The concept of bail can only be understood better, only when people works on the bail

matter personally or directly assist a senior, in researching and drafting the pleading.

That doesn’t take away the fact that all the in-depth knowledge is not important, as this

is the knowledge which actually help the candidate in making their argument stronger.

The format of the bail remains the same all over except for the following

 When the Bail is applied in the CJM court, Session Court or HC the titles changes

according to the section. If the Bail is applied under Section 437, for a cognizable

offence, as a regular bail, then the subject matter is shown Bail Applied under

section 437 CrPC, if applied for a cognizable offence with a punishment less than 7

years, then Applied under Section 439 CrPC, for Anticipatory Bail it is applied under

Section 438 of CrPC, with proper annexure.

 Other thing the nature of arrest, and question of law, that the difference arises in all

the bail application.

 Other things which should be taken into consideration are irregularities of the arrest,

and the subsequent proceeding, like whether the accused has spent more than 14

days in Police Custody, or has the police taken more than 60/90 days times to

submit the charge sheet to the court.

 Other things should be taken into consideration is proper research, like recently in

Siddharth Varadarjan Judgement in 2020, and in Sushila Agarwal v. State (NCT of

Delhi) court has held that the Anticipatory Bail can be applied even after lodging of

FIR and submission of Charge sheet. One has to ensure that it studies the facts,

question of laws raised, and the provisions of the Bail section (437, 438 & 439) very

carefully.

For more deep study I will analyses few judgments for you that how question of law

and provision of Bail section of CrPC is applied with the help of few case laws. Please

do find all other judgements in the group and give a careful reading.

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Being in LLB gives you ample time to read 100s of judgments in deep and through this

your concept develops even more. Which you will not find post your LLB and in your

Judicial Service preparation.

In the matte of Rajeev Sharma v, State of Delhi (NCT), Delhi High Court held that

When No Minimum Sentence Is Prescribed, Accused is Entitled to Default Bail If

Charge-Sheet Not Filed In 60 Days: Delhi High Court 

The court noted that all cases where the minimum sentence is less than 10 years but the

maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will

apply and the accused will be entitled to grant of "default bail" after 60 days in case

charge-sheet is not filed

In the case of Kasi v. State, Supreme Court held that Suo Moto Extension of Limitation

or Lockdown Will Not Affect Right Of Accused To Default Bail. Further the court held

that Supreme Court's suo moto order extending limitation and the lockdown

restrictions of the government will not affect the right of an accused to seek default bail

under Section 167(2) of CrPC. The Court held that the suo moto order extending

limitation cannot be interpreted as extending the limitation period under Section 167(2)

CrPC.

437.When bail may be taken in case of non-bailable offence. -

(1) 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, but he shall not be so released if there appear

reasonable grounds for believing that he has been guilty of an offence punishable with

death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years or

any woman or any sick or infirm person accused of such an offence be released on bail:

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Provided further that the mere fact that an accused person may be required for being

identified by witnesses during investigation shall not be sufficient ground for refusing

to grant bail if he is otherwise entitled to be released on bail and gives an undertaking

that he shall comply with such directions as may be given by the Court.

(2) 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 not reasonable grounds for believing that the accused

has committed a non-bailable offence, but that there are sufficient grounds for further

inquiry into his guilt, the accused shall, pending such inquiry, 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 as hereinafter provided.

(3) 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

abetment of, or conspiracy or attempt to commit, any such offence, is released on bail

under sub-section (1), the Court may impose any condition which the Court considers

necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of

the bond executed under this Chapter, or

(b) 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

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-

section (2), shall record in writing his or its reasons for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-section

(2), may, if it considers it necessary so to do, direct that such person be arrested and

commit him to custody.

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(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-

bailable offence is not concluded within a period of sixty days from the first date fixed

for taking evidence in the case, such person shall, if he is in custody during the whole of

the said period, be released on bail to the satisfaction of the Magistrate, unless for

reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable

offence and before judgment is delivered, the Court is of opinion that there are

reasonable grounds for believing that the accused is not guilty of any such offence, it

shall release the accused, if he is in custody, on the execution by him of a bond without

sureties for his appearance to hear judgment delivered.

438.Direction for grant of bail to person apprehending arrest. -

(1) When any person has reason to believe that he may be arrested on an accusation of

having committed a non-bailable offence, he may apply to the High Court or the Court

of Session for a direction under this section; and that Court may, if it thinks fit, direct

that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section

(1), it may include such conditions in such directions in the light of the facts of the

particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police

officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement,

threat or promise to any person acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of

the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if

the bail were granted under that section.

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(3) If such person is thereafter arrested without warrant by an officer in charge of a

police station on such accusation, and is prepared either at the time of arrest or at any

time while in the custody of such officer to give bail, he shall be released on bail; and if

a Magistrate taking cognizance of such offence decides that a warrant should issue in

the first instance against that person, he shall issue a bailable warrant in conformity

with the direction of the Court under sub-section (1).

439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the

offence is of the nature specified in subsection (3) of section 437, may impose any

condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set

aside or modified: Provided that the High Court or the Court of Session shall, before

granting bail to a person who is accused of an offence which is triable exclusively by the

Court of Session 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.

(2) A High Court or Court of Session may direct that any person who has been released

on bail under this Chapter be arrested and commit him to custody.

Section 167. Procedure when investigation cannot be completed in twenty four hours.

(1) Whenever any person is arrested and detained in custody and it appears that the

investigation cannot be completed within the period of twenty- four hours fixed by

section 57, and there are grounds for believing that the accusation or information is

well- founded, the officer in charge of the police station or the police officer making the

investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to

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the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed

relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may,

whether he has or has not jurisdiction to try the case, from time to time, authorise the

detention of the accused in such custody as such Magistrate thinks fit, for a term not

exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or

commit it for trial, and considers further detention unnecessary, he may order the

accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) 1 the Magistrate may authorise the detention of the accused person, otherwise than

in the custody of the police, beyond the period of fifteen days; if he is satisfied that

adequate grounds exist for doing so, but no Magistrate shall authorise the detention of

the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death,

imprisonment for life or imprisonment for a term of not less than ten years;

1. subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).

2. Ins. by act 10 of 1990, s. 2 (w. e. f 19- 2- 1990 )

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of

the said period of ninety days, or sixty days, as the case may be, the accused person

shall be released on bail if he is prepared to and does furnish bail, and every person

released on bail under this sub- section shall be deemed to be so released under the

provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorise detention in any custody under this section unless the

accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the

High Court, shall authorise detention in the custody of the police. 1 Explanation I.- For

the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the

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period specified in paragraph (a), the accused shall be detained in custody so long as he

does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused

person was produced before the Magistrate as required under paragraph (b), the

production of the accused person may be proved by his signature on the order

authorising detention.]

(2A) 1 Notwithstanding anything contained in sub- section (1) or sub- section (2), the

officer in charge of the police station or the police officer making the investigation, if he

is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not

available, transmit to the nearest Executive Magistrate, on whom the powers of a

Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry

in the diary hereinafter prescribed relating to the case, and shall, at the same time,

forward the accused to such Executive Magistrate, and thereupon such Executive

Magistrate, may, for reasons to be recorded in writing, authorise the detention of the

accused person in such custody as he may think fit for a term not exceeding seven days

in the aggregate; and, on the expiry of the period of detention so authorised, the

accused person shall be released on bail except where an order for further detention of

the accused person has been made by a Magistrate competent to make such order; and,

where an order for such further detention is made, the period during which the accused

person was detained in custody under the orders made by an Executive Magistrate

under this sub- section,

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IN THE COURT OF METROPOLITAN MAGISTRATE, SOUTH-EAST, SAKET DISTRICT
COURT, NEW DELHI

(MM hold the same power of JMFC Class 1 of other State Judicial Service)

BAIL APP. NO. ____/20

IN THE MATTER OF:

XXXXXXXXXXXXXXXXX APPLICANT / ACCUSED PERSON

VESUS
STATE

FIR NO. XXXXXX

ARRESTED ON: XXXXX
P.S.: XXXXXX
DISTRICT: XXXXXXX

(this is one area where freshers commits most of the mistakes)

APPLICATION UNDER SECTION 437 Cr.P.C. ON BEHALF OF XXXXXXXXX (name of

the accused), FOR GRANT OF REGULAR BAIL

MOST RESPECTFULLY SHOWETH:

1. That the applicant namely XXXXXXX aged about: 34 years, S/o XXXXXX is

R/oXXXXXXX, is an honest and law abiding citizen and has acquired education till class

12th and presently is a Professional Singer and Social Activist.(brief Introduction of the

accused)

2. That people all around Delhi and slowly all over India, being felt violated by the CAA-NRC-

NPR and started sit-in peaceful protest and dharnas throughout Delhi and during the third

week of December, many people in exercise to their fundamental rights given under article

19, of the constitution on India, started a peaceful sit-in protest at Road XXXXXXX on 15 th

December, 2019, which was a peaceful protest throughout. (Background of the arrest)

3. That pandemic namely Covid-19, spread out in Delhi during the month of February and as

the situation got worse complete lock down was declared by the GNCTD vide order dated

22-03-2020 and Commissioner of Delhi Police vide order dated 22-03-2020 and was

announced that locked down will begin from 0600 hours from 23-03-2020 till 31-03-2020.

(here you provide all the series of events)

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4. That then, on 24-03-2020 in the evening at around 6:30 pm police reached the said spot, to

get the protest site vacated, despite being removed already, where few people were working

on removing the articulates of the protest, and police officials asked people to go back to

their respective homes.

5. That in furtherance to this, 10 people present at the spot requested the police to not to use

force, but they did not stop and consequently, some people tried to persuade the police, to

stop, but was of no fruit, that later, the 4 people namely XXXX, BBBB, AAAA, and

CCCCC, present at the spot were taken to the police station and named in the FIR NO.

XXXXX dated: XXXXXX, lodged at P.S.: XXXXXXX. That the copy of FIR no.

XXXXX dated XXXXX, is annexed herein as Annexure-A. (sample cannot be given in

the module as the case is still sub judice)

6. That, when the applicant came to know that he has been named in FIR no. XXX, and the

police is on look out for him, he requested his counsel to file anticipatory bail before the Ld.

ASJ, Saket District Court and the same was filed on XXXXX and notice was and the

application was listed for arguments on XXXXX. That on XXXXX, arguments were heard

by LD. ASJ, via video conferencing, and not being convinced with the need of granting

anticipatory bail the Ld. ASJ, rejected the Anticipatory Bail Application. That this was

informed orally by the Ld. ASJ, and the bail order has not been uploaded on the Delhi

District Courts website, till date. That following this the applicant was arrested on 15-04-

2020, by the XXXXXXX Police in connection to FIR No. XXX. (prior legal step taken for

prevention of such arrest)

7. That it is pertinent to mention here that the when the police reached the said spot, the SHO

and ACP/NFC, announced on loud heller to leave the protest spot and asked them to go back

to their respective homes, as due to Covid-19 situation, hearing which many people with

permission of the police left the spot and went back to their respective homes. Then later

some 9 people stayed at the protest sight and argued the police officer. That further, the

applicant was not among the 10 people who argued with the police, as he was not present at

the spot. That this can be evidently seen from the contents of FIR no. XXXX dated XXXXX.

8. That it is pertinent to mention here that, the applicant was not present at the said spot on the

date of incident i.e. 24-03-2020, further, to elaborate, it will be also pertinent to mention here

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 that since the pandemic was on outbreak, the applicant advised everybody involved in the

protest, to stay inside their homes, even prior to the official lockdown order dated 22-03-

2020 and has not visited the protest sight since 21-3-2020. (then you state the basic reason

Why the Bail is applied, in corroboration with the circumstances around the accused)

9. That there are eyewitnesses, who are ready to testify that the applicant was not at the protest

sight on 24-03-2020, rather he was at residence, i.e., the address mentioned above.

(highlighting the lacunae in the investigation by giving the Statement of eye-witnesses)

10. That it is pertinent to mention here that the content of the FIR no. XXXXX, mentions about

the applicant’s role, only among the names of social activists, who were participants in

XXXXXX protest, which was carried out peacefully. It is pertinent to mention here that, the

content of the FIR clearly indicates that the applicant was not present at the spot on 24-03-

2020 and his name is not among the 4 people namely: XXXXXX, XXXXXX, AAAAAAA,

and BBBBB, arrested by the police from the spot.

11. That the contents only suggest that the applicant was one of the participants in the XXXXX

protest. It is also pertinent to mention here that, as the lock down order was announced on

22-03-2020, the applicant had not visited the said area since 21-03-2020.

12. That it is also pertinent to mention here that applicant/applicant assisted the police

authorities, in convincing the people and sending them back home on multiple occasions, due

to safety reasons and other reason as when cited by the Police Officials, prior to the police.

The applicant had held several meetings with the police authorities and has vehemently

helped the police in creating a bridge between people and the police, on several occasions,

during the protest, prior to 22-03-2020.

13. That even on 24-03-2020, when the police reached at the said address, the applicant was not

present at the spot and has no role in the incident, where the 5 protestors namely: XXXXXX,

XXXXX, AAAAAA and BBBBBB, named in the FIR XXXX went into argument with the

police officials, thus attracting section 353 of the Indian Penal Code. It is pertinent to

mention here that as the applicant was not present at the spot on the said date and time, thus,

offence under section 353 of the Indian penal is not made out or substantiated against the

applicant. Despite that the applicant was arrested XXXX police on 15-04-2020.

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14. That it is pertinent to mention here that till 22-03-2020, the protest was peaceful was

exercised by the people, under the rights enshrined article 19 of the constitution of India and

gathering of people was not restrained, it was only after the order dated 22-03-2020,

gathering of people was restrained and the applicant had not visited the said spot since 21-3-

2020, and was also not present at the spot on the date of event i.e. 24-03-2020, hence, the

sections i.e. 186,188,269,341 of the IPC, also do not substantiate against the said applicant.

(the reason for the arrest was illegal, considering the charges made by police itself is

frivolous, lacking evidence)

15. That the other offences made out in the FIR are 186, 188, 269, 341, 34 of the Indian Penal

Code are bailable offences, which though does not substantiate, because he was not present at

the said spot on the said time, as can be seen from the contents of the FIR no. CXXXX dated

24-03-2020, but still the applicant was arrested on 15-04-2020. Further, as the offences under

186, 188, 269,,341 and 34 are bailable offences, and thus the applicant has all merits favoring

his case for grant of regular bail.

16. That it is also pertinent to mention here that due to Covid-19, breakout through the world,

supreme court vide order dated: 23-03-2022, said ‘Having Regard to provisions of Article 21,

it has become imperative to ensure that the spread of Corona Virus within the prison is

controlled and further suggested on releasing of prisoners, who have not been convicted or

are under trial for offences for which prescribed punishment is upto 7 years or less.

Overcrowding of prisons is still one of the biggest problems was taken up by Hon’ble

Supreme Court in Suo Moto Writ Petition (C) No.: 1/2020. By this order Hon’ble Supreme

Court is well aware of the severity of the pandemic and in light it may also be suggested,

when the Hon’ble Supreme Court is directing release of Prisoners, then in such situation

making arrest of the applicant or any other purpose would defy the purpose of Suo Moto Writ

Petition. That the copy of the Order dated 23-03-2020, is annexed herein as: ANNEXURE-

B.

17. That it is also pertinent to mention here that owing to the outbreak, Hon’ble Supreme court

vide Suo Moto W.P.(C), has also granted exemptions from arrest for a period of 45 days, in

offences which are not of serious nature. In the present case one Non-Bailable offence under

353 of IPC, is not substantiated against the applicant, while other sections i.e. 186, 188, 269,

11
 341 and 34 are bailable offences, which indicates the offences are not of serious nature, thus

the applicant has right to be released on bail, thus avoiding the overcrowding of jails.

18. That it is further important to mention here that Kerala High Court vide order dated: 25-03-

2020, suggested, ‘therefore, taking note of the said situation, we are of the firm view that,

right of personal liberty guaranteed under article 21 of the Constitution of India, should not,

at any rate, be infringed by arresting an accused, except in matters, where arrest in

inevitable’. That the copy of the Order dated 25-03-2020, is annexed herein as:

ANNEXURE-C.

19. That thus, in light of the orders mentioned above of the Hon’ble Supreme Court, and Kerala

High Court understands that the overcrowding of Prisons, is one of major concerns and

should be dealt accordingly. In view of the same the applicant requests the Hon’ble Court for

Protection of his Fundamental Rights enshrined under art. 21.

20. That the applicant is law abiding Indian citizen and has no criminal history of any heinous

crime till date.

21. That it is pertinent to mention here that the applicant is professional singer and is doing good

in his career and being arrested in criminal charges in which the applicant has no role

assigned by the police, which attracts any of the offences mentioned in the FIR No. 43, have

a great potential of destroying his career.

22. That the applicant is a married man and a father of two school going children and is the only

bread earner in the family and during such hard times, when the pandemic on outbreak has to

provide food safety and healthy environment to his family and for that the applicant needs to

be with the family to take care of them.

23. That the said applicant has strong merits in his case and has a fit case for grant of regular bail

under section 437 Cr.P.C.(Under what provision you seek remedy)

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24. That the accused affirms and assures the court that he’ll actively co-orperate with the

investigation officer and will be present, each and every time, at the spot, whenever and

wherever, called upon, by the Investigation Officer or the Hon’ble Court and will provide all

the information sought by the police.

PRAYER

In view of the above-mentioned facts and circumstances, it is most humbly prayed to the Hon’ble

Court to:

 Allow the present application and Grant Regular bail to the applicant.

 Pass any further order, the Hon’ble Court deems fit.

Complainant
Through Counsel
Adv Rahul Tiwari
Gurugram District court
Date
Place: Gurugram

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