Application of bail under Section 436 of Cr.P.

APPLICATION OF BAIL UNDER SECTION 436 OF CR.P.C.

SUBMITTED TO:
MR. VISHAL DIXIT

(FACULTY: DRAFTING, PLEADING AND CONVEYANCING)

SUBMITTED BY:
EKTA KUMARI

SEMESTER VIII, SECTION C

ROLL NO. 63

SUBMITTED ON:
18.03.2019

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR,

CHHATTISGARH, 492002
 Application of bail under Section 436 of Cr.P.C

ACKNOWLEDGEMENT

I deem it to be my utmost privilege to present this project on- “Application of bail under
Section 436 of Cr.P.C.”

At this juncture, I would like to express our deepest gratitude to Mr. Vishal Dixit, Faculty of
Drafting, Pleading and conveyance at the Hidayatullah National Law University for his immense
resourcefulness and precious guidance in the course of preparing this project.

It is indeed impossible to mention the names of everyone- friends, fellow students, and legal
experts who have helped us formulate our ideas through stimulating discussions.

Therefore, all in all, I take this opportunity to express our heartfelt gratitude to one and all under
whose valuable support our crude brainwave has finally materialized into this cogent and
coherent document.

Ekta Kumari
Semester VIII, Section C,
Roll No. 63

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 Application of bail under Section 436 of Cr.P.C

DECLARATION OF ORIGINALITY

I, Ekta Kumari, have undergone research of the project work titled “Application of bail under
Section 436 of Cr.P.C”, as a student of Drafting, Pleading and Conveyancing. I hereby declare
that this Research Project has been prepared by the student for academic purpose only, and is the
outcome of the investigation done by me and also prepared by myself under the supervision of
Mr. Vishal Dixit, Faculty of Drafting, Pleading and Conveyancing, Hidayatullah National Law
University, Raipur. The views expressed in the report are personal to the student and do not
reflect the views of any authority or any other person, and do not bind the statute in any manner.
I also declare that this Research Paper or any part, thereof has not been or is not being submitted
elsewhere for the award of any degree or Diploma. This report is the intellectual property of the
on the part of student research work, and the same or any part thereof may not be used in any
manner whatsoever in writing.

Ekta Kumari
Roll. No. 63
Semester VIII, Section C

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 Application of bail under Section 436 of Cr.P.C

CERTIFICATE OF ORIGINALITY

This is to certify that Ms. Ekta Kumari, Roll Number 63, student of Semester VIII, Section C of
B.A.LL.B.(Hons.), Hidayatullah National Law University, Atal Nagar (Chhattisgarh) has
undergone research of the project work (3655 words) titled “Application of bail under Section
436 of Cr.P.C”, in partial fulfillment of the subject of Drafting, Pleading and Conveyancing. Her
performance in research work is up to the level.

Place: Atal Nagar ………………………… ……………………………

Date: 18.03.2019 Mr. Vishal Dixit

(Faculty- Drafting, Pleading and Conveyancing)

Hidayatullah National Law University,

Atal Nagar, Chhattisgarh

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 Application of bail under Section 436 of Cr.P.C

TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 6

OBJECTIVES ..................................................................................................................................... 8

RESEARCH METHODOLOGY ............................................................................................................. 8

GENERAL PROVISIONS ON BAIL ....................................................................................................... 9

SCOPE AND APPLICATION .............................................................................................................. 10

FACTS OF THE CASE ........................................................................................................................ 12

APPLICATION UNDER SECTION 436 OF CR. P.C. FOR THE GRANT OF BAIL………………...………13

CONCLUSION.................................................................................................................................. 17

REFERENCES .................................................................................................................................. 18

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 Application of bail under Section 436 of Cr.P.C

INTRODUCTION

The word “Bail” means the security of a prisoner‟s appearance for trial. The effect of granting
bail is, accordingly not to get the prisoner free from jail or custody, but to release him from the
custody of Law and to entrust him to the custody of his sureties who are bond to produce him at
his trial at a specified time and place. Grant of bail is a rule and refusal is an exception. A person
accused of a bailable offence has the right to be released on bail.

The provision under Cr.P.C which enlists the cases where bail can be given is dealt under
Section 436.

Section 436. In what cases bail to be taken.

(1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of
the proceeding before such Court to give bail, such person shall be released on bail: Provided
that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance as hereinafter
provided: Provided further that nothing in this section shall be deemed to affect the provisions of
sub- section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply
with the conditions of the bail- bond as regards the time and place of attendance, the Court may
refuse to release him on bail, when on a subsequent occasion in the same case he appears before
the Court or is brought in custody and any such refusal shall be without prejudice to the powers
of the Court to call upon any person bound by such bond to pay the penalty thereof under section
446.

Bail in case of bailable offences is compulsory. In the matter of admission to bail the Code of
Criminal Procedure makes a distinction between bailable & non-bailable offences. The grant of
bail to a person accused of non-bailable offence is discretionary. But a person accused of bailable

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 Application of bail under Section 436 of Cr.P.C

offence at any time while under detention without a warrant at any stage of the proceedings has
the right to be released on bail in view of section 436 Cr. P.C. 1973.1

When the offence is bailable and accused is prepared to furnish bail, police officer has no
discretion to refuse bail.2 Even when a person suspected of committing a bailable offence is
produced before a magistrate and he is prepared to give bail, Magistrate has no option but to
release him on appropriate bail.3 Magistrate cannot refuse to accept surrender and to bail out an
accused against whom a petition or complaint of bailable offence has been filed.4 The offence
when is bailable, bail has to be granted. If the offence is non-bailable further considerations
arise.5 While adjudicating a bail application detailed examination of evidence and elaborate
documentation of the merits of the case is however to be avoided.6

1
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939
2
Dharmu Naik v. Rabindranath Acharya 1978 CrLJ 864.
3
Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864.
4
K.K. Rao v. State 1982 Mad LJ (Cr). 330.
5
State of Punjab v. Jagjit Singh, AIR 1962 SC 253.
6
Niranjan Singh v. Prabhakar (1980)2 SCC 559.

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 Application of bail under Section 436 of Cr.P.C

OBJECTIVES

1. To understand the meaning and the procedural provisions of bail under the Criminal
Procedure Code, 1973.
2. To learn to draft the application filed before the Court of relevant jurisdiction for bail
under Section 436 of the Criminal Procedure Code, 1973.

RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty of the subject and Library staff have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have
also been referred.

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 Application of bail under Section 436 of Cr.P.C

GENERAL PROVISIONS ON BAIL

Provisions as regards bail can be broadly classified into two categories: (1) bailable cases, and
(2) non- bailable cases. In the former class, the grant of bail is a matter of course. It may be given
either by the police –officer in charge of a police – station having the accused in his custody or
by the court. The release may be ordered on the accused executing a bond and even without
sureties (Sec. 436 (1)). In non-bailable cases, the accused may be released on bail; but no bail
can be granted where the accused appears on reasonable ground to be guilty of an offence
punishable either with death or with imprisonment for life. But the rule does not apply to (1) a
person under sixteen years of age, (2) a woman , or (3) a sick or infirm person. As soon as
reasonable grounds for the guilt cease to appear, the accused is entitled to be released on bail, the
order with reasons therefore should be in writing.

A person released on bail may be taken into custody by order of the Court (s. 437). In the same
way the High Court or the Court of Session may admit a person to bail or reduce the amount of
the bail (ss. 439(1) and 440). As soon as the bail bond is executed, the accused is entitled to be
released from custody (s. 442). When the amount of bail taken is found to be insufficient, the
ourt may demand additional bail (s. 443). A surety who is once accepted is at liberty to apply to
the Court for his discharge; and the accused is then called upon to find fresh sureties. (s. 444)

The discretionary power of the Court to admit to bail is not arbitrary, but is judicial, and is
governed by established principles. The High Court of Allahabad directed that when a particular
person surrenders and makes an application for bail, it should be directed to appear on the date
fixed with a further direction to the police not to arrest him till the disposal of his bail
application.7 But it does not mean that the bail application should be allowed invariably. It may
also be dismissed. Short term release or keeping good conduct during that period shall not be
sole ground for enlarging a person on bail finally. It should be decided on merits only. 8 The
object of the detention of a person is to secure his appearance to abide the sentence of law, the
principal inquiry is, whether a recognizance would effect that end. In seeking an answer to this
enquiry, Court s have considered the seriousness of the charge, the nature of the evidence, the

7
Rajendra Prasad v. State of U.P., (1989) 26 ACC 57 (All).
8
Hidayat Husain Khan (Dr.) v. State of U.P., 1992 Cr.L.J. 3534 (All).

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 Application of bail under Section 436 of Cr.P.C

severity of punishment prescribed for the offence and, in some instances, the severity of the
punishment prescribed for the offence and in some instances, the character, means and standing
of the accused.9 Bail was refused by the Supreme Court to an authorized dealer illegally dealing
in foreign exchange, commonly known as Hawala transaction and who had been instrumental in
transferring huge sums to the militants of Jammu & Kashmir for use in disruptive and terrorist
activities, although there was every likelihood that completion of investigation may take a long
time. Bail was refused having regard to seriousness of allegations against the accused.

SCOPE AND APPLICATION

„Bail‟ connotes the process of procuring the release of an accused charged with certain offence
by ensuring his future attendance in the court for trial and compelling him to remain within the
jurisdiction of the court.10 Where a person who is arrested is not accused of a non-bailable
offences no needless impediments should be placed in the way of his being admitted to bail. In
such cases the man is ordinarily to be at liberty and it is only if he is unable to furnish such
moderate security, if any as is required that he should remain in detention.11

The section is imperative and under its provision the magistrate is bound to release the person on
bail or recognizance.12 But bail means release of a person from legal custody; it presupposes that
he is in custody. Person who is under no such restraint cannot be granted bail.13 The fundamental
principal of our system of justice is that a person should not be deprived of his liberty except for
a distinct breach of law. If there is no substantial risk of the accused fleeing there is no reason
why he should be imprisoned during the period of his trial.

The basis of rule is to release him on bail unless there are circumstances suggesting the
possibility of his fleeing from justice or thwarting the course of justice.14 When bail is refused it

9
Nagendra Nath Chakravarti, (1923) 51 Cal 402.
10
Nathurasu v. State, 1998 Cri LJ 1762 (Mad).
11
Mir Hashamali (1917)20 Bom. LR 121.
12
Praghunandan Pershad (1904)32 Cal 80, 83.
13
Varkey Paily Madthikudiyil, AIR 1967 Ker. 189.
14
State of Rajasthan v. Baichand, 1978 CrLJ 195 (SC).

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 Application of bail under Section 436 of Cr.P.C

is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution

and therefore, such refusal must be rare.15 Where delay take place in the disposal of criminal
proceedings the accused ought not to be kept in custody for an inordinately long time and must
be released on bail except when under extremely rare circumstances it is not possible to do so.16
Appearance under this section includes voluntary appearance.17 When he so surrenders is in
judicial custody of the court and the magistrate cannot reject the bail on the ground that the
person was neither arrested nor had been summoned by court order of Magistrate has granted
interim bail the interim bail would subsist so long as the fresh bail application is not decided by
the Magistrate.18 As offence under sections 8/21 NDPS Act is bailable offence.19 Where inspite
of bail granted the accused is not released on bail immediately due to procedural formalities held
the delay in releasing the accused on bail, stood explained The power to grant bail given by
sections 436 and 437 of the Code vests in the Court before whom an accused appears and is
brought.

The expression “Court” means the Court which has power to take cognizance of the case. A
Court which has only the power to remand under section 107 is not a competent Court for
granting bail. Similarly as Executive Magistrate has no jurisdiction to grant bail except in respect
of offences punishable with fine and or imprisonment up to three months. In relation to a person
not accused of such offences the Magistrate, who has jurisdiction to take cognizance has power
to grant bail even when the accused is in custody on the basis of an order of remand passed by an
Executive Magistrate.

15
Babu Singh v. State of U. P. 1978 CrLJ 651.
16
Hussainara Khatoon v. State of Bihar, 1979 CrLJ 1036.
17
Kali Dass v. SHO, Police Station Reasi, 1979 CrLJ 345 (J&K).
18
Hari Kishan Das v. Union Territory of Chandigarh, 1983 Cri App. R.(SC) 28.
19
Pusai v. State (NCT) of Delhi, AIR 2004 SC 1184.

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 Application of bail under Section 436 of Cr.P.C

FACTS OF THE CASE

Mr. Faizal Khan (hereinafter referred to as the applicant), Son of Syed Ahmad Khan, Faizal
Khan, aged about 50 years, by occupation- Businessman, r/o- 8-2-840, Chauri Sadak, Raipur, is a
paid lorry driver under Sri Shatam of Raipur. On 16-3-2019 at 4.00 p.m. while the applicant was
driving his lorry from Raipur to Bilaspur, an accident occurred near Ghadi Chowk (Raipur).
When XY suddenly crossed the road without regard to the traffic, the applicant's lorry dashed
against XY despite the best efforts of the applicant to avoid the accident. It resulted in the death
of XY. Though the applicant was not at fault, he informed police about the accident.

The Police registered a case under Section 304-A IPC for the offence of causing death by rash or
negligent act and arrested the applicant on the evening of 16-3-2019.

The Honorable Court passed an order, remanding the petitioner for fourteen days when he was
produced before the Court on 17-3-2019.

An application is filed before the Honorable Court to release the accused on bail.

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 Application of bail under Section 436 of Cr.P.C

APPLICATION UNDER SECTION 436 OF CR PC FOR THE GRANT OF BAIL

Draft:

BEFORE THE COURT OF SESSION

AT RAIPUR, CHHATTISGARH

Criminal Case No.______of_______

In the matter of,

State…………………………………………...………………………………………Complainant

versus

Faizal Khan, Son of Syed Ahmad Khan, aged about 50 years, By Occupation Businessman, r/o-
8-2-840, Chauri Sadak, Raipur……………..………………………………..…Accused/Applicant

FIR No. _________

Police Station_____________

Under Section 304 A of IPC, 1860

Imprisoned since 16th day of March 2019

APPLICATION FOR BAIL U/S 436 OF CR.PC, 1973

I, Ms. Ekta Kumari, advocate on the behalf of the above named applicant may hereby showeth
as under-

1. That the above named applicant is a resident of Chauri Sadak. He is a paid lorry driver under
Sri Shatam and of Raipur. On 16th day of March 2019 (16.03.2019) at 4.00 p.m., while the
applicant was driving his lorry from Raipur to Bilaspur, an accident occurred near Ghadi Chowk
(Raipur). When XY suddenly crossed the road without regard to the traffic, the applicant's lorry

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 Application of bail under Section 436 of Cr.P.C

dashed against XY despite the best efforts of the petitioner to avoid the accident. It resulted in
the death of XY. Though the applicant was not at fault, he informed police about the accident.

2. 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.

3. That the applicant has been falsely implicated and arrested in the present case, the applicant is
a respectable citizen of the society and is not involved any criminal case.

4. That the applicant is an innocent person with driving as his only means of livelihood and has
to maintain himself, his wife and two children at present.

5. That the offence alleged against the applicant is a bailable offence.

6. That the applicant is a permanent resident of Raipur. There is no intention or scope for the
applicant to escape from the jurisdiction of the Court if the applicant is released on bail.

7. That the applicant is willing to furnish surety and bail bonds to the satisfaction of this hon‟ble
court for release on bail. The applicant is also willing to join the investigations and bind himself
by the terms and conditions laid down by the law or by this Hon'ble court.

8. That the applicant is not at all required for the investigations. However, if the applicant is
required for investigation, the applicant undertakes to be present as and when required in
accordance with the law.

9. 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.

10. That the applicant further undertakes not to tamper with the evidence or the witnesses in any
manner.

11. That the applicant shall not leave India without the previous permission of the Court.

12. 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.

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 Application of bail under Section 436 of Cr.P.C

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.

Date:18th day of March 2019 (Signature of the Applicant)

Place: Raipur Mr. Faizal Khan

Through

(Signature of the Counsel)

Ms. Ekta Kumari

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 Application of bail under Section 436 of Cr.P.C

BEFORE THE COURT OF SESSION

AT RAIPUR, CHHATTISGARH

Criminal Case No.______of_______

In the matter of,

State…………………………………………...………………………………………Complainant

versus

Faizal Khan, Son of Syed Ahmad Khan, aged about 50 years, By Occupation Businessman, r/o-
8-2-840, Chauri Sadak, Raipur……………..………………………………..…Accused/Applicant

AFFIDAVIT IN SUPPORT OF THE APPLICATION UNDER SECTION 436 OF CRPC

I, Faizal Khan, the above name applicant do hereby solemnly affirms and declare as under:-

1. That the accompanying application under section 436 CrPC has been drafted at my instance
and under my instruction.

2. That the contents of para no. 1 to 12 are true and correct to the best of my knowledge and
belief.
3. That I further solemnly affirm and declare that this affidavit of mine is correct and true, no
part of it is false and nothing material has been concealed therein.

Affirmed here at Raipur on 18/03/2019. Signature

(Deponent)

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 Application of bail under Section 436 of Cr.P.C

CONCLUSION

The bail under Cr.P.C is divided according to the types of offence alleged against the accused.
The basic rules for grant or denial of bail may simply be summarized in the way that there are
only two kinds of offences under the criminal law, bailable offence and non-bailable offence. In
case of bailable offences, as per section 436 Cr.P.C (criminal procedure code 1973) bail has to be
granted to the accused as it is a matter of right for the accused to demand and be granted bail. In
case of non-bailable offences, as per section 437 Cr.P.C and Section 439 Cr.P.C, the grant or
refusal of the bail is a matter of discretion of the court which means bail can be granted by the
court. Only condition is that it cannot be demanded as a right by the accused.

As per Section 50 of Cr.P.C Whenever a person is arrested without warrant, it is the duty of the
police officer to communicate the full detail of the offence for which the person is arrested. Also,
if the offence for which the person is arrested is a bailable one, it is the duty of the police to
inform that he is entitled to be released on bail after giving surety. As per Section 436 of Cr.P.C,
whenever a person accused of a bailable offence is arrested without warrant and is prepared to
give bail, such person shall be released on bail. The discretion to decide the bail amount is with
the Court or with the officer, as the case may be.

Bail is a right and refusal is an exception. However, the courts can impose the conditions while
granting bail. But the conditions should not be unreasonable. Courts have also power to cancel
bail. But power to cancel bail in non-bailable offences must be used sparingly. It is the duty of
the Magistrate to dispose of the bail application as early as possible.

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 Application of bail under Section 436 of Cr.P.C

REFERENCES

STATUTES REFERRED

 Code of Criminal Procedure, 1973

 Indian Penal Code, 1860

BOOKS REFERRED

(1) RatanlalDheerajlal; Code of Criminal Procedure, 17th Edition reprint 2009, Lexis Nexis
Butterworth Wadhwa, Nagpur

(2) RatanlalDheerajlal; Indian Penal Code, 1860, 30th Edition reprint 2009, Lexis Nexis
Butterworth Wadhwa, Nagpur

WEBSITES REFERRED

 http://www.divorcelawyerindia.com/LEGAL%20DRAFTS/Bail/Application-under-
Section-436-of-Cr-PC-for-the-grant-of-Bail.html
 http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/10/10_chapter%204.pdf
 http://www.shareyouressays.com/114927/section-436-of-code-of-criminal-procedure-
1973-cr-p-c-explained

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