DRAFTING OF APPLICATION FOR ANTICIPATORY BAIL AND

Drafting, Pleading & Conveyancing

FACULTY OF LAW

UNIVERSITY of LUCKNOW
SUBMITTED TO: SUBMITTED BY:

Mr. kaushalendra Pratap Singh name: - Utkarsh tiwari

(GUEST FACULTY, Sec: - b

Faculty of law) Roll no: - 180013015040

ll.b. (hons.) 8th semester

 DRAFTING OF APPLICATION FOR ANTICIPATORY BAIL AND BAIL

ACKNOWLEDGEMENT
I would like to take this opportunity to express my sincere thanks to Mr. RAGHVENDRA
CHAUDHARY, Guest Faculty, Faculty of Law, University of Lucknow, and who gave me an
opportunity to write on this topic and also gave his valuable suggestions to complete this project
and without him this project would not have reached this shape. I would also like to thank my
family, without their love and support this project would not have completed. Last but not the
least; I would like to thank my friends who were very helpful throughout the completion of the
project.

DECLARATION
I the undersigned solemnly declare that the project report DRAFTING OF APPLICATION
FOR ANTICIPATORY BAIL AND BAIL is based on my own work carried out during the
course of our study under the supervision of Mr. KAUSHALENDRA PRATAP SINGH.

I assert the statements made and conclusions drawn are an outcome of my research work. I
further certify that

I. The work contained in the report is original and has been done by me under the general
supervision of my supervisor.

II. The work has not been submitted to any other Institution for any other
degree/diploma/certificate in this university or any other University of India or abroad.

III. We have followed the guidelines provided by the university in writing the report.

IV. Whenever we have used materials (data, theoretical analysis, and text) from other sources,
we have given due credit to them in the text of the report and giving their details in the
references.

UTKARSH TIWARI

180013015040, SEC B,8TH SEM.

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Table of Contents
ACKNOWLEDGEMENT...............................................................................................................2

DECLARATION.............................................................................................................................2

INTRODUCTION...........................................................................................................................4

 Bail for Bailable offences.....................................................................................................5

 Bail for non-Bailable offences..............................................................................................5

 Anticipatory bail (Section 438 Cr.P.c).................................................................................7

Drafting of Application for Anticipatory Bail in High Court..........................................................9

Drafting of Application for Bail in High Court.............................................................................15

BIBLIOGRAPHY..........................................................................................................................20

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 DRAFTING OF APPLICATION FOR ANTICIPATORY BAIL AND BAIL

INTRODUCTION

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all
of which insist that a developed jurisprudence of bail is integral to a socially sensitized
judicial process”.

– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well
recognized principle among all the judicial systems of the world. Bail, in law, means
procurement of release from prison of a person awaiting trial or an appeal, by the deposit
of security to ensure his submission at the required time to legal authority. The monetary
value of the security, known also as the bail, or, more accurately, the bail bond, is set by the
court having jurisdiction over the prisoner. The security may be cash, the papers giving title to
property, or the bond of private persons of means or of a professional bondsman or bonding
company. Failure of the person released on bail to surrender himself at the appointed time
results in forfeiture of the security. Courts have greater discretion to grant or deny bail in the
case of persons under criminal arrest.

The Criminal Procedure Code, 1973, does not define bail, although the terms bailable
offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: "
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 enforce, and non-bailable offence means any
other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds
in criminal cases. 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. Thus, it is the discretion of the court to put a
monetary cap on the bond.

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 DRAFTING OF APPLICATION FOR ANTICIPATORY BAIL AND BAIL

In 2011, The Hon'ble apex court in Sanjay Chandra vs CBI 1 also opined that: “The grant
or refusal to grant bail lies within the discretion of the Court. The grant or denial is
regulated, to a large extent, by the facts and circumstances of each particular case. But at the
same time, right to bail is not to be denied merely because of the sentiments of the community
against the accused. The primary purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the
same time, to keep the accused constructively in the custody of the Court, whether before or
after conviction, to assure that he will submit to the jurisdiction of the Court and be in
attendance thereon whenever his presence is required”. Recently, Hon’ble Supreme Court, in
Aasu vs. state of Rajastan (Criminal Appeal NO.511 of 2017 Dt.09-03-2017) issued a
direction that Bail applications shall be disposed of normally within one week.

 Bail for Bailable offences

According to section 436 of CrPC, If the offence alleged is bailable, then, the Accused is
entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to
Magistrates Court, before Magistrates court. In bailable offences bail is a right and not a
favour. In such offences there is no question of any discretion in granting bail. Bail can be
claimed as of right and there is a statutory duty imposed upon the Police Officer as well as the
Court to release a person on bail if he is prepared to give bail. Such a person can also be
released on his own bond in a fit case. It is only where the accused is unable to furnish bail then
he should be kept in detention.

However, where the offences alleged are both Bailable and Non-Bailable, the offence would
be tried as Non Bailable offence, and benefit of securing Bail on the premise of Bailable
offence would not be available to the accused.

 Bail for non-Bailable offences

The provisions of section 437 empower two authorities to consider the question of bail,
namely (1) a court and (2) an officer-in-charge of the police station who has arrested or

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detained without warrant a person accused or suspected of the commission of a non-bailable

offence. Although this section deals with the power or discretion of a court as well as a police
officer in charge of police station to grant bail in non- bailable offences it has also laid down
certain restrictions on the power of a police officer to grant bail and certain rights of an accused
person to obtain bail when he is being tried by a Magistrate. Section 437, Criminal Procedure
Code, deals with the powers of the trial court and of the Magistrate to whom the offender is
produced by the police or the accused surrenders or appears, to grant or refuse bail to person
accused of,or suspected of the commission of any non-bailable offence.

The power to release on bail a person accused of a non-bailable offence is conferred upon only
one class of police officers, namely an officer-in-charge of the Police Station under section 437
sub Section (I). Since the power to grant bail is permissive and not obligatory, it has to be
exercised with great caution because of the risk and stakes involved. Before exercising his
power, a station officer ought to satisfy himself that the release on bail would not prejudice the
prosecution in bringing home the guilt of the accused. In case the officer in charge admits an
accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary
and preserve the bail bonds until they are discharged either by the appearance of the accused in
court or by the order of a competent court.

For the purpose of bail in non-bailable offence, the Legislature has classified them under two
heads: (1) those which are punishable with death or imprisonment for life; (2)those which
are not so punishable.

In case of an offence punishable with death or imprisonment for life a station officer
cannot enlarge a person on bail, if there appears reasonable grounds for believing that he has
been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be
considered by a police officer for the purpose of granting bail. These matters may be taken in
view by a court only. An officer- in-charge of the police station may grant bail only when there
are no reasonable grounds for believing that the accused has committed a nonbailable offence or
when the non-bailable offence complained of is not punishable with death or life imprisonment.

Powers of the High Court or Court of Session in granting bail (section 439 of the Code of
Criminal Procedure, 1973): According to Section 439(1) of the Code of Criminal Procedure, a
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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 sub-section (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
any person on bail be set aside or modified. However, 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. As per Section
439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions may direct that
any person who has been released on bail under Chapter XXXIII (i.e., relating to bail) be
arrested and commit him to custody.

 Anticipatory bail (Section 438 Cr.P.c)

The post-emergency year has witnessed a spate of petitions for anticipatory bail. The petitioners
were in many cases influential persons who had wielded enormous powers during emergency
and who were, in the postemergency era, apprehensive of arrests on the charges of corruption,
misuse or abuse of official positions, etc. The persons involved in the anticipatory bail
proceedings being rich and mighty, they made every effort to use the law and its machinery to
their maximum advantage. In this process the courts were required to interpret the law discreetly
and with great precision and circumspection. The law relating to anticipatory bail has received,
thereby, impetus in the process of its growth and sophistication. Right to life and personal
liberty is an important right granted to all the citizens under Article 21 of the Indian
Constitution and it is considered as one of the precious right. Under Indian criminal law, there is
a provision for anticipatory bail under Section 438 of the Criminal Procedure Code 1973.

The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the
necessity of introducing a provision in the Code of Criminal Procedure enabling the High
Court and the Court of Sessions to grant “anticipatory bail”. This provision allows a person
to seek bail in anticipation of an arrest on accusation of having committed a non-bailable

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offence. The very basic purpose of insertion of this provision was that no person should be
confined in any way until and unless held guilty.

Anticipatory bail under criminal code of procedure

Where any person has a reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail and
the court shall provide him anticipatory bail after taking into consideration the following
factors, namely-

1. The nature and gravity of the accusation.

2. The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence
3. The possibility of the applicant to flee from justice.
4. Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail.

The provision of anticipatory bail has been restored in Uttar Pradesh after 43 years,
paving the way for the accused to get advance bail in non-bailable offences. The provision was
revoked in the state during the Emergency in 1976. Principal secretary, Home, Arvind
Kumar, said Section 438 (anticipatory bail) was removed from the Code of Criminal Procedure
1973 through the Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 1976.

There was a demand for restoration of anticipatory bail in the state and writ petitions were also
filed in courts for this purpose. The State Law Commission had recommended restoration of
this provision in its third report in 2009. A committee constituted by the state government
under the chairmanship of principal secretary, Home, had also recommended the restoration.
The state assembly passed ‘The Code of Criminal Procedure (Uttar Pradesh Amendment) Bill,
2018’ on August 31, 2018 for restoration of anticipatory bail in the state. President Ram Nath
Kovind approved the Amendment Bill on June 1,2019.

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Drafting of Application for Anticipatory Bail in High Court

In Crime Case No. XX of 20XX Under Section

(Mention the section under which FIR is filed, for
example: - 498A, 304B, I.P.C. & under section 3/4
D.P. Act), Police Station (XX), District (XX).

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION NO. OF 2022

(Under Section 438 Cr.P.C.)

DISTRICT – XXXX

NAME OF THE APPLICANT ((W/0, S/0, D/0) XXXXX)

Resident of village XXXXXX, P.S. XXX

District XXXXXX.

…… Applicant

Versus

STATE OF UTTAR PRADESH …………Opposite Party

In Crime Case No. XX of 20XX Under Section

(Mention the section under which FIR is filed for
example: - 498A, 304B, I.P.C. & under section 3/4
D.P. Act), Police Station (XX), District (XX).

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
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 DRAFTING OF APPLICATION FOR ANTICIPATORY BAIL AND BAIL

The humble application of the applicant named above most respectfully sheweth as
under:

That full facts and circumstances have been set-forth in the accompanying affidavit, which
forms part of this application.

PRAYER.

It is, therefore, most respectfully prayed that the Hon'ble Court may direct the release
of the applicant on bail in the event of the arrest by the police in Crime Case No XX of 20XX
Under Section (Mention the section under which FIR is filed FOR EXAMPLE: - 498A, 304B,
I.P.C. & under section 3/4 D.P. Act), P.S.XX District XX.

Any other order which the court may deem fit and proper in the facts and circumstances of the
case may also be passed in the favor of the applicant.

Dated:

(ADVOCATE NAME)

Advocate

AOR A/K XXX/XX (ADVOCATE ROLL)

Counsel for the Applicant

Chamber No.XX, H.C.,Allahabad.

Mobile No. XXXXXXXXXX

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

AFFIDAVIT

IN

CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION NO. OF 2022

(Under Section 438 Cr.P.C.)

DISTRICT – XXXX

NAME OF THE APPLICANT ((W/0, S/0, D/0) XXXXX)

Resident of village XXXXXX, P.S. XXX

District XXXXXX.

…… Applicant

Versus

STATE OF UTTAR PRADESH …………Opposite Party

Affidavit of (“NAME OF THE APPLICANT”) aged about

XX (greater than 18 years) years S/O, D/O, W/O “EFGH”
Resident of village XXXX, Post XXXX P.S. XXXXX
District XXXXXXX.

Religion: - XXX (e.g. Hindu)

Occupation: - XXXXX (e.g. Agriculturalist)

Aadhar No. XXXXXXX

(Deponent)

I, the deponent above named do hereby solemnly affirm and state on oath as under:

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1. That the deponent is the sole applicant in the above noted anticipatory bail
application and as such he/she is well conversant with the facts deposed herein to
below.
2. That the incident taken a place village (“XX”) on XX.XX.20XX and the First
Information Report registered on XX.XX.20XX at XX.XX A.M/P.M. distance
between place of occurrence and police station 6 KM in Crime Case No XX of
20XX Under Section (e.g. 498A, 304B, I.P.C. & under section 3/4 D.P. Act),
Police Station XX District XX against the applicant. A true/photo copy the First
Information Report dated XX.XX.20XX is enclosed herewith as Annexure-1 to
this affidavit.
3. That the present anticipatory bail application filed by the applicant does not fall
under the offences provided in sub section (6) of the section 438 Cr.P.C.
4. That the applicant/ deponent is giving undertaking that he/she has not filed any
application under section 438 Cr.P.C before this Hon’ble Court either at
Allahabad or Lucknow or before any other High Court in India, pertaining to the
same subject matter.
5. That the applicant filed the anticipatory bail application no. XXXX of 20XX
“Applicant Name” versus State of U.P. before the Additional Session Judge Court
No. 1 (Name of the District Court) at (District) and the same aforementioned
application was rejected on XX.XX.20XX. A photocopy and certified copy of the
order dated XX.XX.20XX is being enclosed herewith and marked as Annexure-2
to this affidavit.
6. {FACT OF THE CASE NOW}
7. That whole prosecution story is false, fabricated and concocted against the
applicant and without any basis.
8. That the applicant is falsely implicated due to malice intention for harassing the
whole family.
9. That there is no criminal history against the applicant except the present first
information report.

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10. That the applicant further undertake not to tamper with the evidence or the
witness in any manner.
11. That the applicant shall not leave India without the permission of the court.
12. That the applicant is peace loving person having good social and law abiding
citizen and also he is responsible member of his family.

That in view of the aforesaid facts and circumstances, of the case it is expedient in the interest
of the justice that this Hon’ble Court may graciously be pleased to allow the present application
and grant anticipatory bail to the applicant in the first information report dated XX.XX.20XX
bearing Crime Case No XX of 20XX Under Section (Mention the section under which FIR is
filed FOR EXAMPLE: - 498A, 304B, I.P.C. & under section 3/4 D.P. Act), P.S.XX District
XX. During the pendency of the present application before this Hon’ble Court Any/ Or other
order which the court may deem fit and proper in the facts and circumstances of the case may
also be passed in the favor of the applicant.

That the contents of Para of the

affidavit are true to my personal knowledge and those of paras of
the affidavit are true on the basis of record and those of paras of the
affidavit are true on the basis of legal advice, which all the deponent believes to be true, no
part of it is false and nothing material has been concealed in it.

So help me god.
Deponent .

I,(“ADVOCATE NAME”), Advocate, High Court , Allahabad do hereby declare

that the person making this affidavit and alleging himself is true and is known to me on the
basis of record and I am satisfied that he/ she is the same person.

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(“ADVOCATE NAME”)
Advocate.

Advocate on Roll A/K XXX/XX

Solemnly affirmed before me on this day of April, 20XX at about

A.M./P.M. by the deponent who has identified by the aforesaid Advocate.

I have satisfied myself by examining the deponent he understood the contents of

this affidavit, which have been read over and explained to him by me.

OATH COMMISSIONER.

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Drafting of Application for Bail in High Court

In Crime Case No. XX of 20XX Under Section

(Mention the section under which FIR is filed FOR
EXAMPLE: - 498A, 304B, I.P.C. & under section 3/4
D.P. Act), Police Station (XX), District (XX).

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

CRIMINAL MISC. Ist BAIL APPLICATION NO. OF 2022

( Under Section 439 Cr.P.C. )

DISTRICT – XXXX

NAME OF THE APPLICANT ((W/0, S/0, D/0) XXXXX)

Resident of village XXXXXX, P.S. XXX

District XXXXXX.

…… Accused Applicant

( In Jail since
XX.X.20XX)

Versus

STATE OF UTTAR PRADESH …………Opposite Party

In Crime Case No. XX of 20XX Under Section

(Mention the section under which FIR is filed FOR
EXAMPLE: - 498A, 304B, I.P.C. & under section 3/4
D.P. Act), Police Station (XX), District (XX).

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To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble application of the applicant named above most respectfully sheweth as
under:

That full facts and circumstances have been set-forth in the accompanying affidavit, which
forms part of this application.

PRAYER.

It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be
pleased to release the accused -applicant on bail in Crime Case No XX of 20XX Under Section
(Mention the section under which FIR is filed, for example 498A, 304B, 201 I.P.C. & under
section 3/4 D.P. Act), P.S. XX District XX during trial to the satisfaction of court concerned in
the interest of justice.

Any other order which the court may deem fit and proper in the fact and circumstances of the
case may also passed in favor of the applicant.

Dated:

(ADVOCATE NAME)

Advocate

AOR A/K XXX/XX (ADVOCATE ROLL)

Counsel for the Applicant

Chamber No.XX, H.C.,Allahabad.

Mobile No. XXXXXXXXXX

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

AFFIDAVIT

IN

CRIMINAL MISC. Ist BAIL APPLICATION NO. OF 2022

(Under Section 439 Cr.P.C.)

DISTRICT – XXXX

NAME OF THE APPLICANT ((W/0, S/0, D/0) XXXXX)

Resident of village XXXXXX, P.S. XXX

District XXXXXX.

…… Accused Applicant

(In Jail since

XX.XX.20XX)

Versus

STATE OF UTTAR PRADESH …………Opposite Party

Affidavit of (“ABCD”) aged about XX (greater than 18

years) years S/O, D/O, W/O “EFGH” Resident of village
XXXX, Post XXXX P.S. XXXXX District XXXXXXX.

Religion:- XXX (e.g. Hindu)

Occupation:- XXXXX (e.g. Agriculutralist)

Aadhar No. XXXXXXX

(Deponent )

I, the deponent above named do hereby solemnly affirm and state on oath as under:
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1. That the deponent is the (relation with the applicant like son, son-in-law etc.) of
the accused applicant and doing pairavi on behalf of the applicant and as such he
is well conversant with the facts deposed herein to below.
2. That the applicant is in the jail since XX.XX.20XX in Crime Case No XXX of
20XX Under Section (e.g. 498A, 304B, I.P.C. & under section 3/4 D.P. Act),
Police Station “XX” District “XXX”
3. That the incident taken a place village (“XX”) on XX.XX.20XX and the First
Information Report registered on XX.XX.20XX at XX.XX A.M/P.M. distance
between place of occurrence and police station 6 KM in Crime Case No XX of
20XX Under Section (e.g. 498A, 304B, I.P.C. & under section 3/4 D.P. Act),
Police Station XX District XX against the applicant. A true/photo copy the First
Information Report dated XX.XX.20XX is enclosed herewith as Annexure-1 to
this affidavit.
4. {FACT OF THE CASE NOW}
{STATEMENT OF APPLICANT AND WITNESS UNDER SECTION 161
Cr.P.C AND SECTION 164 Cr.P.C IS ENCLOSED HEREWITH AS
ANNEXURE NO. XX TO THIS AFFIDAVIT.
5. That whole prosecution story is false, fabricated and concocted against the
applicant and without any basis.
6. That the applicant is falsely implicated due to malice intention for harassing the
whole family.
7. That there is no criminal history against the applicant except the present case.
8. That the applicant applied for bail before the Additional District and Session
Judge OF (“DISTRICT”) and same was rejected vide his order dated
XX.XX.20XX. A true and free copy of the bail rejection order dated
XX.XX.20XX is enclosed herewith as Annexure-3 to this affidavit.
9. That this is the first bail application moved on behalf of the applicant before this
Hon'ble Court.

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10. That the applicant is peace loving person having good social and law abiding
citizen and also he is responsible member of his family.
11. That the applicant is ready to furnish his reliable sureties and personal bond and
undertakes not to misuse his bail bonds.
12. That the implication of applicant in the aforesaid case is totally false fabricated
and based on concocted story.
13. That in view of the aforesaid facts and circumstances, the applicant deserves to be
released on bail by this Hon'ble Court to the satisfaction of the court concerned.

That the contents of Para of the

affidavit are true to my personal knowledge and those of paras of
the affidavit are true on the basis of record and those of paras of the
affidavit are true on the basis of legal advice, which all the deponent believes to be true, no
part of it is false and nothing material has been concealed in it.

So help me god.
Deponent .

I,(“ADVOCATE NAME”), Advocate, High Court , Allahabad do hereby declare

that the person making this affidavit and alleging himself to be true, and is known to me on
the basis of record and I am satisfied that he/ she is the same person.

(“ADVOCATE NAME”)
Advocate.

Advocate on Roll A/K XXX/XX

Solemnly affirmed before me on this day of March, 20XX at about

A.M./P.M. by the deponent who has identified by the aforesaid Advocate.

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I have satisfied myself by examining the deponent he understood the contents of

this affidavit, which have been read over and explained to him by me.

OATH COMMISSIONER.

BIBLIOGRAPHY

 THE CODE OF CRIMINAL PROCEDURE, 1973 (ACT NO. 2 OF 1974)

 Bail provisions under the Code of Criminal Procedure, available at:
https://blog.ipleaders.in/bail-provisions-under-the-code-of-criminal-procedure (Visited
on March 25, 2021)

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