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.)
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Contents Acknowledgments…………………………………………………………………………… 2 Objectives ……………………………….……………………………………………….…. 4 Introduction …………………………………………………………………………….…... 5 Bail under Code of Criminal Procedure, 1973………………………………………………6 Dispute concerning right of use of land or water……………………………………………8 Voluntarily causing hurt by dangerous weapons or means …............................................... 9 Bail application under Section 437 of Cr.P.C. ……………………………………………..10 Bibliography……………………………………………………………………………..... 14
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Objectives
To Study about the concept of Bail under the Code of Criminal Procedure, 1973.
To Draft a bail application of accuse under the charge of section 147 of Cr.P.C.
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Introduction 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 person’s 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.
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Bail under Code of Criminal Procedure, 1973 There is no definition of bail in the Code. The word ‘bail’ i s 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 pe rson 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 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-
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, Black’s Law Dictionary 177 (4th Ed. 1968). 5 Dr. A. B. Kafaltiya, Drating, Pleading and Conveyancing 185 (). 1
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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 t he following circumstances71. 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.
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Hajialisher v. State of Rajasthan, 1976 Cri LJ 1658 (Raj). 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 cuttin g, 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 Case1. 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 wa y of transport. 7. After passing of the order, Mr. Ajay Shukla got very angry and on the same day he went to Mr. Mahendra Lal’s 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.
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In the Court of Mr. Omprakash Naidu, District and Sessions judge, Bilaspur (C.G.) In the Matter of: 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.
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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 t he Court. 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
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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.
Place- Uslapur, Bilaspur (C.G.)
Ajay Shukla
Date -.28th January 2017
Applicant Kushal Pandey
Through Counsel
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Biblography
Dr. A. B. Kafaltiya, Pleadings, Drating, and Conveyancing, Universal Law Publications (2014 Ed.).
Dr. Rega Surya Rao, Lectures on Criminal Procedure Code, Asia Law House (2nd Ed., 2015).
Henry Campbell Black, Black’s Law Dictionary , Thomson Reuters (4th Ed. 1968).
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