DRAFTING, PLEADING &

CONVEYANCE PROJECT
“BAIL APPLICATION”

SUBMITTED TO:
Ms. SHAKUNTALA SANGAM
(ASSISTANT PROFESSOR OF LAW)

PROJECT SUBMITTED BY:

RISHI SEHGAL
Semester VI, Section B

ENROLL. NO. 150101112

DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY.

LUCKNOW, UTTAR PRADESH

 ACKNOWLEDGMENT

First, the Researcher extends his profound gratitude and thankfulness to Ms. Shakuntala
Sangam Faculty for DPC, who gave an opportunity to the researcher to work on the given topic and
limit himself as per his comfort. She also steered the researcher in getting through this robust job of
completing this assignment. Secondly, the Researcher lengthens his thanks to Faculty of Library and
all the students of the seventh semester who provided useful inputs during the classroom discussion
of the topic and for the shore up and co-operation they provided with.

I also take this opportunity to thank all those people who contribute in their own small ways but fail
to get a mention.

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 TABLE OF CONTENTS

CHAPTER I: INTRODUCTION ...................................................................................................... 3

CHAPTER II: HISTORY OF BAIL .................................................................................................. 5

CHAPTER III: - FORMALITIES FOR THE FULFILEMENT OF GRANT OF BAIL ................. 11

CHAPTER IV: BAIL APPLICATION FORMAT ......................................................................... 14

CHAPTER V: JUDICIAL TREND .................................................................................................. 21

CHAPTER VI: CONCLUSION ....................................................................................................... 22

BIBLIOGRAPHY ............................................................................................................................ 24

2
 RESEARCH METHODOLOGY

This research project is descriptive and analytical – doctrinal in approach. It is largely based on
secondary and electronic sources. Thorough use of the available books has been made wherever
necessary.

In this era of cyber age the potentiality of the internet resources cannot be undermined. Consequently,
researcher has referred to the internet resources in the relevant portions of this project.

OBJECTIVES

 To understand the concept of Bail under CRPC

 To learn to write a Bail Application

3
 CHAPTER I: INTRODUCTION
The purpose of arrest and detention of a person is primarily to make sure that the person appears
before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he
must be made available to serve his sentence. However, if it is reasonably evident that the person
charged with an offence can be made available for the above mentioned purposes without keeping
him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a violation of a
person's fundamental right to restrict the person's liberty without any just cause.

Bail is one such mechanism which is used to ensure the presence of an accused whenever required
by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a
person makes a written undertaking to the court. A person who is in custody, because he or she has
been charged with an offence or is involved in pending criminal proceedings, may apply to be
released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present
every time the matter is in court until the proceedings are finished, will comply with any conditions
set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of money if the
person fails, without proper excuse, to comply with any term or condition of the agreement. Two
authorities that may grant bail are the police and the courts. A person may be required to provide a
security as well. But it is not necessary. A person may also be let off on his own bond. In the case
of Moti Ram vs State of MP1 held that a Bail covers both release on one's own bond with or without
surety.

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence

is an offence of relatively less severity and for which the accused has a right to be released on bail.
While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released
on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable
Offence as follows2-

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 in force: and "non-bailable offence" means any

1
Moti Ram v. State of M.P. A.I.R. 1978 S.C. 1594.
2
Section 2(a) Code of Criminal Procedure, 1973.
4
other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply
makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences
include offences such as obstructing a public servant from discharging his duties, bribing an election
official, and providing false evidence. Non-bailable offences include offences such as murder,
threatening a person to give false evidence, and failure by a person released on bail or bond to appeal
before court. However, a quick look at the list of bailable and non-bailable offences shows that
bailable offences are of relatively less severity.

CHAPTER II: 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.

Evolution 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 no
man could be taken or imprisoned without being judged by his peers or the law of the land. 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
5
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 offenses
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 that "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."

Current Practice

In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position of bail
prevailing in England. It lays out that there is a general right to bail, except as provided for under the
First Schedule of the Act. While there are different grounds for refusing the right to bail depending
on the type of offence, for all imprison able offences the two basic grounds are as set out by the
O'Callaghan decision. But there is also the additional ground that if the court is satisfied that there
are "substantial grounds for believing" that the defendant if released on bail will commit an offence
while on bail, bail may be refuse. Under section 5(3) of the Bail Act 1976 the court which withholds
bail is required to give reasons, so that the defendant can consider making an application. In practice,
however, the reasons given by English courts on a variety of standard forms are frequently short and
not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that
magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons
in short form.

English administrative law also requires that, where there is an existing obligation to give reasons
for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the
case. The English courts use tick boxes for recording the grounds and the reasons for not granting
bail. There is a use of a standard pattern that which lists out the various reasons for not granting the
bail. These forms vary in their precise configuration, but in substance they are all the same as all of
them set out the grounds for refusing bail in one column, and a number of possible reasons for the
findings those grounds established in another column. The decision is recorded by ticking the
relevant box in each column. But the decisions recorded on standard forms might be at risk of being

6
characterised as "abstract" or "stereotyped", and therefore inadequate. The quality of the reasons
given directly reflects the quality of the decision-making process.

Evolution in America

According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds business in
the United States, the system by which a person pays a percentage to a professional bondsman who
puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter
P. McDonough in San Francisco in 18983. In fact, this was the same year that the Bill of Rights was
introduced in England, and the Congress passed the Judiciary Act. This specified which types of
crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all
non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial,
was to be left to the judge. In 1791 The Bill Of Rights was incorporated into Constitution of the
United States, through the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due
process of law, a fair and speedy trial and protection against excessive bail. The Eighth Amendment
to the Constitution of the United States provides that "excessive bail shall not be required," but it
does not provide any absolute right to bail4.

Current Practice

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. The alternative to being granted bail is being remanded into custody (also called
being held on remand).5

In America, every accused person is entitled to a hearing at which evidence relevant to his individual
case is considered to determine the amount of bail necessary. No precise rule can be laid down that

3
J.P. Agarwal, Pleadings in India Vol. 1 Delhi Law House.
4
P.C. Mogha, The Law of Pleadings in India with precedents, 16th edn., Calcutta Law House.
5
Giles Francis Harwood, Odgers’ Principles of Pleading and Practice, Universal Law Publishing Co. Ltd.
7
will determine the amount of bail required in any particular instance. Bail is to be fixed according to
the circumstances of each case. The matter is generally one for the sound discretion of the trial court.
Although the determination of the trial court is subject to the review in the appellate courts for abuse
of discretion, ordinarily the appellate courts will not interfere if the amount set by the trial court is
reasonable and not excessive.

The amount of a bond should, of course, be sufficient to assure the attendance of the defendant upon
the court when it is required. The bond should be fixed in such amount that will exact vigilance on
the part of the sureties to see that the defendant appears in court when called. 6 Both the Federal
Constitution and state constitutions contain provisions against excessive bail. Bail set at an amount
higher than reasonably calculated to insure that the accused will appear to stand trial and submit to
sentence if convicted is excessive, and falls within the proscription of the Federal Constitution if set
by a federal court, or of the particular state's constitution if set by a state court. But no hard-and-fast
rules for determining what reasonable bail is and what excessive bail is have been laid down. That
the bail is reasonable which, in view of the nature of the offense, the penalty attached to the offense,
and the probability of guilt of defendant, seems no more than sufficient to secure attendance of the
defendant.

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 fulfil 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. 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.

6
State v Chivers, 198 La. 1098, 5S 2d. 363.
8
The Bail Reform Act of 1966 provides for the release of defendant on his personal recognizance or
upon execution of an unsecured appearance bond in an amount specified by the judicial officer before
whom he appears, unless the officer determines, in the exercise of his discretion, that such release
will not reasonably assure the appearance of defendant as required, in which event specified
conditions of release which will reasonably assure defendant's appearance for trial may be imposed.
The Bail Reforms Act, 1966 was initiated by President Johnson who felt that under the Federal Rules,
bail in an amount higher than reasonably calculated to be necessary to assure the presence of the
accused is excessive. It has been stated that the factors to be taken into consideration in determining
the amount of bail are:

(1) Ability of the accused to give bail,

(2) Nature of offense,

(3) Penalty for the offense charged,

(4) Character and reputation of the accused,

(5) Health of the accused,

(6) Character and strength of the evidence,

(7) Probability of the accused appearing at trial,

(8) Forfeiture of other bonds, and

(9) Whether the accused was a fugitive from justice when arrested.7

That the accused is under bond for appearance at trial in other cases should also be considered. 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

7
Delaney v. Shobe, 218.
9
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.

Even where bail is a matter of right, the fact that a person has previously forfeited bail is a factor to
be considered in determining the amount of bail; in such a case bail may be set in such amount as
will reasonably assure the presence of the defendant at court, although bail may not be refused
altogether. In setting the bail, the court may also consider the behaviour or misbehaviour of the
defendant during parole from prison on a previous criminal conviction.

The probability of the establishment of guilt at the trial, or the existence of doubt as to the guilt of
the accused, is a proper consideration in determining the amount of bail. Hence a court, in
determining the amount of bail, may consider the character and strength of the evidence by which
the crime charged is supported. A court should give some regard to the prisoner's pecuniary
circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the
right to bail if exacted of a poor man charged with a like offense. An accused cannot be denied release
from detention because of indigence, but is constitutionally entitled to be released on his personal
recognizance where other relevant factors make it reasonable to believe that he will comply with the
orders of the court.

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 get 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 current American position is stated as follows in a standard treatise "There is power in the court
to release the defendant without bail or on his own recognition."

10
 CHAPTER III: - 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.8 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.9

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.

WHEN BAIL CAN BE REFUSED IN BAILABLE OFFENCE?

 When any person is released on bail u/s 436 of CRPC, he is duty bound to appear before the
Court as and when required or directed. If he breaches the condition of bond executed by him

8
Section 436 Code of Criminal Procedure, 1973.
9
Id.
11
 and does not appear before the Court, then he can be re-arrested then he cannot claim bail as
a matter of right though the offence committed by him is bailable in nature.

NON-BAILABLE OFFENCE

Section 437 - When any person accused of, or suspected of, the commission of any 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 other than the High Court or Court of Session, he may be released on
bail. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the
case may be, that there are no reasonable grounds for believing that the accused has committed a
non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused
shall be released on bail, or, at the discretion of such officer or Court, on the execution by him of a
bond without sureties for his appearance. A police officer or the court may also release a person from
custody if he feels that there are any special reasons. But he must record his reasons in writing.10

In Moti Ram v State of MP11 Justice Krishna Iyer held that, in non-bailable offence bail is rule and
jail is exception. He further concluded that, bail application should be rejected only when it is of
utmost necessity to keep the accused in jail in the interest of justice. This approach is based on
reformative theory of punishment. Generally, in Non-Bailable Offences, bail is granted keeping in
mind the following factors:-
 Gravity of the offence committed by the deceased.
 Need of the accused for the purpose of investigation.
 Consequences of his release.

The provisions relating to bail in case of non-bailable offence, mentioned u/s 437 and u/s 439, the
arrested person may be released on bail but he will not be released:-
 If the offence committed by him is punishable with death sentence, life imprisonment or
imprisonment for a period of more than 7 years

10
R.V. Kelkar, Code of Criminal Procedure Eastern Book Company (6th edn. E.B.C. 2016).
11
1978 A.I.R. S.C. 1594.

12
  If the accused has repeated the offence, then also he shall not be released on bail

Moreover Section 437 lays down certain circumstances where the arrested person may be released
on bail even if the offence committed by him is non-bailable.
1. If the investigation is not completed within a period of 60 days (summons) and 90 days
(warrant), then accused has to release on bail.
2. When arrested person is woman or above 60 years of age.
3. When arrested person is suffering from serious disease.
4. When the trial is for non-bailable offence, but evidence shows that it is bailable offence.
5. If the circumstances, nature and facts of the case does not allow the accused to be released
on bail, then the bail application will be rejected

Special Powers of High Court and Court of Session regarding Bail

Section 439 gives special powers to High Court and Court of Session regarding bails. These are as
follows –
1. A High Court or Court of Sessions may direct that any person accused of an offence and in
custody be released on bail. It may also impose any condition which it considers necessary.
It may set aside or modify any condition imposed by a Magistrate when releasing any person
on bail.
2. The High Court or the Court of Sessions shall, before granting bail to a person who is accused
of an offence which is triable exclusively by the Court of Sessions or which, though not so
triable, is punishable with imprisonment for life, give notice of the application for bail to the
Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not
practicable to give such notice.
3. A High Court or Court of Sessions may direct that any person who has been released on bail
under this chapter be arrested and commit him to custody.

13
 CHAPTER IV: BAIL APPLICATION FORMAT

Application under Section 436 of Cr PC for the grant of Bail

IN THE COURT OF ___

In Re:

Petitioner
Versus

Respondents

FIR No. : ______ Dated ______ Police Station: ______

Offence Under Section: ______

Application under Section 436 of Cr PC for the grant of Bail

Respectfully Sheweth:

1. That the applicant has been involved in a false and frivolous case by one Sh. ________ by
lodging a complaint with the SHOPS _______ on ________ for offence under sections
________ of the IPC. The applicant/accused has been arrested by the Police of Police Station:
________ subsequent to the above complaint.

2. That it is submitted that the allegations made against the applicant/accused are false,
frivolous and vexatious and lack in the material substance. The applicant belongs to a very
reputed family in his locality. The allegations are that ________

14
3. That the applicant/accused is a permanent resident of ________ and earning livelihood by
________. The applicant has his old parent’s dependent upon him and the applicant is the
only bread earner for the family.

4. That the applicant/accused is innocent and has been involved falsely due to the personal
grudge to settle the score against the applicant/accused________ OR due to enmity and
family feud. It is submitted that the complainant is an influential and high-handed person.
________

5. That by getting the applicant/accused arrested the applicant has been deprived of his
valuable fundamental right of liberty by abuse of powers and process of law by the
complainant. ________

6. 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.

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

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;
_____
(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

15
facts and circumstances of the case and in the interest of justice.

Coimbatore Applicant

______ Through, Advocate

Note: -

1. This application is filed through the _____ father and next friend of the applicant/accused,
Sh. ______. It is, therefore, prayed that the application of the applicant/accused may kindly
be allowed and the applicant/accused may kindly be released on interim bail in the interest of
Justice.

2. That the applicant/accused is under police custody. Therefore, the requirement of affidavit
and signature may kindly be dispensed with.

Coimbatore Applicant

_______ Through, Advocate

16
 IN THE COURT OF ___

Applicant
Versus

Respondent

Affidavit in support of the application under Section 436 of CrPC

I, _______, 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 instructions.

2. That the contents of paras 1 to ______ 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 Coimbatore on ______.

Deponent

17
 Application under Section 437 of Cr PC for the grant of Bail.

IN THE COURT OF ___

In Re:

Petitioner _______
Versus

Respondents ________

Application under Section 437 of CrPC for the grant of Bail

Respectfully Sheweth:

1. That the applicant is facing trial before this Hon'ble Court in case titled as _____ Vs
______ for the offence under Sections ______ of IPC.

2. That the said case was fixed for ______ on ______. The applicant could not put in his
presence on _____ due to reasons that _____. This Hon'ble court was pleased to issue Non-
Bailable Warrants and the Police has accordingly arrested the applicant/accused. That non-
appearance of the applicant on _____ was neither wilful nor intentional but due to reasons
beyond the control of the applicant.

3. That the applicant/accused is a permanent resident of _____ and earning livelihood by

_____. The applicant has his old parent’s dependent upon him and the applicant is the only
bread earner for the family.

4. That by getting the applicant/accused arrested the applicant has been deprived of his
valuable fundamental right of liberty by abuse of powers and process of law by the

18
complainant. _____

5. 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.

It is, therefore, most respectfully prayed that the applicant may kindly be ordered to be
released on bail and this application for bail may kindly be allowed in the interest of justice.
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.

Coimbatore Applicant

______ Through, Advocate

Note: -

1. This application is filed through the _____ father and next friend of the applicant/accused,
Sh. _____. It is, therefore, prayed that the application of the applicant/accused may kindly be
allowed and the applicant/accused may kindly be released on interim bail in the interest of
Justice.

2. That the applicant/accused is under police custody. Therefore, the requirement of affidavit
and signature may kindly be dispensed with.

Coimbatore Applicant

______ Through, Advocate

19
 IN THE COURT OF ______

Applicant

Versus

Respondent

Affidavit in support of the application under Section 437 of Cr. P. C.

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

1. That the accompanying application under section 437 Cr.P.C. has been drafted at my
instance and under my instructions.

2. That the contents of paras 1 to _____ 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 Coimbatore on ______.

Deponent

20
 CHAPTER V: JUDICIAL TREND

An overview of the following cases highlight the adverse condition of the poor with regard to
the unjust bail system in India. In State of Rajasthan v Balchand12, the accused was convicted
by the trial court. When he went on appeal the High Court, it acquitted him. The State went on
appeal to the 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.P13, 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.

In Maneka Gandhi v Union of India14, Justice Krishna Iyer once again spoke against the unfair
system of bail that was prevailing in India. No definition of bail has been given in the code,
although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati
also spoke about how unfair and discriminatory the bail system is when looked at from the
economic criteria of a person this discrimination arises even if the amount of bail fixed by the
magistrates isn't high for some, but a large majority of those who are brought before the courts
in criminal cases are so poor that they would find it difficult to furnish bail even if it's a small
amount. Further in Hussainara Khatoon and others v. Home Sec. State of Bihar15 , the Court
laid down the ratio that when the man is in jail for a period longer than the sentence he is liable
for then he should be released.

12
A.I.R. 1977 S.C. 2447.
13
A.I.R. 1978 S.C. 1594.
14
A.I.R. 1978 S.C. 597.
15
A.I.R. 1979 S.C. 1369.

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 CHAPTER VI: CONCLUSION
It is of prime significance to note that the very concept of bail arises from a presumption, of
the accusatorial system, of ‘innocent till proven guilty.’ As such an individual’s personal liberty
which is a fundamental right under Article 21 of the Constitution, cannot be compromised until
he/she is convicted and thus proven guilty. Thus he/she is allowed to furnish security (in the
form of bail) to secure the accused’s presence for trial while enabling him/her to retain his/her
personal liberty.
However, as was brought to light, in famous Hussainara Khatoon case, personal liberty as
operating within the domain of the criminal justice system remains the cherished prerogative
of the rich. While those who can ill afford legal counsel to inform them to their right to bail.
(i.e. in non-bailable offences- section 2(a) Cr.P.C.) And consequently are unable to pay the
amount, are relegated to languish in prisons, often for terms longer than the period
of punishment prescribed for the offence they are charged with. Thus in order to extend the
fundamental right of personal liberty under Article 21 of the Constitution, to even the
economically weaker sections of the population (who form a majority of the prison population),
the right to free legal aid must be made a constitutional right. Thus the decision in the same
case, also in M. H. Hoskot v. State of Maharashtra making legal aid a constitutional mandate
under Article 21 is welcome in paving the way towards upholding human rights in criminal
jurisprudence.

However in order to ensure one’s right to a speedy trial-and thus consequently minimum
infringement on the accused’s right to personal liberty an overhaul of the criminal justice
system in its entirely is called for. A mere emphasis on investigation machinery by prescribing
a time limit as per section 167(2) Cr.P.C. will not suffice to attain the desired object. Moreover
it is interesting to note that on lapse of the prescribed period bail as of right accrues to the
accused, even if he is an accused of a grave, heinous non-bailable offence and in other
circumstances would have definitely been refused to bail. Thus the backlash of section 167(2)
as well as its possible effectiveness ought to be considered in the light of its object of ensuring
a right to speedy trial under Article 21 of the Constitution. Thus the law of bails must continue
to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give
way to the humanization of criminal justice system and to sensitize the same to the needs of
those who must otherwise be condemned to languish in prisons for no more fault other than

22
their inability to pay for legal counsel to advise them on bail matters or to furnish the bail
amount itself.

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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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