DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
DRAFTING, PLEADING AND CONVEYANCE PROJECT _______________________ __________________________________ _______________________ _______________________ _______________________ _________________ _____
BAIL APPLICATION
Submitted to:
Submitted by:
Ms. Shak!"a#a Sa!$a%
A!sh&"a Ma!&
Ass&s"a!" P'()*ss(' +La-
R(## N( /0
B.A.LL.B.+H(!s.1"h S*%*s"*'
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ACKNOWLEDGEMENT
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Sangam )(' %ak&!$ a !%2*' () h*#3)# 5(%%*!"s a!6 5(!s"'5"&7* 5'&"&5&s%s )(' %4 3'(8*5". I (#6 #&k* "( "ha!k h*' )(' a##(&!$ %* "( %ak* 3'(8*5" (! a! a33'(3'&a"* "(3&5 () %4 5h(&5* a!6 "ha" has h*#3*6 %* &! 2*""*' !6*'s"a!6&!$ () "h* s28*5". I a#s( "ha!k "h* 5(%%*!"s a!6 s$$*s"&(!s () %4 s*!&('s, h&5h *'* a#s( () $'*a" ass&s"a!5*. H(*7*', I a% a#(!* '*s3(!s&2#* )(' a## "h* '*%a&!&!$ *''('s * ''('s a!6 &!a6*9a54.
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INDEX Introduction……………………………………………………………………………….. ….4 Meaning
of
Bail……………………………………………………………………………….5 History of Bail................................................................................................................ ...........6 Eolution in England......................................................................................................... .......! "urrent Practice......................................................................................................... ...............# Eolution in $merica………………………….......................................................................% "urrent Practice…………………………………................................................................ ...&' (egal Position in India…………………………………………............................................&' )udicial *rend……………………………………………………….....................................&5 "onclusion………………………………………………………………………………...... &! Bi+liogra,hy………………………………………………………………………………... &% 3 | Page
INTRODUCTION
)ustice as -e kno- -as a right fundamental to all +ut it/s fallacy is eident as money no- results in its fall. 0+1ectiely analy2ed the criminal 1uris,rudence ado,ted +y India is a mere re3ection of the ictorian legacy left +ehind +y the Britishers. *he ,assage of time has only seen a feamendments once in a -hile to satisfy ,ressure grou,s and ote +anks. Pro+a+ly no thought has +een gien -hether these legislations -hich hae eisted for almost seen decades hae taken into account the ,light and the socioeconomic conditions of !78 of the ,o,ulation of this country -hich lies in utter ,oerty. India +eing a ,oerty stricken deelo,ing country needed anything +ut a +lind co,y of the legislations ,realent in deelo,ed -estern countries. *he conce,t of +ail -hich is an integral ,art of the criminal 1uris,rudence also su9ers from the a+oe stated dra-+acks. Bail is +roadly used to refer to the release of a ,erson charged -ith an o9ence on his ,roiding a
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security that -ill ensure his ,resence +efore the court or any other authority -heneer re:uired.
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MEANING OF BAIL Bail in la- means ,rocurement of release from ,rison of a ,erson a-aiting trial or an a,,eal +y the de,osit of security to ensure his su+mission at the re:uired time to legal authority. *he monetary alue of the security kno-n also as the +ail or more accurately the +ail +ond is set +y the court haing 1urisdiction oer the ,risoner. *he security may +e cash the ,a,ers giing title to ,ro,erty or the +ond of ,riate ,ersons of means or of a ,rofessional +ondsman or +onding com,any. ;ailure of the ,erson released on +ail to surrender himself at the a,,ointed time results in forfeiture of the security. *he la- leicon& de
"ourts hae greater discretion to grant or deny +ail in the case of ,ersons under criminal arrest e.g. it is usually refused -hen the accused is charged -ith homicide. =hat is contem,lated +y +ail is to >,rocure the release of a ,erson from legal custody +y undertaking that he?she shall a,,ear at the time and ,lace designated and su+mit him?herself to the 1urisdiction and 1udgment of the court.>@
& (a- leicon +y Aamanth Iyer 'rd edC. @ Black/s (a- Dictionary &!! 4th ed.C
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$ reading of the a+oe de
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HISTORY OF BAIL *he conce,t of +ail can traced +ack to '%% B" -hen Plato tried to create a +ond for the release of Socrates. *he modern +ail system eoled from a series of la-s originating in the middle ages in England.
Evol!"o# "# E#$l%#& *here eisted a conce,t of circuit courts during the medieal times in Britain. )udges used to ,eriodically go on circuit to arious ,arts of the country to decide cases. *he terms Sessions and Fuarter Sessions are thus deried from the interals at -hich such courts -ere held. In the mean-hile the under trials -ere ke,t in ,rison a-aiting their trials. *hese ,risoners -ere ke,t in ery unhygienic and inhumane conditions this -as caused the s,read of a lot of diseases. *his agitated the under trials -ho -ere hence se,arated from the accused. *his led to their release on their securing a surety so that it -as ensured that the ,erson -ould a,,ear on the a,,ointed date for hearing. If he did not a,,ear then his surety -as held lia+le and -as made to face trial. Slo-ly the conce,t of monetary +ail came into eistence and the said under trials -as asked to gie a monetary +ond -hich -as lia+le to get forfeited on nona,,earance.
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In *he Magna "arta in &@&5 the $ Magistrate shall discharge ,risoners from their Im,risonment taking their Aecogni2ance -ith one or more Surety or Sureties in any Sum according to the Magistrate/s discretion unless it shall a,,ear that the Party is committed for such Matter o9enses for -hich +y la- the Prisoner is not +aila+le.>
In &6#% came *he English Bill 0f Aights -hich ,roided
safeguards against 1udges setting +ail too high. It stated that >ecessie +ail hath +een re:uired of ,ersons committed in criminal cases to elude the +ene
C(()#! *(%+!"+)
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In &%!6 the Bail $ct &%!6 came into force. It sets out the current and the +asic legal ,osition of +ail ,reailing in England. It lays out that there is a general right to +ail ece,t as ,roided for under the ;irst Schedule of the $ct. =hile there are di9erent grounds for refusing the right to +ail de,ending on the ty,e of o9ence for all im,rison a+le o9ences the t-o +asic grounds are as set out +y the 0/"allaghan decision. But there is also the additional ground that if the court is satissu+stantial grounds for +elieing> that the defendant if released on +ail -ill commit an o9ence -hile on +ail +ail may +e refuse. nder section 5'C of the Bail $ct &%!6 the court -hich -ithholds +ail is re:uired to gie reasons so that the defendant can consider making an a,,lication. In ,ractice ho-eer the reasons gien +y English courts on a ariety of standard forms are fre:uently short and not e,licitly +ased u,on ,articular facts and factors. Stone/s )ustices/ Manual suggests that magistrates announce any decision to refuse +ail merely +y relating the grounds and statutory reasons in short form.
English administratie la- also re:uires that -here there is an eisting o+ligation to gie reasons for a decision the reasons gien +e clear and ade:uate and deal -ith the su+stantial issues in the case.
*he English courts use tick +oes for recording the grounds and the reasons for not granting +ail. *here is a use of a standard ,attern that -hich lists out the arious reasons for not granting the +ail. *hese forms ary in their ,recise cona+stract> or >stereoty,ed> and therefore inade:uate. *he :uality of the reasons gien directly re3ects the :uality of the decisionmaking ,rocess.
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Evol!"o# "# A.)("+% $ccording to the San ;rancisco e-s and the S; "hronicle the ecessie +ail shall not +e re:uired> +ut it does not ,roide any a+solute right to +ail.
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C(()#! *(%+!"+) nder current la- a defendant has the right to +ail unless there is suGcient reason not to grant it. *he main reasons for refusing +ail according to the Bail $ct &%!6 are that there are su+stantial grounds for +elieing that the defendant &C -ill a+scondJ @C -ill commit further o9ences -hilst on +ailJ or 'C -ill interfere -ith -itnesses. "onditions may +e a,,lied to the grant of +ail such as liing at a ,articular address or rarely ,aying an amount into court or haing someone act as surety. Aelease on +ail is sometimes referred to as ,olice +ail -here the release -as +y the ,olice rather than +y a court. *he alternatie to +eing granted +ail is +eing remanded into custody also called +eing held on remandC.
In $merica eery accused ,erson is entitled to a hearing at -hich eidence releant to his indiidual case is considered to determine the amount of +ail necessary. o ,recise rule can +e laid do-n that -ill determine the amount of +ail re:uired in any ,articular instance. Bail is to +e <ed according to the circumstances of each case. *he matter is generally one for the sound discretion of the trial court. $lthough the determination of the trial court is su+1ect to the reie- in the a,,ellate courts for a+use of discretion ordinarily the a,,ellate courts -ill not interfere if the amount set +y the trial court is reasona+le and not ecessie.
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*he amount of a +ond should of course +e suGcient to assure the attendance of the defendant u,on the court -hen it is re:uired. *he +ond should +e <ed in such amount that -ill eact igilance on the ,art of the sureties to see that the defendant a,,ears in court -hen called.' Both the ;ederal "onstitution and state constitutions contain ,roisions against ecessie +ail. Bail set at an amount higher than reasona+ly calculated to insure that the accused -ill a,,ear to stand trial and su+mit to sentence if conicted is ecessie and falls -ithin the ,roscri,tion of the ;ederal "onstitution if set +y a federal court or of the ,articular state/s constitution if set +y a state court. But no hardandfast rules for determining -hat is reasona+le +ail and -hat is ecessie +ail hae +een laid do-n. *hat the +ail is reasona+le -hich in ie- of the nature of the o9ense the ,enalty attached to the o9ense and the ,ro+a+ility of guilt of defendant seems no more than suGcient to secure attendance of the defendant.
*he amount of +ail in and of itself is not
=here t-o or more cased are ,ending against a defendant the fact that +ail in one case considered +y itself is reasona+le does not ,reent the collectie amount re:uired in the seeral cases from +eing ecessie.
' State "hiers &%# (a &7%# 5So @d '6'.
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*he gist of the ,ro+lem confronting a court in setting the amount of +ail is to ,lace the amount high enough to reasona+ly assure the ,resence of defendant -hen it is re:uired and at the same time to aoid a
*he Bail Aeform $ct of &%66 ,roides for the release of defendant on his ,ersonal recogni2ance or u,on eecution of an unsecured a,,earance +ond in an amount s,eci
&C a+ility of the accused to gie +ail @C nature of o9ense 'C ,enalty for the o9ense charged 4C character and re,utation of the accused
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5C health of the accused 6C character and strength of the eidence !C ,ro+a+ility of the accused a,,earing at trial #C forfeiture of other +onds and %C -hether the accused -as a fugitie from 1ustice -hen arrested.4 *hat the accused is under +ond for a,,earance at trial in other cases should also +e considered. $ ma1or factor in determining the amount of +ail in a current matter is the character and former criminal record of the defendant. It has +een held ho-eer that the criminal actiities and tendencies of a ,erson a,,lying for +ail on a charge of agrancy do not 1ustify the <ing of +ail at an ecessie amount for the ,ur,ose of kee,ing him in 1ail.
In determining the amount of +ail oluntary surrender may +e considered as an indication that the defendant has no intention of a+sconding from 1ustice. 0n the other hand it is also ,ro,er in setting a higher +ail
Een -here +ail is a matter of right the fact that a ,erson has ,reiously forfeited +ail is a factor to +e considered in determining the amount of +ailJ in such a case +ail may +e set in such amount as -ill reasona+ly assure the ,resence of the defendant at court although +ail may not +e refused altogether. In setting the +ail the court may also consider the +ehaior or mis+ehaior of the defendant during ,arole from ,rison on a ,reious criminal coniction. 4 Delaney Sho+e @ ina+ility to gie +ond in the amount set is not suGcient reason for holding the amount ecessieC.
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*he ,ro+a+ility of the esta+lishment of guilt at the trial or the eistence of dou+t as to the guilt of the accused is a ,ro,er consideration in determining the amount of +ail. Hence a court in determining the amount of +ail may consider the character and strength of the eidence +y -hich the crime charged is su,,orted.
$
court
should
gie
some
regard
to
the
,risoner/s
,ecuniary
circumstances since -hat is reasona+le +ail to a man of -ealth may +e e:uialent to a denial of the right to +ail if eacted of a ,oor man charged -ith a like o9ense. $n accused cannot +e denied release from detention +ecause of indigence +ut is constitutionally entitled to +e released on his ,ersonal recogni2ance -here other releant factors make it reasona+le to +eliee that he -ill com,ly -ith the orders of the court.
Ho-eer +ail is not rendered ecessie +y the mere ina+ility of the accused to ,rocure +ail in the amount re:uired. In other -ords the etent of the ,ecuniary a+ility of the accused to furnish +ail in not controlling if it -ere the <ing of any amount no matter ho- small -here the accused had no means of his o-n and no friends -ho -ere a+le or -illing to +ecome sureties for him -ould constitute a case of ecessie +ail and -ould entitle him to got at large on his o-n recogni2ance. It is the incarceration of those indiiduals -ho cannot meet esta+lished money +ail re:uirements
-ithout
meaningful
consideration
of
other
,ossi+le
alternaties -hich infringes on +oth due ,rocess and e:ual ,rotection re:uirements.
*he current $merican ,osition is stated as follo-s in a standard treatise >*here is ,o-er in the court to release the defendant -ithout +ail or on his o-n recognition.>
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T/) L)$%l *o0"!"o# "# I#&"% *he "riminal Procedure "ode &%!' "r.P.". hereinafterC does not de Baila+le o9ence means an o9ence -hich is sho-n as +aila+le in the ;irst Schedule or -hich is made +aila+le +y any other la- for the time +eing enforce and non+aila+le o9ence means any other o9ence>. ;urther ss. 4'6 to 457 set out the ,roisions for the grant of +ail and +onds in criminal cases. *he amount of security that is to +e ,aid +y the accused to secure his release has not +een mentioned in the "r.P.".. *hus it is the discretion of the court to ,ut a monetary ca, on the +ond. nfortunately it has +een seen that courts hae not +een sensitie to the economic ,light of the -eaker sections of society. *he unreasona+le and eor+itant amounts demanded +y the courts as +ail +onds clearly sho- their callous attitude to-ards the ,oor.
$ccording to the !#th re,ort of the (a- "ommission as on $,ril & &%!! of a total ,rison ,o,ulation of &6% as many as &7&7#' roughly 558C -ere
undertrials.
;or
s,eci
1ails
some
other
re,orts
sho-
Secundera+ad "entral )ail #7 ,er cent undertrialsJ Surat!# ,er cent undertrialsJ $ssam *ri,ura and Meghalaya66 ,er cent undertrials.
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0ne of the reasons for this is as already mentioned a+oe is the large scale ,oerty amongst the ma1ority of the ,o,ulation in our country. ;ragmentation of land holdings is a common ,henomenon in rural India. $ family consisting of around # out of &7 mem+ers de,ends on a small ,iece of land for their su+sistence -hich also is a reason for disguised unem,loyment. =hen one of the mem+ers of such a family gets charged -ith an o9ence the only -ay they can secure his release and ,aying the +ail is +y either selling o9 the land or giing it on mortgage. *his -ould further ,ush them more into the 1a-s of ,oerty. *his is the ,recise reason -hy most of the under trials languish in 1ail instead of +eing out on +ail.
Fo(.%! o Al"+%!"o# $ ,erson may +e accused of a Baila+le or a on Baila+le o9ence. In case of a +aila+le o9ence the accused has a right to secure his release +y a,,lying for +ail under S. 4'6&C of "r P " -hile in case of non+aila+le o9ence the accused may +e released +y the court on its discretion after he a,,lied for +ail under S. 4'!&C of "r P ". In case of a +aila+le o9ence if the accused in indigent he may +e released my eecuting a ,ersonal +ond -ithout sureties. *he a,,lication for +ail is made to the court in -hich the accused is tried that de,ends on the o9enceC. Ho-eer S. 4'% gies s,ecial ,o-ers to H" and "ourt of Session to release a ,erson on +ail after im,osing certain conditionsC and so an a,,lication may +e made to H" or "ourt of Session as -ell if the ,erson is under arrest. o eri
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UDICIAL TREND $n oerie- of the follo-ing cases highlight the aderse condition of the ,oor -ith regard to the un1ust +ail system in India. In State of Aa1asthan Balchand 5 the accused -as conicted +y the trial court. =hen he -ent on a,,eal the High "ourt it ac:uitted him. *he State -ent on a,,eal to the Hon/+le Su,reme "ourt under $rt. &'6 of the "onstitution through a s,ecial leae ,etition. *he accused -as directed to surrender +y the court. He then
In Moti Aam and 0rs. State of M.P 6 the accused -ho -as a ,oor mason -as conicted. *he a,e court had ,assed a sketchy order referring it to the "hief )udicial Magistrate to enlarge him on +ail -ithout making any s,eci
5 $IA &%!! S" @44!. 6 $IA &%!# S" &5%4
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In Maneka Oandhi nion of India! )ustice Nrishna Iyer once again s,oke against the unfair system of +ail that -as ,reailing in India. o de
;urther in Hussainara Nhatoon and others . Home SecState of Bihar
#
the "ourt laid do-n the ratio that -hen the man is in 1ail for a ,eriod longer than the sentence he is lia+le for then he should +e released.
! $IA &%!# S" 5!&. # $IA &%!% S" &'67.
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CONCLUSION $ ,erusal of the a+oe cases highlights the strong anti,oor +ias of the Indian criminal 1ustice system. Een though the courts in some cases hae tried to interene and also hae laid do-n certain guidelines to +e follo-ed +ut unfortunately nothing has +een done a+out it. *here is also a strong need felt for a com,lete reie- of the +ail system kee,ing in mind the socioeconomic condition of the ma1ority of our ,o,ulation. =hile granting +ail the court must also look at the socioeconomic ,light of the accused and must also hae a com,assionate attitude to-ards them. $ ,ro,er scrutiny may +e done to determine -hether the accused has his roots in the community -hich -ould deter him from 3eeing from the court. *he court can take into account the follo-ing facts concerning the accused +efore granting him +ail
&C *he nature of the o9ence committed +y the accused. @C *he length of his residence in the community. 'C His em,loyment status history and his
%C $ny other factors indicating the ties of the accused to the community or +arring on the risk of -illful failure to a,,ear.
It is thought that from the arious schemes the goernment o,erates for rural em,loyment loans to farmers etc a ,ortion of the funds -hich it transfers to the ,anchayat for deelo,mental -ork of the same should +e set aside and ke,t to meet the +ail amount for undertrials +elonging to the ,articular ,anchayat ? +lock. *he utili2ation of this fund -ould +e in the hands of the elected leaders of the society -ith the re,resentatie of district collector ? district magistrate +eing a ,art of the system. *his -ould go a long -ay in securing freedom for scores of undertrials -ho -ould then +e a+le to contri+ute to society there+y ,laying an im,ortant role and forming ,art of the national mainstream. Such a scenario -ill hae the e9ect of reducing the +urden of oercro-ding in 1ail.
*he setting u, of se,arate 1ails or at any rate isolating undertrials from conicts
-ould
,reent
hardened
criminals
from eercising
their
deleterious in3uence oer undertrials. Such segregation -ould also change the attitude of 1ail authorities and society at large to-ards under trials.
*he under trials -ho hae +een charged -ith ,etty crimes can further +e ,ut in reformatie homes instead and asked to do community serice till the time they are released on +ail. Elementary education facilities must +e granted to those under trials -ho are uneducated and illiterate. *hus I feel that the +ene
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BIBLIOGRA*HY
I ,erused the follo-ing material for the making of this ,ro1ect &.*he (a- of Pleadings in IndiaQ P.". Mogha ).M. Sriastaa O.". Mogha Eastern Book "om,any (uckno-. @. *et+ook on Pleadings Drafting and "oneyancing +y Dr. $.B. Nafaltiya '. Dr. .. Paran1a,e "ode of "riminal Procedure &st edn. @775 "entral (a- $gencyC. 4. D.D. Basu "ommentary edn.=adh-a ag,ur @77&C
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on
the
"onstitution
of
India
#th