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CHAPTER I
1. INTRODUCTION
CHAPTER II
CHAPTER III
CHAPTER IV
CHAPTER V
5. CANCELLATION OF BAIL
CHAPTER VI
CHAPTER VII
7. CONCLUSION
BIBLIOGRAPHY
LIST OF CASES
Cases
Hussainara Khatoon and others v. Home Sec,State of Bihar AIR 1979 SC 1360. ................. 10
Maneka Gandhi v Union of India AIR 1978 SC 571............................................................... 10
Moti Ram and Ors. v State of M.P, AIR 1978 SC 1594 .......................................................... 10
Public Prosecutor v. George Williams, 1951 Mad 1042. ........................................................ 12
Rasik Lal v Kishore,(2009) 4 SCC 446...................................................................................... 7
State of Rajasthan v Balchand, AIR 1977 SC 2447. ............................................................... 10
CHAPTER I
1. INTRODUCTION
According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail,
although the terms bailable offense and non-bailable offense have been defined in Section
2(a) Cr.P.C. as follows: "Bailable offense means an offense 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 offense means any other offense". The schedule refers to all the offenses
under the Indian Penal Code and puts them into bailable and on bailable categories. The
analysis of the relevant provisions of the schedule would show that the basis of this
categorization rests on diverse consideration. However, it can be generally stated that all
serious offenses, i.e. offenses punishable with imprisonment for three years or more have
seen considered as non bailable offenses. Further, Sections 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. Thus, it is the
discretion of the court to put a monetary cap on the bond.
It must be further noted that a person accused of a bailable offenses is arrested or detained
without warrant he has a right to be released on bail. But if the offense is non-bailable that
does not mean that the person accused of such offense shall not be released on bail: but
here in such case bail is not a matter of right, but only a privilege to be granted at the
discretion of the court.
The Code of Criminal Procedure, 1973, makes provisions for release of accused persons
on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses.
Section 436 provides that when person not accused of a non-bailable offense is arrested or
detained he can be detained as right to claim to be released on bail. The section covers all
cases of persons accused of bailable offences cases though not accused of any offense but
against whom security proceedings have been initiated under Chapter VIII of the Code and
other cases of arrest and detention which are not in respect of any bailable offense. This
section entitles a person other than the accused of a non-bailable offense to be released on
bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such
a person without a warrant to inform him his right to be released on bail.
CHAPTER II
BAILABLE OFFENCES
DEFINITION
Section 2(a) of CrPC defines bailable offences as the offence that has been shown in the
First Schedule as bailable or which is made bailable by any other law for the time being in
force.
The first schedule of the CrPC is divided into two parts wherein the first part deals with the
offences given under IPC and the second part deals with the offences under other laws. As
per the last item of the First Schedule, an offence in order to be bailable would have to be
an offence which is punishable with imprisonment for less than three years or with fine
only.
Some of the common bailable offences are: Simple Hurt (Section 337; IPC), Bribery
(Section 171E; IPC), Public Nuisance (Section 290; IPC), Death by Rash or Negligent Act
(Section 304A; IPC).
In the case of Rasik Lal v Kishore1, Supreme Court held that, in case a person is arrested
for any bailable offence, his right to claim bail is absolute and indefeasible and if the person
accused is prepared, the court or the police as the case may be will be bound to release
him on bail.
PROCEDURE
In order to apply for a bail in the case of a bailable offence, the person needs to fill a form
of bail i.e. Form No. 45 which is given in the first schedule and apply for bail and the Court
will have to grant bail.
NON-BAILABLE OFFENCES
DEFINITION
As per Section 2(a) of CrPC, non-bailable offence includes all those offences which are not
included in bailable offence in the First Schedule. Further, the First Schedule in its Second
part at its end has defined non-bailable offence as the offences which are punishable with
death, imprisonment of life or imprisonment for more than seven years.
A person accused of a non-bailable offence doesn’t have right to be released on bail but
the bail can be granted at the discretion of the court, subject to certain conditions given in
Section 437 of CrPC. If a person is arrested on accusation of commission of any non-
bailable offence, then the person will not be released on bail if there appears a reasonable
ground that the person is guilty of an offence punishable with death or imprisonment of
1
Rasik Lal v Kishore,(2009) 4 SCC 446.
life. A person accused with an offence punishable with death or imprisonment of life can
be released on bail if the person is:
Attend the Court in accordance with the conditions of the bond executed.
Not commit any offence similar to the offence of which he is accused or suspected.
In the case triable by Magistrate, if the trial of a person accused with a non-bailable offence
is not concluded within a period of sixty days, such person will be released on bail.
The condition for granting the bail is that the person needs to be in custody during whole
period. If the bail is not granted to such a person, the reason for not granting the bail will
be recorded in writing by the Magistrate. Further, if the person accused of non bailable
offence is granted bail because of any of the conditions mentioned above, the authority
granting the bail will have to record the reason in writing.
CHAPTER III
JUDICIAL TREND
2
State of Rajasthan v Balchand, AIR 1977 SC 2447.
Hon'ble Supreme Court under Art. 136 of the Constitution
through a special leave petition. The accused was directed to
surrender by the court. He then filed for bail. It was then
for the first time that Justice Krishna Iyer raised his voice
against this unfair system of bail administration. He said
that though while the system of pecuniary bail has a tradition
behind it, a time for rethinking has come. It may well be
that in most cases an undertaking would serve the purpose.
In Moti Ram and Ors. v State of M.P3, the accused who was a
poor mason was convicted. The apex court had passed a sketchy
order, referring it to the Chief Judicial Magistrate to
enlarge him on bail, without making any specifications as to
sureties, bonds etc. 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. MR 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.
3
Moti Ram and Ors. v State of M.P, AIR 1978 SC 1594
4
Maneka Gandhi v Union of India AIR 1978 SC 571.
poor that they would find it difficult to furnish bail even
if it's a small amount.
CHAPTER IV
Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In
such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant
bail. First Schedule to the Code provides the list of bailable and non-bailable offenses.
Further cases often arise under S. 437, where though the court regards the case as fit for the
grant of bail, it regards imposition of certain conditions as necessary in the circumstances.
To meet this need sub-section (3) of S. 437 provides:
(a) In order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this Chapter, or (b) In order to ensure that such person shall not
commit an offence similar to the offence of which he is accused or of the commission of
which he is suspected, or (c) Otherwise in the interests of Justice.
1) The power to impose conditions has been given to the court and not to any police officer
5
Hussainara Khatoon and others v. Home Sec,State of Bihar AIR 1979 SC 1360.
2) The power to impose conditions can only be exercised –
Where the offence is punishable with the imprisonment which may extend to
seven years or more or,
Where the offence is one under Chapter VI (Offences against the State), Chapter
XVI (offences against the human body), or Chapter XVII (offences against the
property) of I.P.C, or
Where the offence is one of the abetment of or conspiracy to or attempt to
commit any such offence as mentioned above in (i) and (ii).
CHAPTER V
5. CANCELLATION OF BAIL
According to S. 437(5), any court which has released a person on bail under (1) or sub sec
(2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and
committed to custody.
The power to cancel bail has been given to the court and not to a police officer. Secondly,
the court which granted the bail can alone cancel it. The bail granted by a police officer
cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation,
the powers of the High Court or Court of Session under S. 439 will have to invoke.
Rejection of bail when bails applied for is one thing; cancellation of bail already granted is
quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a
bail granted in such case. Cancellation of bail necessary involves the review of a decision
already made and can large be permitted only if , by reason of supervening circumstances
it would be no longer conducive to a fair trial to allow the accused to retain his freedom
during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise
of judicial discretion can be cancelled even if there is absence of supervening
circumstances. If there is no material to prove that the accused abused his freedom court
may not cancel the bail.
In Public Prosecutor v. George Williams6, the Madras High Court pointed out five cases
where a person granted bail may have the bail cancelled and is recommitted to jail:
(a) Where the person on bail, during the period of the bail, commits the very same offence
for which is being tried or has been convicted, and thereby proves his utter unfitness to be
on bail;
(b) If he hampers the investigation as will be the case if he, when on bail; forcibly prevents
the search of place under his control for the corpus delicti or other incriminating things;
(c) If he tampers with the evidence, as by intimidating the prosecution witness, interfering
with scene of the offence in order to remove traces or proofs of crime, etc.
(d) If he runs away to a foreign country, or goes underground, or beyond the control of his
sureties; and
(e) If he commits acts of violence, in revenge, against the police and the prosecution
witnessed & those who have booked him or are trying to book him.
CHAPTER VI
6
Public Prosecutor v. George Williams, 1951 Mad 1042.
439 gives special powers to HC and Court of Session to release
a person on bail (after imposing certain conditions), and so
an application may be made to HC or Court of Session as well
if the person is under arrest. No Verification, Notary, and
Affidavit required.
Bail laws in India are described under Section 437, 438, 439 of Code of Criminal
Procedure, 1973. A brief description of the aforesaid sections is given hereunder for ready
reference:
Section 437 of Code of Criminal Procedure, 1973 contemplates that any person
arrested or detained in a non-bail able offence, the Court other than Sessions Court
may grant him bail.
Section 438 of Code of Criminal Procedure, 1973 contemplates that the Session
Court or the High Court may grant anticipatory bail to a person apprehending arrest.
Section 439 of Code of Criminal Procedure, 1973 contemplates that the Sessions
Court or the High Court can grant bail to a person who has been arrested.
Bail laws in India are very complicated as the bail to any accused person is at the discretion
of the court which considers the facts of the case, the conduct of the accused, and the
background of the accused, the law and several other factors. The role of a lawyer in getting
bail from the court becomes very important as the accused can be confined to judicial
custody if the case is not properly presented and contested before the court by a competent
lawyer.
STATE
VS
(Mention the name of the applicant)
Accused under custody since: (Give the date on which accused has been arrested)
(Name of the applicant of the bail along with his fathers name, address and other details)
MOST RESPECTFULLY SUBMITTED AS UNDER:
1. That the present FIR has been registered on false and bogus facts. The facts stated in the
FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant and arrested him in the present case,
the applicant is a respectable citizen of the society and is not involved any criminal case.
3. That the facts stated in the complainant against the applicant are civil disputes and does
not constitute any criminal offence at all.
4. That the applicant is not required in any kind of investigation or any kind of custodial
interrogation is required, nor is any recovery to be made at the instance of the applicant.
5. That the applicant is having very good antecedents, he belongs to good family and there
is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
7. That the applicant undertakes to present himself before the police/court as and when
directed.
8. That the applicant undertakes that he will not, directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses in
any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.
PRAYER
It is therefore prayed that the court may order for the release of the applicant on bail in the
interest of justice.
Any other order which the court may deem fit and proper in the facts and circumstances of
the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
BEFORE THE DISTRICT AND SESSIONS JUDGE COURT AT (give the name of the
District Court where the anticipatory bail application format India is being filed)
IN THE MATTER OF
STATE
vs
(Mention the name of the accused)
Under Section: (Mention the sections under which the FIR has been filed)
1. That the present FIR has been registered on false and bogus facts. The facts stated in the
FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant in the present case, the applicant is a
respectable citizen of the society and is not involved any criminal case.
3. That the facts stated in the complainant against the applicant are civil disputes and does
not constitute any criminal offence at all.
4. That the applicant is not required in any kind of investigation nor any kind of custodial
interrogation is required.
5. That the applicant is having very good antecedents, he belongs to good family and there
is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
7. That the applicant undertakes to present himself before the police/court as and when
directed.
8. That the applicant undertakes that he will not, directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses in
any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.
12. That the Court below has failed to consider all the facts and circumstances of the case
and has wrongly dismissed the anticipatory bail application.
It is therefore prayed that the court may direct the release the applicant on bail in the event
of his arrest by the police.
Any other order which the court may deem fit and proper in the facts and circumstances of
the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
BEFORE THE HIGH COURT AT (give the name of the High Court where the anticipatory
bail application format India is being filed)
IN THE MATTER OF
STATE
vs
(Mention the name of the accused)
Under Section: (Mention the sections under which the FIR has been filed)
1. That the present FIR has been registered on false and bogus facts. The facts stated in the
FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant in the present case, the applicant is a
respectable citizen of the society and is not involved any criminal case.
3. That the facts stated in the complainant against the applicant are civil disputes and does
not constitute any criminal offence at all
4. That the applicant is not required in any kind of investigation nor any kind of custodial
interrogation is required.
5. That the applicant is having very good antecedents, he belongs to good family and there
is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
7. That the applicant undertakes to present himself before the police/court as and when
directed.
8. That the applicant undertakes that he will not, directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses in
any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.
12. That the Court below has failed to consider all the facts and circumstances of the case
and has wrongly dismissed the anticipatory bail application.
It is therefore prayed that the court may direct the release the applicant on bail in the event
of his arrest by the police.
Any other order which the court may deem fit and proper in the facts and circumstances of
the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
BEFORE THE DISTRICT AND SESSIONS JUDGE COURT AT (give the name of the
District Court where the bail application format India is being filed)
IN THE MATTER OF
STATE
vs
(Mention the name of the accused)
Under Section: (Mention the sections under which the FIR has been filed)
1. That the present FIR has been registered on false and bogus facts. The facts stated in
2. That the police has falsely implicated the applicant in the present case, and arrested him
although the applicant is a respectable citizen of the society and is not involved any
criminal case.
3. That the facts stated in the complainant against the applicant are civil disputes and does
not constitute any criminal offence at all.
4. That the applicant is not required in any kind of investigation nor any kind of custodial
interrogation is required.
5. That the applicant is having very good antecedents, he belongs to good family and there
is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
7. That the applicant undertakes to present himself before the police/court as and when
directed.
8. That the applicant undertakes that he will not, directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses
in any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.
12. That the Court below has failed to consider all the facts and circumstances of the case
and has wrongly dismissed the bail application.
13. It is therefore prayed that the court may direct the release the applicant on bail in the
interest of justice.
14. Any other order which the court may deem fit and proper in the facts and circumstances
of the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
BEFORE THE HIGH COURT AT (give the name of the High Court where the bail
application format India is being filed)
IN THE MATTER OF
STATE
vs
(Mention the name of the accused)
Under Section: (Mention the sections under which the FIR has been filed)
Accused in custody since: (Give the date since when the accused is in custody)
1. That the present FIR has been registered on false and bogus facts. The facts stated in
the FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant in the present case, and has arrested
him. The applicant is a respectable citizen of the society and is not involved any criminal
case.
3. That the facts stated in the complainant against the applicant are civil disputes and does
not constitute any criminal offence at all.
4. That the applicant is not required in any kind of investigation nor any kind of custodial
interrogation is required.
5. That the applicant is having very good antecedents, he belongs to good family and there
is no criminal case pending against them.
6. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
7. That the applicant undertakes to present himself before the police/court as and when
directed.
8. That the applicant undertakes that he will not, directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer.
9. That the applicant further undertakes not to tamper with the evidence or the witnesses in
any manner.
10. That the applicant shall not leave India without the previous permission of the Court.
11. That the applicant is ready and willing to accept any other conditions as may be imposed
by the Court or the police in connection with the case.
12. That the Court below has failed to consider all the facts and circumstances of the case
and has wrongly dismissed the bail application.
It is therefore prayed that the court may direct the release the applicant on bail in the interest
of justice.
Any other order which the court may deem fit and proper in the facts and circumstances of
the case may be also passed in favor of the applicant.
APPLICANT
THROUGH
COUNSEL
CHAPTER VII
7. CONCLUSION
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 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. A proper scrutiny may be done to determine whether
the accused has his roots in the community which would deter him from fleeing from the
court. The court can take into account the following facts concerning the accused before
granting him bail:
BIBLIOGRAPHY
1. BOOKS REFERRED
Jus. C.K. Takwani, Code of Civil Procedure (7th Edition).
Jus. C.K. Thakker, Commentaries on Code of Civil Procedure, 1908 (2nd
Edition).
Mulla, Code of Civil Procedure (14th Edition).
2. WEBSITES REFERRED
www.manupatra.com
www.scconline.com
3. LEGISLATIONS REFERRED
Code Civil Procedure, 1908.