This article is written by Abhinav Anand, from DSNLU, Visakhapatnam. This article deals with bail applications. It focuses on different kinds of bail granted to accused. It also deals with different provisions of the code of criminal procedure dealing with bails. 

Introduction

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. 

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