ASSIGNMENT NO.

12

BAIL

The Code of Criminal Procedure, 1973 (CrPC) defines Bailable Offence to "mean 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 other offence." The distinction
between Bailable and Non-Bailable Offences is based on the gravity of the offence, danger of
accused absconding, tampering of evidence, previous conduct, health, age and sex of the
accused person. Though the schedule for classification of offences as Bailable or Non Bailable
is provided in CrPC; however, it is mostly the offences which are punishable with imprisonment
for not less than three years that are classified as Non-Bailable.

The question that arises for deliberation is whether there is any scope for grant of Bail in case
the offence falls within the category of Non-Bailable Offence. Section 437 of CrPC is required to
be studied in this regard. Section 437 of CrPC empowers the Court to release an accused
person on Bail. What is interesting to analyse is the balance between right to liberty as defined
under the Constitution of India as well as the principles of law in so far as commission of Non-
Bailable offences is concerned.

The Hon'ble Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan has
observed that "Liberty is to be secured through process of law, which is administered keeping in
mind the interests of the accused, the near and dear of the victim who lost his life and who feel
helpless and believe that there is no justice in the world as also the collective interest of the
community so that parties do not lose faith in the institution and indulge in private retribution."

The aim of arresting a person accused of having committed a crime is to ensure that he/she
does not escape the rigours of law, when proved guilty or that the accused person does not
tamper with the prosecution evidence. While dealing with the issue of grant of bail in non-
bailable offences, it has been held that a person is entitled to his liberty even in case he/ she is
accused of a Non-Bailable offence and the right of an accused person should not be dealt with
by a court in a superficial manner. In fact, CrPC provides that in case the court has sufficient
reason to believe that the case in hand requires further investigation to prove the guilt of the
accused; such person should be enlarged on bail.
It has also been the opinion of courts that since right to liberty is an imperative right of a person,
an application seeking Bail should not be decided in a mechanical and perfunctory manner. It is
also relevant to point out that there may be instances when a woman is detained for being an
accused of committing a Non-Bailable offence. It has been held by various courts that releasing
a woman accused of having committed a Non-Bailable offence on special grounds is not
discriminatory.

In the matter of Mst. Chokhi v. State (AIR 1957 Raj 10), a woman accused of committing murder
of her one child was released on bail as there was no one to look after her other child at home.
Further, it has been the opinion of courts at large that where the prosecution is unable to
persuade the court that there is any reasonable ground for believing that the accused person is
guilty of commission of a Non-Bailable offence, in such case the accused person should be
released on Bail. However, it is necessary to appreciate that there is no specific rule as to when
Bail should be granted. It has been the view of the courts that where a Non- Bailable offence is
not punishable with life imprisonment or with death sentence, Bail should generally be granted
and liberty of an accused should not be compromised with.

The present assignment deals with drafting an application for bail under s. 437 of CrPC.
 IN THE COURT OF METROPOLITAN MAGISTRATE
SOUTH-EAST DISTRICT, DELHI

BAIL APPLICATION NO. __________ OF 2020

IN THE MATTER OF:

STATE
….COMPLAINANT

VERSUS

DHIRAJ KUMAR
S/O Sh. Hari Kamal Kumar
R/O G-132, Kalkaji DDA Apartments
New Delhi-110019
….APPLICANT

FIR NO. _____

U/S/_______
POLICE STATION_______
D.O.A.________

APPLICATION FOR GRANT OF BAIL UNDER SECTION 437 OF CR.P.C.

The accused above named most respectfully showeth :-

1. That the accused above named was arrested by the police on 1st (First) January, 2020
(Two Thousand and Twenty) and has been in judicial custody since then. It is alleged
that on 1st January, 2020, the accused was suspiciously moving on Kalkaji Metro
Station, New Delhi when the police apprehended him, conducted the search and
recovered 3 gms. of smack from his pocket.
2. That the accused has been falsely implicated in the instant case and he has nothing to
do with the alleged offence.
3. That nothing was recovered from the possession of the accused or at his instance and
the so called case property has been planted upon the accused.
4. That the accused is a law abiding citizen and belongs to a very respectable family. He
has never indulged in any illegal activities and commands respect and admiration for his
locality.
 5. That in November, 2019 (Two Thousand and Nineteen), the accused found some
persons selling smack near Hanuman Mandir Connaught Place, New Delhi. The
accused immediately reported the matter to police as the result of which police also
arrested some of the persons. Since that time, those persons who were arrested at the
instance of the accused, were threatening the accused to falsely implicate him in a
criminal case in collusion with police. The accused made a complaint in this regard to
the Dy. Commissioner of Police, true copy of which is annexed hereto as Annexure-A.
6. That after the said complaint, the accused was called by the Vigilance Department, Delhi
Police who enquired into his complaint. True copy of the said notice issued by the
Vigilance Cell is enclosed herewith as Annexure-B.
7. That it is unimaginable that the accused who made a complaint against the sellers of
smack, would himself indulge in such activities.
8. That the accused is a permanent resident of Delhi and there is no chance of his
absconding in case he is released on bail.
9. That there is no chance of the accused absconding or tempering with the prosecution
evidence in the event of release on bail.
10. That the accused undertakes to join the investigation as and when directed to do so.
11. That the accused is not a previous convict and has not been involved in any case of this
nature except the present case.
12. That the present case is a result of clear manipulation by the police.
13. That the accused from all accounts is an innocent person.

It is therefore respectfully prayed that the accused may kindly be reLeased on bail during the
pendency of this case.
APPLICANT
THROUGH
New Delhi
Date: XX.05.20 ADVOCATE
 IN THE COURT OF METROPOLITAN MAGISTRATE
SOUTH-EAST DISTRICT, DELHI

BAIL APPLICATION NO. __________ OF 2020

IN THE MATTER OF:

STATE
….COMPLAINANT

VERSUS

DHIRAJ KUMAR
S/O Sh. Hari Kamal Kumar
R/O G-132, Kalkaji DDA Apartments
New Delhi-110019
….APPLICANT

AFFIDAVIT

I, Dhiraj Kumar, do hereby solemnly affirm and declare as follows :-

1. I am the applicant in the above matter and as such acquainted with the facts of the
above case.
2. That the contents of paras _____ to _____ are true and correct to the best of my
knowledge.
3. That the contents of this application have been drafted by my counsel under my
instructions and the contents of the same have been read over and understood by me
and are true as well as correct to my knowledge.

DEPONENT

VERIFICATION

Verified at New Delhi on this XXth day of May, 2020 that the contents of this affidavit are
true and correct to my knowledge. No material part is false or concealed therefrom.
DEPONENT