Draft a bail application of accuse under the charge of

section 147 of Cr.P.C.

Submitted By: Anant Ekka

Section- A

Roll no: 26

Semester-VIII

(B.A.L.L.B. Hons.)

Submitted To: Mr. Shreyas Vyas (Faculty D.P.C.)

Date of Submission- 15th February, 2017

Hidayatullah National Law University

 Acknowledgements

First & foremost, I take this opportunity to thank Mr. Shreyas Vyas, Faculty, D.P.C., HNLU,
for allotting me this challenging topic to work on. He has been very kind in providing inputs
for this work, by way of suggestions and by giving his very precious time for some
discussion and providing me resource of his vast knowledge of the subject which helped me
to look at the topic in its very broad sense also to look at some of the very narrow concepts by
expertise view. Therefore she proved to be a database in making this project. Hence I would
like to thank him.

I would also like to thank my dear colleagues and friends in the University, who have helped
me with ideas about this work and also a source for constant motivation and hence they were
a guiding force to me in making of this project. Last, but not the least I thank the University
Administration for equipping the University with such good library and IT lab.

My special thanks to library staff and IT staff for equipping me with the necessary books and
data from the website.

I would also like to thank the hostel staff for providing me a healthy and clean environment
that provided me a great concentration level.

Anant Ekka

Roll No. 26

Semester- VIII

(B.A.L.L.B. Hons.)

Contents
Acknowledgments 2

2
Objectives ... 4

Introduction .... 5

Bail under Code of Criminal Procedure, 19736

Dispute concerning right of use of land or water8

Voluntarily causing hurt by dangerous weapons or means ............................................... 9

Bail application under Section 437 of Cr.P.C. ..10

Bibliography..... 14

Objectives

To Study about the concept of Bail under the Code of Criminal Procedure, 1973.

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 To Draft a bail application of accuse under the charge of section 147 of Cr.P.C.

Introduction

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If a person commits a crime, which demands for his/her arrest, then he becomes liable to be
arrested. Offences which are punishable by law are mentioned under the Indian Penal Code,
1860, whereas the procedure to try and pronounce sentences for those offences is given under
the Code of Criminal Procedure, 1973.

So if a person gets arrested for an offence, he can be released on bail. There are provisions in
Cr.P.C. which facilitate the release of a person on bail. There is no definition of bail in the
Code. In simple words, bail is a process, by which a person arrested is released from
custody/detention.

Chapter XXXIII of the Code of Criminal Procedure, 1973 deals with bail. Section 436 Cr.P.C.
provides for bail in bailable offences, Section 437 envisages provisions for bail in non-
bailable offences, Section 438 provides for Anticipatory bail and Section 439 deals with the
special powers of the High Court and Court of Sessions regarding bail.

Section 439 talks about the Special Powers of High Court or Court of Session regarding bail.
Bail under Section 439 can be filed only when bail under Section 437 has been rejected. Also
bail under Section 439 can only be filed when the accused is in custody.

So, if a persons bail under Section 437 is rejected, he can go for bail under Section 439 of
the Code, provided he is in custody.

In this research project, we will discuss about bail under Code of Criminal Procedure, 1973
and will draft a bail petition under Section 439 of Cr.P.C. on a Fictional Scenario.

Bail under Code of Criminal Procedure, 1973

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There is no definition of bail in the Code. The word bail is derived from the old French
word Bailler, which means to give of to deliver.1 According to the concise Oxford
English Dictionary, bail means temporary release of an accused person awaiting trail,
sometimes on condition that a sum of money is lodged to guarantee his appearance in the
court. In simple words, bail is a process, by which a person arrested is released from
custody/detention.2

However, the terms bailable offence and non-bailable offence have been defined. So we
need to look for other definitions of bail. Bail has been defined in the Law Lexicon as the
security for the appearance of the accused person on giving which he is released pending trial
or investigation.3

Thus what is contemplated by the bail is to procure the release of a person from legal
custody, by undertaking that he shall appear at the time and place designated and submit
himself to the jurisdiction and judgment of the court.4

Chapter XXXIII of the Code of Criminal Procedure, 1973 deals with bail. Section 436 Cr.P.C.
provides for bail in bailable offences, Section 437 envisages provisions for bail in non-
bailable offences, Section 438 provides for Anticipatory bail and Section 439 deals with the
special powers of the High Court and Court of Sessions regarding bail.

A person accused of a bailable offence has on his arrest a right under Section 436 of Cr.P.C.
to be released on bail. In a non-bailable offence, bail may be granted to the accused at the
discretion of court under Section 437 of Cr.P.C. or get anticipatory bail under Section 438 of
the code.5

In several cases the Supreme Court has held that when an accused surrenders or brought
before the court and applies for bail, the subordinate court should be liberal in releasing him

1 Dr. Rega Surya Rao, Lectures on Criminal Procedure Code 327 (2nd Ed. 2015).

2 Ibid at 328.

3 Govind Prasad v. State of W.B., 1975 Cri LJ 1249.

4 Henry Campbell Black, Blacks Law Dictionary 177 (4th Ed. 1968).

5 Dr. A. B. Kafaltiya, Drating, Pleading and Conveyancing 185 ().

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on bail. However each case should be considered on its merits. While granting bail in a non-
bailable offence, the following factors must be considered by the court in particular cases-

1. Nature and seriousness of the offence.

2. The evidence on record available against the accused.
3. Character and circumstances peculiar to the accused.
4. Possibility of the accused to attend trail in case released on bail.
5. Apprehension of any way intimidating witnesses and evidence to be tampered with by
the accused.
6. Chances of absconding or attempt to escape prosecution.
7. Interest of the public or the State.

Section 439 talks about the Special Powers of High Court or Court of Session regarding bail.
Bail under Section 439 can be filed only when bail under Section 437 has been rejected, as it
is stated in Section 437(1) that 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

Also bail under Section 439 can only be filed when the accused is in custody. Although the
High Court has concurrent jurisdiction with the Session Court to grant bail under Section 39,
it is considered desirable by the High Court that the lower courts should be first moved in the
matter. This is especially important because any expression of opinion made by the superior
court is likely to prejudice the trial in the lower court. Therefore, only in exceptional or
special circumstances an application for bail may be directly made to the High Court.6

Bail granted to an accused may be cancelled in the following circumstances7-

1. When during the period of bail the accused commits the same offence for which he is
being tried in the Court.
2. When the accused tampers the investigation or evidence on intimidates the
prosecution witnesses.
3. The accused absconds or goes beyond the reach of his sureties or Court.
4. Accused commits acts of violence in revenge against the police or prosecution
witnesses.

6 Hajialisher v. State of Rajasthan, 1976 Cri LJ 1658 (Raj).

7 Dr. A. B. Kafaltiya, , Pleadings, Drating and Conveyancing 185 (2014 Ed.).

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 Dispute concerning right of use of land or water

Section 147 of Code of Criminal Procedure, 1973 deals with dispute concerning right of use
of land or water. The purpose of proceedings under this section is to prevent a breach of
peace and not to determine or enforce the rights of the parties. Therefore, an order made
under this section remains in force only for a temporary period and is subject to a final
decision of a Civil Court.

The proceedings under this section are quasi civil in nature. The Magistrate has jurisdiction to
pass only prohibitory order which is generally negative in form. But in order to make a
prohibitory order effective he may pass a positive order as well such as removal of an
obstruction etc.

It is well settled by a number of decisions of various High Courts that since right to worship
cannot be regarded as something entirely different from the place of worship and its user,
therefore disputes relating to such right clearly fall within the ambit of this section.

The Kerala High Court, in P.P.P.A. Thangal v. V.T. Lakshadweep has observed that the dispute
regarding use of mosque should attract the provisions of Section 147 and not Section 145
because it does not involve dispute regarding land or boundaries.

Similarly, the disputes as to right to bury in a burial ground, or performance of a religious

ceremony, in a mosque or taking out religious procession from a public way, etc. fall within
the scope of Section 147 and the Magistrate may even issue interlocutory order in order to
prevent hardship to any party or to avoid unpleasant happenings.

The provisions of Section 147 can be invoked only when the right to user (in dispute) was
exercised within three months of the receipt of information or police report in cases of rights
exercisable at all times of the year or was exercised at the last particular occasion or season in
case of periodically recurring rights.

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 Voluntarily causing hurt by dangerous weapons or means

Section 324 of Indian Penal Code deals with offence of voluntarily causing hurt by dangerous
weapons or means. This section punishes voluntarily causing hurt by dangerous weapons or
means. It says that except in cases stated in section 334, whoever voluntarily causes hurt by
means of any instrument for shooting, stabbing, or cutting, or by any instrument which can be
used as a weapon of offence and when so used is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or corrosive substance, or by means of any
explosive substance, or by means of any substance which is deleterious to the human body to
inhale, to swallow or to receive into the blood, or by means of any animal, shall be punished
with simple or rigorous imprisonment for a term extending up to three years, or with fine, or
with both.

Here also, as in the preceding section, cases provided by section 334, that is to say,
voluntarily causing hurt on grave and sudden provocation, have been excepted. The object of
this provision is to penalise more severely such cases of voluntarily causing hurt where
dangerous weapon or means have been used.

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 Bail Application under Section 437 of Cr.P.C

Facts of the Case-

1. Mr. Mahendra Lal, who has land which directly leads to main path of the village.
2. Mr. Ajay Shukla always uses that same land to cross as way of transport with his
cattles for few years.
3. Due to use of that land as way of transport by Mr. Ajay Shukla with his cattles,
various crops were damaged.
4. Because of this they have regular quarrels and sometimes these quarrels even took the
shape of fights among both and many times other villagers had to stop them.
5. After sometime Mr. Mahendra Lal filed a suit against Mr. Ajay Shukla under section
147 of Cr.P.C.
6. The Executive Magistrate gave order in favour of Mr. Mahendra Lal. Thereby
ordering Mr. Ajay Shukla not to use Mr. Mahendra Lal land as a way of transport.
7. After passing of the order, Mr. Ajay Shukla got very angry and on the same day he
went to Mr. Mahendra Lals house with dangerous weapons and attacked him causing
injury thereby.
8. Some villagers saw this and they ran to rescue Mr. Mahendra Lal.
9. Next day Mr. Mahendra Lal filed a F.I.R. thereby accusing Mr. Ajay Shukla under
section 324 of Indian Penal Code.
10. Thus based on the F.I.R. filed by Mr. Mahendra Lal, Mr. Ajay Shukla was arrested by
police and then Mr. Ajay Shukla filed for bail under section 437 of Cr.P.C.

In the Court of Mr. Omprakash Naidu, District and Sessions judge, Bilaspur (C.G.)

In the Matter of:

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 State of Chhattisgarh

V.

Ajay Shukla , S/o Rakesh Shukla, Age- 28 years

Criminal Misc. (M) No. 337/2017

FIR no. - 167/2017

Under Section 324 of Indian Penal Code, 1860

Police Station - Uslapur Police Station, Bilaspur, C.G.

Accused under custody since 24th January, 2017

APPLICATION UNDER SECTION 437 OF THE CODE OF CRIMINAL

PROCEDURE FOR GRANT OF BAIL

MOST RESPECTFULLY SUBMITTED UNDER:

1. That the present FIR has been registered on false and bogus facts. The facts stated in
the FIR are fabricated, concocted and without any basis.
2. That the police has falsely implicated the applicant and arrested him in the present
case, the applicant is a respectable citizen of the society and is not involved any
criminal case.
3. That the applicant is not required in any kind of investigation nor any kind of
custodial interrogation is required, nor any recovery is to be made at the instance of
the applicant.
4. That the applicant is having very good antecedents, he belongs to good family and
there is no criminal case pending against them.
5. That the applicant is a permanent resident and there are no chances of his absconding
from the course of justice.
6. That the applicant undertakes to present himself before the police/court as and when
directed.
7. That the applicant undertakes that he will 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.
8. That the applicant further undertakes not to tamper with the evidence or the witnesses
in any manner.
9. That the applicant shall not leave India without the previous permission of the Court.

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 10. That the applicant is ready and willing to accept any other conditions as may be
imposed by the Court or the police in connection with the case.

PRAYER

It is therefore prayed that the court may order for the release of the applicant on bail in the
interest of justice. Any other order which the court may deem fit and proper in the facts and
circumstances of the case may be also passed in favor of the applicant.

Place: Uslapur, Bilaspur (C.G.) Ajay Shukla

Dated: 28th January, 2017 Applicant

Kushal Pandey

Through Counsel

VERIFICTION

I, Ajay Shukla do hereby verify that the contents of paras 1-10 are correct to my knowledge
and belief. Nothing has been concealed therein.

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Place- Uslapur, Bilaspur (C.G.) Ajay Shukla

Date -.28th January 2017 Applicant

Kushal Pandey

Through Counsel

Biblography

Dr. A. B. Kafaltiya, Pleadings, Drating, and Conveyancing, Universal Law

Publications (2014 Ed.).

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 Dr. Rega Surya Rao, Lectures on Criminal Procedure Code, Asia Law House (2nd
Ed., 2015).
Henry Campbell Black, Blacks Law Dictionary, Thomson Reuters (4th Ed. 1968).

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