Monish Dpc.docx

DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

(PROJECT)

DRAFTING OF CRIMINAL BAIL APPLICATION IN NON-BAILABLE OFFENCES

SUBMITTED TO:

SUBMITTED BY:

Ms. Shakuntla Sangam

Aishwarya Gupta

Asst. Prof. (Law)

Roll no. 17

RMLNLU,

Section: A

Lucknow

VIth Semester B.A. LL.B. (Hons.)

ACKNOWLEDGMENT

Firstly, I would like to thank my Drafting, Pleading and Conveyance teacher Ms. Shakuntala Sangam for giving me such a golden opportunity to show my skills through this project. The project is a result of an extensive research study, hard work and labour, that is put into to make it worth reading. I wish to acknowledge that in completing this project I had full support of my friends as well as my teacher. This project would not have been completed without the help of my university’s library Dr. Madhu Limaye library and through the university’s internet.

INTRODUCTION

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. The law lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation. Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right. After consideration of factors such as the seriousness of the offence, the chances that the accused will interfere with the investigation by tampering with evidence or threatening witnesses or if the accused is likely to go into hiding or leave the country to escape, the court will decide whether he/she can be allowed to be let out on bail or not. If someone is refused bail, he/she can appeal to a higher court. Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide. What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail

authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.

FACTORS SEEN FOR GRANT OR DENIAL OF BAIL

Purpose of arresting a person is to secure the presence of the accused at the time of enquiry, trial or other proceedings. However, consequences of pre-trial confinement are grave, therefore, the provision of Bail is provided. Objective is to release on bail maximum number of accused persons without seriously endangering the objective of arrest and trial since there is presumption of innocence of an accused till he is found guilty.

It is improper to release on bail a person who-

a. Absconds or jumps bail b. Is likely to destroy evidence c. Tempers with prosecution witness or is likely to commit more offences

Circumstances in which release on bail is mandatory.

1. Arrestee not accused of non-bailable offence a. Ready to execute / furnish bond b. Bail- not excessive c. Detention illegal (contravention of Section 436) (Officer will be guilty of wrongful confinement under section 342 of IPC)

2. Investigation not complete within time prescribed

a. Maximum detention b. 90 days - when punishment from the crime is more than 10 years c. 60 days - all other cases d. Object - investigation must be completed expeditiously and within reasonable time

3. No reasonable ground exists for believing the accused guilty of non-bailable offence

4. Trial before Magistrate not concluded within 60 days

5. No reasonable ground exists for believing the accused guilt after conclusion of trial but before judgment.

 Relief What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail.A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.

CONTENTS OF CRIMINAL BAIL APPLICATION TO BE FILED IN THE CASE OF SECTION 302 IPC CHARGED WITH MURDER UNDER SECTION 439 R/W 482 CRPC

o Urgent Application o Memo of parties o Translated copy of FIR o Charge sheet o Application of bail under section 439 r/w section 482 of crpc o Vakalatnama

MEMO OF PARTIES

IN THE HIGH COURT OF DELHI (Ordinary Civil/Criminal/Appellate Jurisdiction/Extra Ordinary Original Civil Jurisdiction) APPEAL/REVISION/PETITION NO................OF 2014.

(Appeal/Revision/Petition against the judgment and order dated ..................... passed by Mr. Dharmesh Sharma, sessions judge Patiala house sessions court, New Delhi in Suit No. ...................../Case No. etc. .................. titled ....................................................... (cause title of the case as shown in the impugned order) R.K Singh son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011 V. STATE

MEMO OF PARTIES 1. .......................................... 2. ........................................... 3. ........................................... Appellant/Petitioner(s) Vs. 1. ........................................... 2. ........................................... 3. ........................................... Respondent(s)

FIR

On the date of 4th july 2013, at M.g road, near Sarai kale Khan police Station. Persons named A, B and C were going in a car returning from their shops at around 10 pm which are situated in Sarai Kale Khan Market Area. Near ‘noida DND Flyway. Soon a motor cycle overtakes them and stops in front of them. Three persons (alleged to be accused of this case) namely R.K singh, V.k Singh and B.S Singh, who were masked got down and came towards the car. The pointed the gun towards the person A who was sitting on the drivers seat and shot him while the other person shot B on the passengers side. The third assailant waited on the motor cycle and they ran away. The person C called the police and arranged for the ambulance and took A and B to the hospital nearby named “Leelavati hospital” while leaving a constable ramlal (batch no. 1234) at the crime scene. The hospital declared the persons brought dead and the entry has been made at the hospital register at about 1 p.m. Sub inspector R.S Yadav (batch no. 1235) SHO Sarae KAale Khan Police Station. On the basis of SI investigation the F.I.R has been lodged against unknown persons and the matter has been referred for incestigation. Later on, C’s statement about the contacts and incident the police arrested the tree alleged accused. So a bail application is drafted and filed in the high court of judicature in order to seek a bail in the non cognizable offence for the alleged accused.

CHARGESHEET

F I N A L R E S U L T [U/S 173 CR.P.C] IN THE HIGH COURT OF JUDICATURE NEW DELHI 01: Dist. Delhi; Police Station: Sarai Kaale Khan FIR NO. 1125/2014 Dated: 28-1-2014 02: Final Report No. : 2/2014 03: Final Report Date : 26-02-2014 04: Act and Section of Law : Offence U/s 302 IPC 05: Type of Final result : Charge sheet 06: If F.R. Un occurred : Occurred 07: If Charge Sheet Original or Supplementary : Original 08: Name of the I.O. : R.S Yadav SI Of Police, 09: Name of the complainant cc: household, cast:Brahmin : Mr C S/o Anil Kumar Age: 27 yrs R/o c-3, kirlokari, maharani bagh, M.G Road, New Delhi-011 11: Particulars of accused persons charge sheeted :- A1. R.K Singh son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011 A2 P.K Singh, son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011 A3 M .K Singh, son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011 Brief facts of case: On the date of 4th july 2013, A person named a,b and c were going in a car returning from their shops at around 10 pm. Soon a motor cycle overtakes them and stops in front of them.

Three persons (alleged to be accused of this case) who were masked got down and came towards the car. The pointed the gun towards the person A who was sitting on the drivers seat and shot him while the other person shot B on the passengers side. The third assailant waited on the motor cycle and they ran away. The person C called the police and arranged for the ambulance and took A and B to the hospital while leaving a constable at the crime scene. The hospital declared the persons brought dead. On the basis of C’s statement about the contacts and incident the police arrested the tree alleged accused. So a bail application is drafted and filed in the high court of judicature in order to seek a bail in the non cognizable offence for the alleged accused. On the investigation report filed by the Sub inspector charges were framed under section 302 and 201 of IPC read with section 34. Based on the statement of C which is PW 1 of the case the accused were arrested and remanded. Hence, the charge, Signed Sub inspector RS yadav

APPLICATION DRAFT: IN THE COURT OF HON’BLE HIGH COURT BAIL APPLICATION NO. …OF 2014 STATE Vs. R.K Singh son of Y.B. Singh, Permanent Resident of A-33, kirlokari, maharani bagh, M.G Road, New Delhi-011 Application U/s 439 r/w 482 Cr.PC for grant of bail to the accused/applicant in the above noted FIR and appropriate direction may kindly be issued to the IO/SHO/Arresting officer to release the Accused/applicant on bail in the event of his, during the pendency of the present petition; AND It is further prayed that the arrest of the Accused/applicant in the above noted FIR, may kindly be stayed. AND/OR Pass any other appropriate order or direction which this hon’ble court may deem fit and proper in the facts and circumstances of this case.

RESPECTFULLY SHOWETH 1. That the Accused /applicant has no nexus and connection with the above mentioned offence. That the applicant have not caused trespass and theft as is falsely reported 2. That the accused/applicant is victim of false allegation made by his mother. The facts emanating from the record disclose a sordid state affair where apparently law of land has been subverted. The accused/applicant is quite innocent and has not committed any offence. A copy of FIR is attached herewith as ANNEXURE A/1 3. That a brief chronology of the facts, events and circumstances is apt to be highlighted et seriatim as under:3.1 Accused/applicant is Resident of the house, bearing property No. A-33 kirlokri, maharani bagh, New Delhi. 3.2 Accused/applicant is the sole earner of the family. 3.3 since all the three accused are brothers and belonged to same family. There is no one left to look after the children and shops in their absence. 3.4 the assailants were masked and hence there is no clear evidence that the accused are the assailants 4. Where both the husband and the wife were charged of committing murder of their child and the wife applied for bail on the ground that she had another small child at home, that there was no body to look after him or the case, that the case would take a long time to conclude, that the cultivation of the petitioner would suffer, that the proviso to sub-section (1) of section 497, Criminal Procedure Code (old) applied to the case and she was allowed the bail.169

5. Grant of bail to an accused person who is involved in a Criminal Conspiracy for murder, on the ground that there is some discrepancy in the evidence of approvers is improper.2

1 2

Mst. Chokhi v. State 1957 CrLJ 102: AIR 1957 Raj 10 Emperor Vs. Abu Baker, 42 CrLJ 703: AIR 1941 Sind 83

6. In Jeet Ram Vs. State of Himachal Pradesh.3 There was no material that the accused after release on bail would abscond to evade trial or tamper with prosecution evidence bail was allowed. 7. In Rajesh Ranjan Vs. State of Bihar 4Under section 302 IPC statement of eye-witnesses, confession of co-accused found not sufficient to connect the accused with the commission of crime. 8. That nothing is to be recovered from the Accused/applicant and hence the custodial interrogation of the Accused/applicant is not required. The Accused/applicant undertakes not to leave the territorial jurisdiction of this hon’ble court without prior permission. 9. That the Accused/applicant is ready to join the investigation as and when required by the police. 10. That Accused/applicant undertakes not to misuse the concession of bail in any manner and not to tamper with the prosecution evidence. 11. That the Accused/applicant is permanent resident of above stated address and there is no apprehension of his absconding. 12. That Accused/applicant undertakes to abide by all terms and condition to be imposed by this Hon’ble court in the event of grant of bail to the Accused/applicant.

PRAYER

It is, therefore prayed that the applicant may kindly be released/granted anticipatory bail in FIR No. 135 dated 08/04/2013, P.S. Amar colony , District South East,, New Delhi, and police be directed to release the applicant on bail in the event of his arrest. APPLICANT THROUGH (AVIRAL UMRAO) Advocates for the Complainant Office at :: Room No- 163 UG boy’s Hostel, RMLNLU Phone: 9044198302, 7785037115 Lucknow Dated: ____ February , 2014 3 4

2002 3 shim LC 349: 2003 CrLJ 736 (739) (HP) 181 2005 CrLJ 242 (Pat).

VAKALATNAMA

IN THE COURT OF ___________________________________________________ Suit /Appeal No./CWP ____________________________________ JURISDICTION of 2001 In re: ___________________________________________________ Plaintiff /Appellants/ Petitioner/ Complainant VERSUS _________________________________________________Defendant/Respondent/ Accused

KNOW ALL to whom these present shall come that I/We ______________________ ____________________________________________________________________

the

above named _______________________________________ do hereby appoint (herein after called the advocate/s) to be my/our Advocate in the above noted case authorized him :To act, appear and plead in the above-noted case in this Court or in any other Court in which the same may be tried or heard and also in the appellate Court including High Court subject to payment of fees separately for each Court by me/ us. To sign, file verify and present pleadings, appeals cross objections or petitions for execution review, revision, withdrawal, compromise or other petitions or affidavits or other documents as may be deemed necessary or proper for the prosecution of the said case in all its stages. To file and take back documents to admit and/or deny the documents of opposite party. To withdraw or compromise the said case or submit to arbitration any differences or disputes that may arise touching or in any manner relating to the said case. To take execution proceedings.

The deposit, draw and receive money, cheques, cash and grant receipts thereof and to do all other acts and things which may be necessary to be done for the progress and in the course of the prosecution of the said case. To appoint and instruct any other Legal Practio ner, authorizing him to exercise the power and authority hereby conferred upon the Advocate whenever he may think it to do so and to sign the Power of Attorney on our behalf. And I/We the undersigned do hereby agree to ratify and confirm all acts done by the Advocate or his substitute in the matter as my/our own acts, as if done by me/us to all intents and purposes. And I/We undertake that I / we or my /our duly authorized agent would appear in the Court on all hearings and will inform the Advocates for appearance when the case is called. And I /we undersigned do hereby agree not to hold the advocate or his substitute responsible for the result of the said case. The adjournment costs whenever ordered by the Court shall be of the Advocate which he shall receive and retain himself. And I /we the undersigned do hereby agree that in the event of the whole or part of the fee agreed by me/us to be paid to the Advocate remaining unpaid he shall be entitled to withdraw from the prosecution of the said case until the same is paid up. The fee settled is only for the above case and above Court. I/We hereby agree that once the fee is paid. I /we will not be entitled for the refund of the same in any case whatsoever. If the case lasts for more than three years, the advocate shall be entitled for additional fee equivalent to half of the agreed fee for every addition three years or part thereof.

IN WITNESS WHEREOF I/We do hereunto set my /our hand to these presents the contents of which have been understood by me/us on this ____________ day of ____________2002. Accepted subject to the terms of fees.

Advocate

Client

Client

BIBLIOGRAPHY

 Drafting and Conveyancing, S.P.Aggarwal 2005, Latest Reprint 2011  Jhabvala H Noshirvan. drafting, pleading and conveyances and professional ethics. C. Jamnadas, 2008  Kafaltiya A.B. Textbook on Pleadings, Drafting & Conveyancing. Universal publishers, 2010  Kothari M ganpatlal. Drafting, conveyancing and pleading. N. M. Tripathi, 1977  http://www.lawyersclubindia.com/articles/Discretion-in-granting-Bail-in-NonBailable-Offences-5262.asp accessed on 11/03/2016.  https://www.advocatekhoj.com/library/lawareas/bail/bailable.php?Title=Bail&STitle= Bailable/%20non%20%96%20bailable%20offences accessed on 11/03.2016.  http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%205.pdf accessed on 10/03/2016.