and arrested the petitioner on the evening of 4-5-1997.

The Honorable Court passed an order, remanding the petitioner for fourteen days when he
was produced before the Court on 5-5-1997.

An application is filed before the Honorable Court to release the accused on bail.

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 BAIL APPLICATION FORMAT

APPLICATION UNDER SECTION 436 OF CR PC FOR THE GRANT OF BAIL

In the Court of Judicial First Class Magistrate, Gorakadhanda, at Jalrampur.,

Cr.M.P. No. ................ of 1997

in

Crime No. .............. of 1997

(Of the Police Station Keonjhar).

Between:

Faizal Khan son of Syed Ahmad Khan, aged about 50 years, Occupation Business,
resident of 8-2-840, Chauri Sadak, Keonjhar, Gorakadhanda.
...........................................................................................................Petitioner/Accused

and

The State of Andhra Pradesh, represented by Station House

Officer, Keonjhar, Police Station.................................................... Respondent/Respondent

BAIL PETITION FOR THE OFFENCE UNDER 304-A., I.P.C. May it please your honour.

1. That the petitioner is a resident of Chauri Sadak. He is a paid lorry driver under Sri Shatam
and of Keonjhar. On 4-5-1997 at 4.00 p.m. while the petitioner was driving his lorry from
Keonjhar to Jalrampur, an accident occurred near NSTL at Visakhapatnam. When XY
suddenly crossed the road without regard to the traffic, the petitioner's lorry dashed against
XY despite the best efforts of the petitioner to avoid the accident. It resulted in the death of

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XY. Though the petitioner was not at fault, he informed police about the accident.
Application of bail under Section 436 of Cr.P.C .

2. That the Police registered a case under Section 304-A IPC and arrested the petitioner on
the evening of 4-5-1997. This Honorable Court was pleased to remand the petitioner for
fourteen days when he was produced before the Court on 5-5-1997.

3. That the petitioner is an innocent person. He is a poor man, with driving as his only means
of livelihood and has to maintain himself, his wife and two children at present. The
petitioner's wife is carrying now. The petitioner has a fixed place of abode at Keonjhar.
There is no intention or scope for the petitioner to escape from the jurisdiction of the Court if
the petitioner is released on bail. The offence alleged against the petitioner is a bailable
offence.

4. That the applicant is willing to furnish surety and bail bonds to the satisfaction of this
learned court in case he is ordered to be released on bail. The applicant is also willing to join
the investigations and bind himself by the terms and conditions laid down by the law or by
this Hon'ble court. It is further submitted that the applicant is not at all required for the
investigations. However, if the applicant is required for investigation, the applicant/accused
undertakes to be present as and when required in accordance with the law.

5. That neither any recovery is to be effected from the applicant nor the applicant is in a
position to temper with the prosecution evidence. The applicant will associate with the
investigation whenever required to do so.

6. The petitioner also submits that he did not file any bail application in any other Court.

It is, therefore, most respectfully prayed that:-

(a) That the applicant may be ordered to be released on bail and this application for bail may
kindly be allowed;

(b) That till the decision of this application interim bail may be granted to the applicant;

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(c) That the directions may be issued to the police to get the applicant/accused medically
examined at the immediately;

(d) Such other orders be also passed in favour of the applicant as deemed fit and proper in the
facts and circumstances of the case and in the interest of justice.

Jalrampur.

Dt.: 25-5-'97 Counsel for petitioner

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 AFFIDAVIT

In the Court of Judicial First Class Magistrate, Gorakadhanda, at Jalrampur.

Faizal Khan son of Syed Ahmad Khan, aged about 50 years, Occupation Business, resident of
8-2-840, Chauri Sadak, Gorakadhanda ........................................................ Petitioner/Accused

and

The State of Andhra Pradesh, represented by Station House

Officer, Chauri Sadak, Police Station. ................................................ Respondent/Respondent

Affidavit in support of the application under Section 436 of CrPC

I, Faizal Khan, do hereby solemnly affirms and declare as under:-

1. That the accompanying application under section 436 CrPC has been drafted at my
instance and under my instruction.

2. That the contents of paras 1 to 6 are true and correct to the best of my knowledge.

3. That I further solemnly affirm and declare that this affidavit of mine is correct and true, no
part of it is false and nothing material has been concealed therein.

Affirmed here at Chauri Sadak on 15/02/17.

Faizal Khan

Deponent

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 CONCLUSION

The objective behind enacting Section 438 is to safeguard the liberty of a person. The need
for anticipatory bail arises mainly when any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence. Anticipatory bail is
concerned with the liberty of a person and presumes their innocence. It was held in the case
of Gurbaksh Singh Sibbia vs. the State of Punjab by a five-judge Supreme Court bench led by
then Chief Justice Y V Chandrachud that Section 438 (1) is to be interpreted in the light of
Article 21 of the Constitution. While Courts have time and again emphasised the need to
uphold the liberty of individuals and protect them from arbitrary arrests, one needs to
remember that anticipatory bails are not a matter of right like other types of bail.

Bail is a right and refusal is an exception. However, the courts can impose the conditions
while granting bail. But the conditions should not be unreasonable. Courts have also power to
cancel bail. But power to cancel bail in non-bailable offences must be used sparingly. It is the
duty of the Magistrate to dispose of the bail application as early as possible.

Bail is an important check and balance to ensure that no innocent person is punished until
proven guilty. But the complicated system of bail in the country’s criminal law system often
fails to appreciate it. Grant or refusal of bail depends on factors that are remotely connected
with the merit of the case. The recommendations of the Law Commission in its 268th
report on bail reforms are important and they should be implemented so that a fair and
transparent system of bail evolves in our criminal law system. This would go a long way in
upholding the rights of life and liberty enshrined in the Indian Constitution.

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 BIBLIOGRAPHY
BOOKS
1. J.P. Agarwal, Pleadings in India Vol. 1: Principles and Precedents, 2nd Edition- Delhi Law
House.
2. B.N. Banerjee, Criminal Pleadings: Law, Practice and Procedure 3rd edition: The Law
Book Co. Pvt ltd.
3. P.C. Mogha, The Law of Pleadings in India with Precedents, 16th Edition Calcutta Eastern
Law House.
4. M.R. Mallick, Ganguly’s Civil Court: Practice and Procedure.

WEBSITES
1. http://www.hhl.co.za/blog/71-formal-bail-applications
2. https://blog.ipleaders.in/anticipatory-bail-application-beginners-guide/
3. http://www.barnardinc.co.za/criminal-defence-and-bail-applications

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