Dr.

Ram Manohar Lohiya National Law

B.A. L.L.B. (Hons.), Semester VI

Under the supervision of: Submitted By:

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TABLE OF CONTENTS

1.INTRODUCTION.........................................4

2.MEANING AND HISTORY OF BAIL…...5

3.APPLICATION FOR RELEASE ON

4.OUTCOME OF APPLICATION……......10

5.CONCLUSION………………………........13

6.BIBLIOGRAPHY……………………...…14

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 ACKNOWLEDGEMENT

This satisfaction and euphoria that accompany the development of any task would be
incomplete without the mention of people who make it possible whose content guidance and
encouragement crowded any efforts and success.

Success is very sweet fruit which strives to taste. To achieve one’s goal one puts lot of mental
and physical stress. This project on, the Criminal Pleadings: Bail Application. I Sanstubh
Sonkar of B.A. L.L.B (Hons.) sixth semester take this opportunity to acknowledge my
sincere gratitude to my esteemed guide Drafting of Pleadings and Conveyancing teacher Dr.
Shakuntla Sangam for this valuable guidance and encouragement throughout the project
completion period. It was a difficult task for me to collect necessary material for completing
this project, but through the help of my teacher it is possible for me to complete my project.

I would also like to thank my friends. Lastly I would like to thank all authors whose books
and sites I have used for completing this project.

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1.) 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 concept of bail can traced back to 399 BC, when Plato tried to create a bond
for the release of Socrates. The modern bail system evolved from a series of laws originating
in the Middle Ages in England. A bail application can be filed when a person has been
arrested on the charges of a bailable or a non- bailable offence. A person has an absolute right
to claim a bail when he has been arrested on the charges of a bailable offence under Section
436 of Criminal Procedure Code, 1973 (CrPC). While, in case of a non- bailable offence, it is
the discretion of the court and he doesn’t have an absolute right under Section 437 of the
CrPC. According to Section 436 of CrPC, a bail petition can be filed by an accused while he
is in police custody during any stage of the proceeding.
The method of arriving at an issue by alternative allegation has been practiced in England
from the very early times. As a matter of fact, it is as old as any other law of procedure. It
certainly existed in one form or the other in the time of Henry II. But one is simply baffled to
find that modern English rules of pleading were fundamentally anticipated by the ancient
Hindu system, and similarly there were pleading in the Muslim period.1

1 Manohar, Murli, Art of Conveyancing and Pleading, Eastern Book Company, Lucknow, 2nd Ed., 2004, Pg. No.
– 3.

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2.) MEANING AND HISTORY OF BAIL

The amount of bail - money or other security deposited with the court to insure that you will
appear - is set by a schedule in each state. You may be notified that you can forfeit or give up
bail instead of appearing in court if you receive a traffic citation. However, if you have any
doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail
forfeiture does not apply to misdemeanours or felonies. Forfeiting bail does not mean that the
charges are dropped and usually works as a conviction for a traffic offence.2
Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will
be kept in custody. Depending on where you are arrested, you may have the opportunity to
request a bail reduction through a bail commissioner. If you are charged with a criminal or
traffic offence and you will be attending court, you will need to understand what bail is. Bail
is a written promise, known as a bail undertaking, that you will come to a certain court at a
particular time and date and abide by any conditions included in the undertaking. It is also a
promise that if you do not come to court when you are supposed to, that you will still come as
soon after that as you possibly can. Bail may be set by the police or the court. Once you are
in court for a particular charge, only the court can set bail for you in relation to that charge.
The court can change or remove bail set by the police in relation to that charge. When you
appear in court, bail will only be necessary if you have to come back to court on a later date.
If your matter is finished on your first appearance in court, bail will not need to be considered
or imposed by the court. The court may not require you to enter into a bail undertaking in
every case. This will depend on the seriousness of the offence and the circumstances of your
case.

If you are required to enter into a bail undertaking, you must sign the undertaking and you
will be given a copy of it before you leave the police station or court. When you are taken to
court for bail setting or release, the judge will consider the seriousness of the offence you are
charged with, any prior failures to appear (even for traffic tickets), any previous record, your
connections to the community, as well as the probability that you will appear in court. The
amount of bail is set according to a written schedule based on your charges. The law

2 http://www.legalaid.wa.gov.au/InformationAboutTheLaw/crime/Bailandsurety/Pages/Bail.aspx .

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presumes you are guilty of the charges for purposes of setting bail or release.

Instead of paying bail, you might be released on your own recognizance or "O.R." (or
supervised O.R.). This means that you do not have to pay bail because the judge believes that
you will show up for court appearances without bail.

Objectively analysed the criminal jurisprudence adopted by India is a mere reflection of the
Victorian legacy left behind by the Britishers. The passage of time has only seen a few
amendments once in a while to satisfy pressure groups and vote banks. Probably no thought
has been given whether these legislations, which have existed for almost seven decades, have
taken into account the plight and the socio-economic conditions of 70% of the population of
this country, which lives, in utter poverty. India being a poverty stricken developing country
needed anything but a blind copy of the legislations prevalent in developed
western countries. The concept of bail, which is an integral part of the criminal jurisprudence,
also suffers from the above stated drawbacks. Bail is broadly used to refer to the release of a
person charged with an offence, on his providing a security that will ensure his presence
before the court or any other authority whenever required.

HISTORY OF BAIL: The concept of bail can traced back to 399 BC, when Plato tried to
create a bond for the release of Socrates. The modern bail system evolved from a series of
laws originating in the Middle Ages in England. There existed a concept of circuit courts
during the medieval times in Britain. Judges used to periodically go ?on circuit? to various
parts of the country to decide cases. The terms Sessions and Quarter Sessions are thus derived
from the intervals at which such courts were held. In the meanwhile, the under trials were
kept in prison awaiting their trials. These prisoners were kept in very unhygienic and
inhumane conditions this was caused the spread of a lot of diseases. This agitated the under
trials, who were hence separated from the accused. This led to their release on their securing
a surety, so that it was ensured that the person would appear on the appointed date for
hearing. If he did not appear then his surety was held liable and was made to face trial.
Slowly the concept of monetary bail came into existence and the said under trials was asked
to give a monetary bond, which was liable to get forfeited on non-appearance.
In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that

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no man could be taken or imprisoned without being judged by his peers or the law of the
land.3
Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and
non-bailable. It also determined which judges and officials could make decisions on bail.
In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the
right to the defendant the right to be told of the charges against him, the right to know if the
charges against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate
shall discharge prisoners from their Imprisonment taking their Recognizance, with one or
more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall
appear that the Party is committed for such Matter offences for which by law the Prisoner is
not bailable." In 1689 came The English Bill Of Rights, which provided safeguards against
judges setting bail too high. It stated "excessive bail hath been required of persons committed
in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.
Excessive bail ought not to be required."

3.) APPLICATION FOR RELEASE ON BAIL

There are some conditions put under section 437 of the Cr.P.C. wherein you can ask for bail
even if you committed non-bailable offence. In non-bailable cases, bail is not the right but the
discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of
certain conditions as necessary in the circumstances. Section S. 437 (3) elaborates the
conditions set by the law to get bail in non-bailable offences.

The sub-section says that when a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven years or more or of an
offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of
1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on

3 http://www.legalserviceindia.com/articles/bail_poor.htm .

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bail under sub-section (1). However, for that the Court has power to impose any condition
which it considers necessary.

Some conditions that the court may place while granting bail are as follows:

• In order to ensure that such person shall attend in accordance with the conditions of
the bond executed under this Chapter, or

• 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

• Otherwise in the interests of Justice.4

Bail Application

IN THE COURT OF ____________, ADDITIONAL DISTRICT AND SESSION

IN THE MATTER OF:

LMN, ___________, Son of _________________ Years of Age, Working as _____ Residing

........... Petitioner

Versus

State of_________ Through PQR, Son of _________, ____ Years of age, Working as
__________ Residing at _______________

...........Respondent

FIR No.: ___________

U/s: ___________

P.S.: ___________

4 https://www.kaanoon.com/indian-law/what-is-the-law-regarding-bail-in-india/ .

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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 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 Honourable 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
Honourable Court for grant of bail in case of the present FIR. (Or give details and results of
earlier applications) 5

5 http://www.advocatekhoj.com/library/agreements/criminallaw/2.php .

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PRAYER:

In view of the above stated facts and circumstances it is most respectfully prayed that this
Honourable 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 Honourable Court may deem fit and proper in the
interest of justice.

LMN........Petitioner

Through

ABC.........Counsel

Place:

Dated:

5.) OUTCOME OF THE APPLICATION

Under current law, a defendant has the right to bail unless there is sufficient reason not to
grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are
substantial grounds for believing that the defendant (1) will abscond; (2) will commit further
offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the
grant of bail, such as living at a particular address or, rarely, paying an amount into court or
having someone act as surety. Release on bail is sometimes referred to as police bail, where
the release was by the police rather than by a court.

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The amount of bail, in and of itself, is not finally determinative of excessiveness. What would
be reasonable bail in the case of one defendant may be excessive in the case of another. As
indicated below, such matters as the past criminal record of the defendant, and the nature of
the crime committed and the punishment therefore, are material factors in determining
whether bail is excessive. Where two or more cased are pending against a defendant, the fact
that bail in one case, considered by itself, is reasonable, does not prevent the collective
amount required in the several cases from being excessive.

The gist of the problem confronting a court in setting the amount of bail is to place the
amount high enough to reasonably assure the presence of defendant when it is required, and
at the same time to avoid a figure higher than that reasonably calculated to fulfill this
purpose, and therefore excessive. The general rule in federal courts is to try to strike a
balance between the need for a tie to the jurisdiction and the right to freedom from
unnecessary restraint before conviction, under the circumstances surrounding each particular
accused.6 In other words, in determining the amount of bail, the good of the public as well as
the rights of the accused should be kept in mind.

A major factor in determining the amount of bail in a current matter is the character and
former criminal record of the defendant. It has been held, however, that the criminal activities
and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing
of bail at an excessive amount for the purpose of keeping him in jail. In determining the
amount of bail, voluntary surrender may be considered as an indication that the defendant has
no intention of absconding from justice. On the other hand, it is also proper, in setting a
higher bail figure, to take into consideration the fact that at the time of arrest the accused was
a fugitive from justice, or the fact that the defendant has previously absconded while under
indictment. However, bail is not rendered excessive by the mere inability of the accused to
procure bail in the amount required. In other words, the extent of the pecuniary ability of the
accused to furnish bail in not controlling, if it were, the fixing of any amount, no matter how
small, where the accused had no means of his own and no friends who were able or willing to
become sureties for him, would constitute a case of excessive bail, and would entitle him to

6 Spector v United States (CA9 Cal) 193 F2d 1002

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got at large on his own recognizance. It is the incarceration of those individuals who cannot
meet established money bail requirements, without meaningful consideration of other
possible alternatives, which infringes on both due process and equal protection requirements.

The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the
terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as
follows: " 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, section 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. Unfortunately, it has been seen that courts
have not been sensitive to the economic plight of the weaker sections of society. The
unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their
callous attitude towards the poor.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison
population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific
jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78
per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.7 One of the
reasons for this is, as already mentioned above, is the large scale poverty amongst the
majority of the population in our country. Fragmentation of land holdings is a common
phenomenon in rural India. A family consisting of around 8 ? 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.

7 Supra note 3.

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6.) CONCLUSION

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:

(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior release on recognizance or on
bail.
(7) Identity of responsible members of the community who would vouch for his reliability.
(8) The nature of the offence charged and the apparent probability of conviction and the
likely sentence in so far as these factors are relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the community or barring on the
risk of wilful failure to appear.

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7.) BIBLIOGRAPHY

• Books
1. Murli Manohar, Art of Conveyancing and Pleading, Eastern Book Company,
Lucknow, 2nd Ed., 2004.
2. R.D. Srivastava, The Law of Pleading and Conveyancing, Central Law
Agency, Allahabad, 11th Ed., 2003.
3. Giles Francis Harwood, Odger’s Principles of Pleading and Practice,
Universal Law Publishing Co. Pvt. Ltd., Delhi, 20th Ed., 2002.
• Web
1. http://www.legalaid.wa.gov.au/InformationAboutTheLaw/crime/
Bailandsurety/Pages/Bail.aspx.
2. https://www.kaanoon.com/indian-law/what-is-the-law-regarding-bail-in-india/.
3. http://www.legalserviceindia.com/articles/bail_poor.htm.
4. http://www.advocatekhoj.com/library/agreements/criminallaw/2.php.

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