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Application of bail under section 436 of

Criminal Procedure Code


Project submitted by: Nirvikalp Shukla
Project submitted to: Mrs. Neha Sinha
(Faculty: Drafting, Pleading and
Conveyancing)
Subject: Drafting, Pleading and Conveyancing
Section: C
Roll no. : 105
SEMESTER- VIII
B.A. LL.B. (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NEW RAIPUR (C.G)

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DECLARATION
I, Nirvikalp Shukla hereby declare that, the project work entitled, Application for bail under section 436
of Crpc submitted to H.N.L.U., Raipur is record of an original work done by me under the able guidance
of Mrs. Neha Sinha, Faculty Member, H.N.L.U., Raipur.

Nirvikalp Shukla

Roll No.105

Batch XIII

Sem VIII

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ACKNOWLEDGEMENTS

First of all I would like to express my heartfelt gratitude to my teacher, Mrs. Neha Sinha for

providing me with the opportunity to work on this topic.

I am also grateful to the staff at the library and the IT lab at HNLU for providing me with the

opportunity to avail of the much needed material for reference, to finish my project.

I would also like to thank my friends for encouraging me in my endeavour.

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TABLE OF CONTENTS

1. Introduction5
2. Research Methodology......5
3. Review of literature...6
4. Facts in brief...........................8
5. Understanding bail............................................................10
6. Application............................................................. ..12
7. Conclusion.....................................................16

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Introduction

The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail process and how it
is obtained. However, it does not define bail. To get a glimpse of the law, we need to go deeper to
section 2(a) Cr.P.C. wherein it says that 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.

Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses under the Indian
Penal Code and puts them into bailable and on bailable categories which have been determined
according to the nature of the crime. For instance, all serious offenses like offenses punishable
with imprisonment for three years or more have seen considered as non bailable offenses, all
other offenses have been kept bailable offenses.

Later part of the Cr.P.C. talks about the process of bail under sections 436 to 450 wherein it
has the provisions for the grant of bail and bonds in criminal cases and also talks about 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. However, still a lot of discretionary power has been vested into the
court to put a monetary cap on the bond.

Research Methodology
OBJECTIVES

To introduce the concept of bail.


To discuss the provision related to bail applications under our criminal system.
To prepare an application of bail under section 436 of Cr.P.C.

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METHODOLOGY
This project is theoretical, descriptive and analytical in nature. The type of the data used is
secondary. Accumulation of the information on the topic includes wide use of primary sources
such as cases as well as secondary sources like books, e-articles etc. The matter from these
sources have been compiled and analysed to understand the concept.

Websites, dictionaries and articles have also been referred.

The structure of the project, as instructed by the Faculty of Drafting, Pleading and Conveyancing
has been adhered to and same has been helpful.

MODE OF CITATION

All the citations in the project follow the mode prescribed in the 19th Edition of Bluebook.

CHAPTERISATION

Chapter 1 starts with the introduction of the Section 436 of CrPC, bail and divides the research
project into categories. Chapter 2 has given the facts of a case to the reader.Lastly, Chapter 3 has
given an application of bail under section 436 of Cr.P.C, along with verification, of the same
case.

REVIEW OF LITERATURE AND AUTHORITIES


Textbook on Pleadings, Drafting &Conveyancing, A.B. Kafaltiya, Universal Law
Pub Co.Pvt.Ltd, Delhi, 2012.
It covers their course content on the subject. The object of pleading is to give a fair notice
of the case of one party which has to be met by the other so that the contesting parties
may direct their evidence to the issues disclosed by the pleadings. A practical lawyer
needs the latest techniques of pleadings of suits, petitions, applications, writs etc.
Similarly, drafting of the transfer of property rights has a target to avoid future disputes

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between the parties to the transaction. The function of pleading is not simply for the
benefit of the parties but also for the assistance of the Court as a pleading defines the area
of conflict within which a party to an action is bound to confine its claim or defence.
Drafting a pleading for suits or applications is laying a foundation upon which the whole
structure of claim or written statement of the defendant is built, or the defence is made.
Pleadings : An Essential Guide, S.P. Aggarwal, LexisNexis, Nagpur, 2nded, 2013.
Drafting of pleadings is therefore an important work of a busy lawyer. A plaint or a
written Statement is called pleadings. But it covers several interlocutory applications too.
Conveyance means drafting of a transaction relating to some interest, right, estate in a
property viz., possession, enjoyment of disposition etc. Drafting of a conveyance; i.e.,
drafting a transaction relating to creation, extinguishments, and declaration, or
conferment of some right or obligation and limitation in a property right between two or
more living persons including a "Will" requires certain formalities to make it a legal
instrument. "Instrument" includes every document by which any right or liability is, or
purports to be, created, transferred, limited, extended, extinguished or recorded. A fine
legal instrument, therefore, is supposed to avoid future litigation and to solve legal
problems that may arise in future under it.

STATUTE USED

Code of Criminal Procedure, 1973.


Indian Penal Code

REASONING AND HYPOTHESIS

The main reasoning behind this project is to understand the basis for providing the bail provision
under the code and why not to keep him behind the bars forever. It also tries to analyse the
concept in a much deeper manner and tries to find out the ways in which the relief can be
pleaded in front of the court. The project assumes that social justice is important while
considering a bail plea.

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FACTS IN BRIEF

Mr. Priyank Verma, who is originally from Champaran, Bihar, lived in Delhi with his wife,
Kalpana Verma and his father in law Puneet Verma. Mr. Priyank is at the post of Marketing
Head at the Central Head office of Infosys situated in Delhi.
Mr. Priyank Verma has been allotted a flat from his Company which is located in Anand
Vihar Colony in Delhi. On the eventful night of 31st December 2016, a theft had taken place
in the locality where Mr. Priyank had been allotted and the thieves were hiding in the terrace
of Mr. Priyanks apartment.
Since it was New Years Night, quite a few people of the locality were awake and they
gathered around the building to as to stop the thieves from escaping from the Terrace. Mr.
Sharma, a resident of the locality, called the police.
Inspector Indranath Tripathi came in around 15 minutes after the call had been made. He,
along with two sub inspectors tried to go to the terrace but were resisted by Mr. Priyank for
the reason that he didnt see the thieves going and hiding at the terrace.
Upon this an FIR was filed against Mr. Priyank on 1 st January and he was charged under
section 186 of the Indian Penal Code and after the due orders of arrest from the competent
Magistrate, Mr. Priyank was arrested by Police on 3 January 2017

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1. UNDERSTANDING BAIL

RIGHT TO BAIL

The Supreme Court of India has delivered several cases wherein it has reminded that the basic
rule is bail and not jail. One such instance came in State Of Rajasthan, Jaipur vs Balchand @
Baliay case which the apex court decided on 20 September, 1977 and held that the basic rule is
bail, not jail, except-where there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating other troubles in the shape of repeating offences or
intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the
court.

The bench of Krishnaiyer, V.R. had observed that when considering the question of bail, the
gravity of the offence involved and the heinousness of the crime which are likely to induce the
petitioner to avoid the course of justice must weigh with the court. Taking into consideration the
facts of the case the apex court held that the circumstances and the social milieu do not militate
against the petitioner being granted bail.

PROCESS OF BAIL

When you are an accused of some crime and arrested to record your statement and take
information like the name, residence address, birth place, charge filed against you, etc. The
police officer may also check back the criminal record if any in the police station and ask for
finger prints to files a case against you. The crimes that are bailable and simple, you will be
allowed to apply for bail immediately.

However, if the crime is a little bit complex and non-bailable, you may wait for 48 hours to claim
your right to bail in the court wherein you are given a hearing. Depending upon the facts of the
case, the judge decides whether you should get bail or not. Also, in situation you are given bail
you are asked to deposit money with the court. Generally, in certain smaller crime cases, a
standard amount is asked to be deposited for awarding the bail. 11

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USUAL BAIL CONDITIONS
When it comes to section 436 of the Cr.P.C, it has been stated that:

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: Provided that
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 as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of sub-
section (3) of section 116 or section 446A 1 .

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply
with the conditions of the bail- bond as regards the time and place of attendance, the Court may
refuse to release him on bail, when on a subsequent occasion in the same case he appears before
the Court or is brought in custody and any such refusal shall be without prejudice to the powers
of the Court to call upon any person bound by such bond to pay the penalty thereof under section
446.

However, 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 offense. 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 offenses.

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

IN THE COURT OF Sessions Judge

In Re:

Priyank Verma
SO Mr. Puneet Verma
Galaxy Apartment, Anand Vihar Colony
Delhi . Applicant
Versus

State .Respondent

FIR No. : 73/2017 Dated 1st January 2017 Police Station: Anand Vihar

Offence Under Section: Section 186 of the Indian Penal Code

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. Priyank
Verma by lodging a complaint with the Anand Vihar Police Staion on 1st January 2017 for
offence under section 186 of the IPC. The applicant/accused has been arrested by the Police
of Police Station: Anand Vihar subsequent to the above complaint.

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2. That it is submitted that the allegations made against the applicant 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 the applicant voluntarily resisted the entry of
the Inspector Indrajeet Tripathi and two sub-inspectors Sharma and Verma in the terrace of
the apartment where the thieves were hiding.

3. That the applicant is a permanent resident of Galaxy Apartments, Anand Vihar Colony,
Delhi and earning livelihood by working as marketing head in the central headoffice of
Infosys situated in Delhi. The applicant has his old father dependent upon him and the
applicant is the only bread earner for the family.

4. That the applicant is innocent and had a reason to believe that the thieves were not
hiding in the terrace as he was there and didnt see them enter the terrace.

5. That by getting the applicant 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 the applicant is 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:-

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(a) That the applicant may be ordered to be released on bail and this application for bail
may kindly be allowed;
(b) That the directions may be issued to the police to get the applicant medically examined
at the immediately
(c) 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.

Applicant

Through Advocate

[Kanjarwala and Co.]


Advocates For the Applicant
12th floor, Hindustan Times House
Delhi

Note:-

1. This application is filed through the father and next friend of the applicant, Sh. Puneet
Verma. It is, therefore, prayed that the application of the applicant/accused may kindly be
allowed and the applicant may kindly be released on interim bail in the interest of Justice.
2. That the applicant is under police custody. Therefore, the requirement of affidavit and
signature may kindly be dispensed with.

Applicant
Through, Advocate
[Kanjarwala and Co.]
Advocates For the Applicant
12th floor, Hindustan Times House
Delhi

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IN THE COURT OF Sessions Judge

Priyank Verma
SO Mr. Puneet Verma
Galaxy Apartment, Anand Vihar Colony
Delhi . Applicant
Versus

State .Respondent

Affidavit in support of the application under Section 436 of CrPC

I, Priyank Verma, 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 7 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 Delhi on 4th January 2017.

Deponent

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CONCLUSION

In this research work I have tried to highlight the meaning of words drafting, pleading and
conveyancing. I have also tried to mention what is meant by bailable and non-bailable offences
and also the instances when the court shall grant bail to the accused. I have in this project drafted
a bail application which is submitted in the court for bail petition. It is thought that from the
various schemes the government operates for rural employment, loans to farmers etc, a portion of
the funds which it transfers to the panchayat for developmental work of the same should be set
aside and kept to meet the bail amount for undertrials belonging to the particular panchayat /
block. The utilization of this fund would be in the hands of the elected leaders of the society with
the representative of district collector / district magistrate being a part of the system. This would,
go a long way in securing freedom for scores of undertrials who would then be able to contribute
to society thereby playing an important role and forming part of the national mainstream. Such a
scenario will have the effect of reducing the burden of over crowding in jail.

The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent
hardened criminals from exercising their deleterious influence over undertrials. Such segregation
would also change the attitude of jail authorities and society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in reformative
homes instead and asked to do community service till the time they are released on bail.
Elementary education facilities must be granted to those under trials who are uneducated and
illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should
be available to the masses including those who do not have the financial capacity to afford it.

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BIBLIOGRAPHY

http://www.legalserviceindia.com/articles/bail_poor.htm]
https://www.kaanoon.com/indian-law/what-is-the-law-regarding-bail-in-india/
https://indialawyers.wordpress.com/2011/11/26/law-on-bail/
Bail on remand, Sudhir S Srigaokar, pg.49, para 5.
https://indiankanoon.org/search/?formInput=provisions%20for%20bail
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/9/09_chapter%203.pdf
S Nagraja, Bail by Police, Pg 34, Para 5.

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