When a person is arrested he/she has a legal right to get the bail.

Bail is
the legal release of a person from the custody of the police who is charged
with certain offences.

Bail application

Bail application is filed before the court under Form 45 in the 2nd

schedule for the release of a person in custody. The bail is filed by the
advocate on behalf of the accused. The accused has to furnish bond and
sureties before the court then he is released on the bail. 

Usage

The bail application is filed by the advocates on behalf of the accused of the
provisional release of the accused. The arrest is made in criminal cases to
ensure that the accused must be present before the court during the process
of trial. But, if the accused agreed to be present in the court, without going
into jail. Then, in that case, it is unfair to restrict his personal liberty, so the
provision of bail is included in the provisional laws. The accused may be
charged with bailable and non-bailable offences, but they can be granted
bail. The accused has to follow the necessary condition laid down in his bail
application. If the accused jumps any of the bail conditions, then the police
have the power to arrest the accused.

Necessary contents of the application

These are the following necessary content of the bail application:

 1. The name of the magistrate court under whom the bail application is
filed.

2. The section of CrPC must be mentioned under which the application is

moved.

3. The name of the parties must be mentioned.

4. The FIR number should be mentioned.

5. The name of the police station in which the accused is in custody

should be mentioned.

6. The date on which the accused was taken into custody.

7. The ground on which the accused should be granted bail should be

mentioned.

8. The surety of accused not absconding if bail is granted should be

mentioned.

9. The accused will present before the court whenever required to be

present.

10. The accused will not leave the country without the permission of the
court should be mentioned.

11. The counsel in prayer should ask the court for granting the bail on the
abovementioned ground.

12.The applicant should sign the bail application. 

Tips to write a proper bail application

 Stringent bail conditions

The duty of the advocate appearing on behalf of his client is to adhere to the
strict bail conditions. In cases where the defendant is arrested on breaching
the bail condition, then it is not the duty of the advocate to ask the court to
allow the bail on more stringent conditions. If the prosecution proposes bail
conditions which appear unnecessary onerous then it’s the duty of the
advocate to argue before the court in a normal way. The duty of the
advocate is not to advise their client to agree on any bail condition, as it will
create more problems for the client. The advocate can argue before the court
on less stringent conditions and the magistrate may grant bail on less
stringent conditions.

 Maintain consistency with the existing bail conditions

It is the duty of the advocate to look that the bail condition in the application
must be consistent with the pre-existing bail condition. 

 Order of address
It is important for the applicant to be present in court. He should listen to the
proceedings of his hearing. The formal address should be as follows:

1. The defendant indicates that they are submitting for the bail.

2. The prosecution opposes the submissions of the defendant and

provides the ground for the refusal of the bail.

3. The defendant makes further submission by replying to the opposition

and asking the court to grant the bail.

4. The advocate has to make sure that the submission should be

accurate and concise. The submissions should impress upon the court.
 The advocate should make an argument rather than a scenario. The
advocate should avoid personal style of writing.

Procedure for filing a bail application

There are three types of bail:

1. Bail in bailable offences

2. Bail in non-bailable offences

3. Anticipatory bail

Bail in bailable offences

Section 436 of the Code of Criminal Procedure provides for the bail of a
person alleged of committing a crime which is bailable in nature. The bail is
the right of the person this section further casts an obligatory duty on the
police or the court to grant bail to the person alleged of committing crime
bailable in nature. This section further clears that whenever a person who is
alleged of committing a crime which is bailable in nature makes an
application before the court or the police office then the court or the police
official has to allow the bail. It is also the duty of the police officer to release
the person on his personal bond, in spite of the order of surety, he fails to
produce the surety within 7 days. While casting such duty on police officer
law raises a presumption in favour of the accused to the effect that the
accused is indigent and poor so that he cannot arrange surety and therefore
he has to be released on personal recognizance.
A new Section 436A is included in the year 2005 for the undertrial
prisoners. Under 436A, if a person has undergone half of the maximum
sentence for the alleged offence, then he will be released on the personal
bond with or without the surety.

In Maulana Mohammad Amir Rishadi vs. State of U.P and Anr., the supreme
court held that merely on the basis of criminal antecedents bail cannot be
denied. In Sumit vs. State of U.P, the court held that even if there are other
criminal cases pending the accused can be granted bail. In Chandraswami
and other vs. CBI, it was held that the accused may leave the country after
seeking permission of the court, but the reason given by the accused was to
propagate Hindu religion found to be unsatisfactory, hence the permission
was not granted. In Arnesh Kumar vs. State of Bihar and Anr., it was held
that the Police officer need not arrest accused unnecessarily and the
magistrate did not order detention casually and mechanically. The checklist
under Section 41 must be provided to the police and should be furnished and
filled by the accused. The police officer shall furnish the same before the
magistrate for authorizing the detention.

Bail in non-bailable offences

Under Section 437 of the code of criminal procedure if any person is

suspected of, alleged of, detained for committing any non-bailable offence is
arrested without warrant or appears before a court other than a high court or
court of sessions, he may be released on bail, but such person may not be
released on bail if:
 1. If there is reasonable ground to believe that he is guilty of a crime
punishable with death or life imprisonment.

2. If such offence is a cognizable offence and he had been previously

convicted for an offence punishable with life imprisonment or death, or
an offence punishable with imprisonment for 7 years or he had been
previously convicted for two times of an offence that is cognizable and
non-bailable.

3. He may be released if the age is under sixteen or is a woman or is

sick or infirm.

4. He may be released if it is just and proper so to do for any other

special reason.

5. He may be released on bail if the police officer at any stage of

investigation believes that there is no sufficient ground for non-bailable
offence, or further investigation is required subject to provision of
Section 446, then he may be released on bail bond without sureties.

6. If at any time during the trial and before the judgment, if the court is of
the opinion that the accused is not guilty of any such offence, then it
may release him on bail without sureties.

Anticipatory bail

The anticipatory bail is granted under Section 438 of the Code of Criminal

Procedure. If a person has an apprehension or reason to believe that he can
be arrested for any non-bailable office, then he can go for the anticipatory
bail. The person can go to court or sessions or high court for anticipatory
bail. The prerequisite for the anticipatory bail is that the offence must be
non-bailable. The session court or the high court looks into the merits of
applications. The court while granting the anticipatory bail also peruses the
antecedent of the applicant, it considers the past history of the applicant, the
possibility of the applicant fleeing from justice. The court also looks into the
fact that the accusation is made to humiliate the accused and tarnish his
image in society. If the respective court has not passed any order then the
officer in charge has the power to arrest the person without warrant.

Section 438(2) provides for the following conditions for granting the

anticipatory bail application:

1. The person shall make available for the interrogation before the police
as and when required.

2. The person shall not make any threat, inducement or any promise to
any witness.

3. The person shall not leave India without the permission of the court.

=========================================

Sample of bail application

BEFORE THE DISTRICT AND SESSIONS COURT AT BEGUSARAI

IN THE MATTER OF 

STATE 
ABHISHEK SINGH

FIR NUMBER: 5510/2020

UNDER SECTION: 302/326/420 OF IPC

POLICE STATION: MATIHANI, BEGUSARAI

ACCUSED UNDER CUSTODY SINCE 20TH MARCH, 2020

APPLICATION UNDER SECTION 437 OF CODE OF CRIMINAL

PROCEDURE CODE ON BEHALF OF THE ACCUSED (ABHISHEK SINGH,
S/O- RAMDHESHWAR SINGH, R/0- MATIHANI, BEGUSARAI)

MOST RESPECTFULLY SUBMITTED AS UNDER:

1. That the present FIR has been registered under false and bogus facts.
The facts stated in the FIR are fabricated, concocted and manipulated.

2. That the police have falsely implicated the applicant, the applicant is
the respectable citizen of the society and he has no criminal
antecedents.

3. The facts initiated against the applicant is civil dispute and does not
constitute any criminal case against him.

4. That the applicant is not required in any kind of investigation, nor any
custodial interrogation, no recovery can be made out at the instance of
the applicant.
 5. That the applicant is having good antecedents, he belongs from a good
family, and there are no criminal cases pending against them.

6. That the applicant is a permanent resident and there is no chance of

absconding from the course of justice.

7. That the applicant undertakes to present before the court or police

whenever required to.

8. That the applicant undertakes that he will not, directly or indirectly,

make any inducement, threat or any promise to any person acquainted
with the facts of the case so as to dissuade him to disclose any such
facts to the court or the police officer.

9. That the applicant further undertakes not to tamper with the evidence
or witness of the case 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 condition the
court or police officer willing to impose in relation with the case.

PRAYER

It is therefore prayed that the court may order for the release of the applicant
in the order of the justice. And the other order which the court may deem fit
and proper in the facts and circumstances of the case may be also passed in
the favour of the applicant.
APPLICANT

THROUGH

COUNSEL

Conclusion

The procedure of bail in the country needs to be changed. The recent

amendments in the bail procedure are not sufficient to cope up with the
existing problems. The concept of bail bonds needs to be replaced with
some other effective instrument that will create deterrence in granting bail.
The bail procedure needs to make the poor friendly, the hefty amount
charged by the courts in the bail bond. 

Format of Criminal Appeal to be filed in High Court under Section 374(2)

of Criminal Procedure Code against Judgment of Trial Court.

IN THE HIGH COURT OF _______________ AT _______________

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO _________ OF 20__

IN THE MATTER OF

Mr. ____________________

_______________________
_______________________                                                   Appella
nt

VERSUS

State of ____________________

_______________________

_______________________                                                    Respon
dent

SYNOPSIS

By way of the present appeal under Section 374 of the Code of Criminal
Procedure, the appellants are approaching this Hon'ble Court for setting
aside the final judgment of conviction dated _______ and order on sentence
dated
______________  passed by the court of ______________ _________, in
the Case No. _____ pertaining to FIR No. _____, PS. _____, U/s. ___ IPC
whereby the appellant was held guilty for the offence punishable under
Section ____ IPC and he was sentenced to __years rigorous imprisonment
with fine of Rs. ____/- and in default of payment, to further undergo _
months simple imprisonment. Benefit of Section 428 of Cr.P.C. was given to
the appellant.

(Mention brief summary of the case and error in the Judgment of the Trial
Court)
________________ ________________ _______________ _________
___

The dates and events of the present case are as under:

__/__/20__ FIR No ____ was Registered

__/__/20__ The Appellant was arrested

__/__/20__ Charge sheet was filed under section ___ of IPC before the Ld
_____ Judge.

__/__/20__ Charges were framed under section __ of IPC against the

appellant to which he pleaded not guilty and claimed trial.

__/__/20__ After examining _ prosecution witnesses in support of the

charges PE was closed.

__/__/20__ Statement of accused under section 313 of CrPC was

recorded.

__/__/20__ The Judgment of conviction was passed by the Ld.____ Court

in case No____ whereby the appellant was held guilty and convicted for the
offence punishable under section ___.

__/__/20__ Order of Sentence was passed by the court of Ld____ Judge

whereby the appellant was sentenced to __ years of rigorous imprisonment
and fine of Rs. ____, and in default, to undergo __ months imprisonment.
Benefit of 428 of Cr. P.C. was given to the appellant.
__/__/20__ Hence the Present appeal for setting aside the final Judgment
of Conviction dated _____ and order on sentence dated _____ passed by
the court of Ld. _______ Judge in Case No. ____.

IN THE HIGH COURT OF _______________ AT _______________

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO _________ OF 20__

IN THE MATTER OF

Mr. ____________________

_______________________

_______________________                                                   Appella
nt

VERSUS

State of ____________________

_______________________

_______________________                                                    Respon
dent

APPEAL UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE,

1973 ON BEHALF OF THE APPELLANT HELD IN JUDICIAL CUSTODY
SINCE ____ AGAINST THE JUDGMENT OF CONVICTION DATED _____
AND ORDER ON SENTENCE DATED ____ PASSED BY THE TRIAL
COURT OF ______________________ IN CASE NO. __________
PERTAINING TO FIR NO. _____/20__, U/S. ____ IPC, DATED_____
REGISTERED AT PS. ______________.

TO,
THE HON'BLE CHIEF JUSTICE
AND HIS COMPANION JUSTICES OF THE
HON'BLE DELHI HIGH COURT
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHEWETH:

1. The Appellants is young men at his age of ____ years who was working in
a factory as ________ at ____________, and have been residing in
___________ for last several years and are peace loving and law abiding
citizens, having no previous criminal antecedents. The appellant is in judicial
custody since his arrest in this case on _________.

2. That the appellant above named is preferring the present appeal against
the final judgment of conviction and order on sentence dated ___________
& ___________ passed by the court of ___________ ___________, in the
Sessions Case No. ___________ pertaining to FIR No. ___________, PS.
___________, U/s. ___________ IPC whereby the appellant was held
guilty for the offence punishable under Section ___________ IPC and he
was sentenced to __ years rigorous imprisonment with fine of Rs. _____/-
and in default of payment , to further undergo __ months simple
imprisonment. Benefit of Section 428 of Cr.P.C. was given to the appellants.
The certified copy of judgment and sentence dated ___________ &
___________ are annexed herewith as ANNEXURE-1 (COLLY).

3. That the brief facts emerging from the record of the prosecution and
leading to the filing of the instant appeal are as under :-

(i) That FIR No. ___________ under Section __ IPC was registered at
Police Station ___________, when an information was received at Police
Station ___________ on ___________ that a man is lying in ___________
having injuries caused with knife. Police reached the spot and found a male
dead body. The deceased could not be identified. The dead body was
removed to the mortuary. Poster was got prepared. On the basis of that
poster one ___________ identified the deceased as his son ___________.
The Certified Copy of FIR No. ___________ under Section ____ IPC
registered at PS ___________ along with its English Translation is annexed
herewith as ANNEXURE-2.

(ii) During investigation one ___________ was interrogated who told that on
the intervening night on ___________ he along with the deceased
___________ one factory where the labourers woke up. He and
___________started fleeing but ___________ was apprehended and was
beaten by those persons. At the instance of ___________ appellant was
arrested on ___________ by the police. And the appellants allegedly got the
___________ recovered with which the deceased was beaten.

(iii) On ___________ all the appellant was arrested at

______________________ ___________ in the morning by the police
officials of PS. ___________.
(iv) On ___________ the charge sheet was filed under Section
___________IPC against the appellants before the Ld. MM, concerned at
___________ ___________and on ___________ the case was committed
to the Court of Sessions after compliance of the provisions of Section
207/208 of Cr.P.C and the same was registered as Sessions Case No
___________ in the Court of ___________ ___________. The Certified
copy of the charge sheet along with its English Translation is annexed
herewith as ANNEXURE-3.

(v) On ___________ the Charges were framed under Section

___________ IPC against the appellants by the Hon'ble Trial Court to which
they pleaded not guilty and claimed trial and it was stated in the charge that
no offence under Section ___________ IPC is made out against accused
persons. The certified copy of Order on framing of Charge dated
___________ is annexed herewith as ANNEXURE-4.

(vi) That on ___________ after examining 25 prosecution witnesses, PE

was closed. The certified copy of the all Prosecution Evidence is annexed
herewith as ANNEXURE-5.

(vii) To bring home the guilty of the appellants, the prosecution examined as
many as __ witnesses in support of the charges. Thereafter on
___________ entire incriminating material on record was put to the
appellant, and his statement under Section - 313 of Cr.P.C. was recorded ,
in which they specifically denied the charge.
The appellant examined no witnesses in his defence. The certified copy of
Statement Under Section - 313 of Cr.P.C. is annexed herewith
as ANNEXURE-6.

(viii) On ___________ the Judgment of conviction was passed by the Court

of Sh. ___________, in the Sessions Case No. ___________ whereby the
appellants were held guilty and convicted for the offence punishable U/s
___________ IPC .

(ix) On ___________ the Order on Sentence was passed by the Court of

Sh. ___________ Courts ___________ whereby the appellant was to _
years rigorous imprisonment with fine of Rs. ___________/- and in default,
to undergo __ months simple imprisonment. Benefit of Section 428 of
Cr.P.C. was given to the appellant.

4. That being aggrieved of the said conviction and sentence contained in the
impugned judgment and order, the appellant herein prefers the present
appeal following amongst other grounds:

GROUNDS FOR THIS APPEAL

A. That the impugned judgment passed by the Ld. Trial Court is bad in law
and facts of the case, hence it not sustainable in the eyes of the law.

B. That judgment passed by the Ld. Trial Court is based on conjectures and
surmises and is not supported from the facts and circumstances of case.
C. That the prosecution has failed to prove its case beyond reasonable
doubts as such the Ld. Trial Court should have given the benefit of doubts to
the appellant and should have acquitted them.

D. The witness ___________ , PW__ is the only person on whose

testimony the appellant has been convicted who has deposed in his
examination in chief before the court

_____________________ ______________________ ____________

E. _____________________ ______________________ ____________

F. _____________________ ______________________ ____________

G. That the Ld. Trial Court has failed to consider that prosecution has failed
to prove its case beyond all reasonable doubts.
 

5. That the petitioner has filed no other similar petition in either the Hon'ble
Supreme of India or this Hon'ble court for similar relief.

6. That the present appeal is maintainable because appellants who are the
innocent and poor _________ working in a factory have been convicted by
the Trial Court on suspicion and on the testimony of a person who is a drug
addict and whose whereabouts is not known to the police and who has a
long antecedents of criminal involvement accepted by himself. The
circumstances in this case do not form chain of events strong enough to
bring home the guilt of appellants so the appeal is maintainable to prove the
appellant innocent appraising the evidence in correct perspective.
7. That the appellant craves leave to add , delete, modify or alter any of the
aforesaid grounds of appeal.

PRAYERS

In view of the aforesaid facts and circumstance of this case, it is most

respectfully prayed that the Hon'ble court may be pleased:

1. To set aside the judgment of conviction and order on sentence dated

______________ & ___________ passed by the Court Of Sh.
_______________Delhi in the Case No.__________ pertaining to FIR
______________ under Section ___, P.S. Bawana and consequently to
acquit the appellants;

2. To call for the record of Trial Court;

3. To pass any other or further order (s) as this court may deem fit and
proper in favour of appellant, in the interest of justice.

APPELLANT

THROUGH

____________ADVOCATE

Place:

Date:

 
 IN THE HIGH COURT OF _______________ AT _______________
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO _________ OF 20__

IN THE MATTER OF

Mr. ____________________                                                Appellant

VERSUS

State of ____________________                                        Respondent

AFFIDAVIT

I ______________________ ____ years, S/d/o. _________________

R/o. ____________ ______________ _____, do hereby solemnly affirm
and declare as under:-

1. That I am the _____ and a __________ of the convict ___________ in

the present appeal and as such I am well conversant with the facts and
circumstances of the present matter and am competent to swear this
affidavit.

2. That the accompanying Criminal Appeal U/s. 374 of Cr.P.C. against the
conviction and sentence has been drafted by my counsel under my
instructions

3. The contents of the Memorandum of Appeal and this affidavit have been
read over and explained to me in vernacular and the same are true and
correct. That the contents of the same may be treated as part and parcel of
this affidavit as the same are not being repeated herein for the sake of
brevity.

4. That I have not moved any other similar petition before this Hon'ble Court
or any other High Court or the Hon'ble Supreme Court of India.

5. I declare that what is contained in paragraphs _ to _ and Grounds from

paragraphs A to __ of the Appeal are true and correct to my knowledge and
nothing material pertaining to this case has been concealed from this Hon'ble
Court.

DEPONENT

VERIFICATION
Verified at ___________ on this __ day of ____. 20__ that the contents of
the above affidavit are true and correct to the best of my knowledge and
belief and nothing material has been concealed therefrom.

DEPONENT