Application of bail under Section 436 of Cr.P.

A PROJECT OF
DRAFTING, PLEADING AND CONVEYANCE ON

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

SUBMITTED TO:
MR. PARVESH RAJPUT

SUBMITTED BY:
ARUNIMA DANDWATE

SEMESTER VIII, SECTION A

ROLL NO. 35

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

 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 for bail under
Section 436 of Cr.P.C.”

At this juncture, I would like to express our deepest gratitude to Mr. Parvesh Rajput, Faculty of
Drafting, Pleading and conveyance at the Hidayatullah National Law University for her 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.

ARUNIMA DANDWATE

Semester VIII, Section A, 35

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

TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 4

OBJECTIVES ..................................................................................................................................... 6

RESEARCH METHODOLOGY ............................................................................................................. 6

LIST OF CASES ................................................................................................................................. 7

FACTS OF THE CASE ........................................................................................................................ 10

GENERAL PROVISIONS ON BAIL ..................................................................................................... 11

SCOPE AND APPLICATION .............................................................................................................. 12

POWER TO REFUSE BAIL ................................................................................................................ 14

CANCELLATION OF BAIL, GRANTED UNDER THIS SECTION ............................................................ 14

SECTION 436-A: MAXIMUM PERIOD FOR WHICH AN UNDER-TRIAL PRISONER CAN BE DETAINED: 16

CONCLUSION.................................................................................................................................. 21

REFERENCES .................................................................................................................................. 22

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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 Sec. 436.

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 1 .

(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.

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

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
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

The main of this research work is to understand the meaning of bail under Indian Law. It
includes studying the procedural provisions regarding bail given under Criminal Procedure Code,
1973. It includes studying the various facets of refusal and cancellation of bail.

One of the important aims is to understand the application filed before 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 has 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

LIST OF CASES

 Babu Singh v. State of U. P. 1978 CrLJ 651.

 Bakshi Sardari Lal v.. Superintendent Tihar Central Jail, Delhi 1968 Cr. LR 675 at 680
(Del.).
 Dharmu Naik v. Rabindranath Acharya 1978 CrLJ 864
 Hari Kishan Das v. Union Territory of Chandigarh, 1983 Cri App. R.(SC) 28.
 Hidayat Husain Khan (Dr.) v. State of U.P., 1992 Cr.L.J. 3534 (All).
 Hussainara Khatoon v. State of Bihar, 1979 CrLJ 1036.
 Inder Pal Singh v.. State, 1988 A. Cr.R.722
 K.K. Rao v. State 1982 Mad LJ (Cr). 330.
 K.P. Vasu v.. State, AIR 1975 Ker. 15.
 K.P. Vasu v.. State, AIR 1975 Ker. 15.
 Kali Dass v. SHO, Police Station Reasi, 1979 CrLJ 345 (J&K).
 Kalyan v. State of U.P. 1990 Cr LJ 1658 (ALL).
 Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864.
 Mir Hashamali (1917)20 Bom. LR 121.
 Nagendra Nath Chakravarti, (1923) 51 Cal 402.
 Nathurasu v. State, 1998 Cri LJ 1762 (Mad).
 Niranjan Singh v. Prabhakar (1980)2 SCC 559.
 Praghunandan Pershad (1904)32 Cal 80, 83.
 Pusai v. State (NCT) of Delhi, AIR 2004 SC 1184.
 Rajendra Prasad v. State of U.P., (1989) 26 ACC 57 (All).
 Rati Pal Bhanji Mithani v. Asst.Collector of Customs, AIR 1967 SC 1639: 1967 CrLJ
1576.
 Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939

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

 Ratilal Bhanji Mithani v.. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939
 Sohan Singh Social Worker etc. v.. Mr. S.S. Sohal Adl. CJM, Amritsar, 1983 Cr.LT 467
at 489 (P&H)
 State of Punjab v. Jagjit Singh, AIR 1962 SC 253.
 State of Rajasthan v. Baichand, 1978 CrLJ 195 (SC).
 Varkey Paily Madthikudiyil, AIR 1967 Ker. 189.
 Vijendra v.. State of Rajasthan, 1988 R.Cr.C. 431.

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

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

FACTS OF THE CASE

The petitioner is a resident of Behrampur He is a paid lorry driver under Sri Shatam of
Behrampur. On 4-5-1997 at 4.00 p.m. while the petitioner was driving his lorry from Behrampur
to Jalrampur, an accident occurred near NSTL at Visakhapatnam. When XY suddenly crossed
the road without regard to the traffic, the petitioner's lorry dashed against XY despite the best
efforts of the petitioner to avoid the accident. It resulted in the death of XY. Though the
petitioner 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 petitioner on the evening of 4-5-1997.

The Honorable Court passed an order, remanding the petitioner for fourteen days when he was
produced before the Court on 5-5-1997.

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

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

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

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
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.

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.

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

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
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.

14
State of Rajasthan v. Baichand, 1978 CrLJ 195 (SC).
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

POWER TO REFUSE BAIL

Sub Section (2) of section 436 empowers the Court to refuse bail to an accused person even if the
offence is bailable, where the person granted bail fails to comply with the conditions of the bail
bond. Such refusal will not affect the powers of the Court to forfeit the bond and recover penalty
from the surety as laid down by section 446.

Even in bailable offence the Court has power to refuse to release a person on bail. The person
committed to custody under the order of the High Court cannot ask for his release on bail under
this section, but the High Court may by subsequent order admit him to bail again. 20 An order
granting or refusing bail is interlocutory. Order refusing bail is not a final order. Bail may be
refused at one stage but may be granted at a later stage in the same proceedings. It can be even
rescinded or modified or cancelled at any stage. It does not terminate the proceedings or decides
a point for decision in the case and therefore is not a final order.21

CANCELLATION OF BAIL, GRANTED UNDER THIS SECTION

Section 436 (2) of the Cr. P.C. lays down that where a person had 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 subsequent occasion in the same case he appears before the Court or
is brought in custody. Therefore, it cannot be said that orders passed by the Judicial Magistrate,
for further remand to custody is in any away without jurisdiction. In such circumstances, it
cannot be held that the custody of the accused is illegal.22

The Supreme Court23 has recognized the power to cancel the bail granted under section 436 in
exercise of the inherent powers of the High Court. The Supreme Court has observed that the
Code makes no express provision for the cancellation of a bail granted under Section 436.

20
Rati Pal Bhanji Mithani v. Asst.Collector of Customs, AIR 1967 SC 1639: 1967 CrLJ 1576.
21
K.P. Vasu v.. State, AIR 1975 Ker. 15.
22
Sohan Singh Social Worker etc. Vs. Mr. S.S. Sohal Adl. CJM, Amritsar, 1983 Cr.LT 467 at 489 (P&H)
23
Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939

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

Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of
a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is
attempting to abscond, the High Court has the power to cause him to be arrested and to commit
him to custody for such period as it thinks fit. This jurisdiction springs from the overriding
inherent powers of the High Court and can be invoked in exceptional cases only when the High
Court is satisfied that the ends of justice will be defeated unless the accused is committed to
custody.

This inherent power of the High Court exists and is preserved by Section 482 of the Code. The
person committed to custody under sub section (2) of section 439 confers upon the High Court or
the Court of Session power to cancel bail in regard to cases of persons accused of any offences
where such persons were admitted to bail under this chapter,24 though ordinarily a Magistrate has
no power under the Code to cancel the bail of the accused persons who are on bail in bailable
offences.25

When an accused has been released under section 436 and later a non bailable offence is added,
even then the bail granted cannot be cancelled. Bail can be cancelled only either under section
439 (2) or Section 437 (5).26

Once bail is granted under Section 436 and a charge-sheet for a non bailable offence also is filed,
bail cannot be cancelled unless there is misuse of the liberty granted.27
When bail has been granted in a case instituted by the police, on a complaint case being filed in
regard to certain other offences alleged to have been committed in the course of the same
transaction, the accused has to apply and get bail in regard to the later also.28

But in case an order has been made for releasing a person on bail and it is later found that such
order is either based on some misapprehension or being otherwise infirm, is likely to prejudice
the interest of administration of justice, then this provision of law seems to amply empower the
Courts mentioned therein to make a suitable order canceling the order of release on bail so as to
protect and safeguard the cause of justice. This provision necessarily implies jurisdiction in the

24
Id.
25
Janardhan Yadav Vs. State of Bihar, 1978 BLJ 42: 1978 Pat. LJR 361.
26
Vijendra Vs. State of Rajasthan, 1988 R.Cr.C. 431.
27
Inder Pal Singh Vs. State, 1988 A. Cr.R.722
28
Kalyan Vs. State of U.P. 1990 Cr LJ 1658 (ALL).

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

Court concerned to cancel an order even before the person in question has been actually released,
and it is not intended to prohibit the court from canceling the order of release on bail before it is
executed.29

SECTION 436-A: MAXIMUM PERIOD FOR WHICH AN UNDER-TRIAL PRISONER CAN

BE DETAINED:

Where a person has, during the period of investigation, inquiry or trial under this Code of an
offence under any law (not being an offence for which the punishment of death has been
specified as one of the punishments under that law) undergone detention for a period extending
up to one-half of the maximum period of imprisonment specified for that offence under that law,
he shall be released by the Court on his personal bond with or without sureties;

Provided that the court may, after hearing the Public Prosecutor and for reasons to be recorded
by it in writing, order the continued detention of such person for a period longer that one half of
said period or release him on bail instead of the personal bond with or without sureties.

Provided further that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the minimum period of punishment.

Provided for the said offence under that law.

“Explanation – In computing the period of detention under this section for grant of bail the
period of detention passed due to delay in proceedings caused by the accused side be excluded.

New section 436A inserted by the Cr.P.C. (Amendment) Act 2005 (25 of 2005) enforces w.e.f.
23.6.2006 vide Notification No. S.). 923 (E) dated 21.6.2006. There had been instances, where
under-trial prisoners were detained in jail for periods beyond the maximum period of
imprisonment provided for the alleged offence.

29
Bakshi Sardari Lal Vs. Superintendent Tihar Central Jail, Delhi 1968 Cr. LR 675 at 680 (Del.).

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

The new Section 436A inserted in the Code by Cr.P.C. (Amendment) Act, 2005 (25 of 2005)
provides that where an under-trial prisoner other than the 125 one accused of an offence for
which death has been prescribed as one of the punishments, has been under detention for a
period extending to one-half of the maximum period of imprisonment provided for the alleged
offence, he shall be released on his personal bond, with or without sureties.

It is also proposed to provide that in no case will an under trial prisoner be detained beyond the
maximum period of imprisonment for which he can be convicted for the alleged offence. The
Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period longer than one-half of the said period
or release him on bail instead of the personal bond with or without sureties.

No such person shall in any case be detained during the period of investigation, inquiry or bail
for more than the maximum period of imprisonment provided for the said offence under that law.

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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

In the Court of Judicial First Class Magistrate, Gorakadhanda, at Jalrampur.,

Cr.M.P. No................. of 1997

in

Crime No............... of 1997

(Of the Police Station Behrampur).

Between:

Faizal Khan son of Syed Ahmad Khan, aged about 50 years, Occupation Business, resident
of 8-2-840, Chauri Sadak, Behrampur,
Gorakadhanda................................................................................................ Petitioner/Accused

and

The State of Andhra Pradesh, represented by Station House

Officer, Behrampur, Police Station..................................................... Respondent/Respondent

BAIL PETITION FOR THE OFFENCE UNDER 304-A., I.P.C. May it please your honour.

1. That the petitioner is a resident of Chauri Sadak. He is a paid lorry driver under Sri Shatam
and of Behrampur. On 4-5-1997 at 4.00 p.m. while the petitioner was driving his lorry from
Behrampur to Jalrampur, an accident occurred near NSTL at Visakhapatnam. When XY
suddenly crossed the road without regard to the traffic, the petitioner's lorry dashed against XY
despite the best efforts of the petitioner to avoid the accident. It resulted in the death of XY.
Though the petitioner was not at fault, he informed police about the accident.

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

2. That the Police registered a case under Section 304-A IPC and arrested the petitioner on the
evening of 4-5-1997. This Honorable Court was pleased to remand the petitioner for fourteen
days when he was produced before the Court on 5-5-1997.

3. That the petitioner is an innocent person. He is a poor man, with driving as his only means of
livelihood and has to maintain himself, his wife and two children at present. The petitioner's wife
is carrying now. The petitioner has a fixed place of abode at Behrampur. There is no intention or
scope for the petitioner to escape from the jurisdiction of the Court if the petitioner is released on
bail. The offence alleged against the petitioner is a bailable offence.

4. That the applicant is willing to furnish surety and bail bonds to the satisfaction of this learned
court in case he is ordered to be released 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. It is further submitted that the applicant is not at all required for the investigations.
However, if the applicant is required for investigation, the applicant/accused undertakes to be
present as and when required in accordance with the law.

5. That neither any recovery is to be effected from the applicant nor the applicant is in a position
to temper with the prosecution evidence. The applicant will associate with the investigation
whenever required to do so.

6. The petitioner also submits that he did not file any bail application in any other Court.

It is, therefore, most respectfully prayed that:-

(a) That the applicant may be ordered to be released on bail and this application for bail may
kindly be allowed;

(b) That till the decision of this application interim bail may be granted to the applicant;

(c) That the directions may be issued to the police to get the applicant/accused medically
examined at the immediately;

(d) Such other orders be also passed in favour of the applicant as deemed fit and proper in the
facts and circumstances of the case and in the interest of justice.

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

Jalrampur.

Dt.: 25-5-'97 Counsel for petitioner

AFFIDAVIT

In the Court of Judicial First Class Magistrate, Gorakadhanda, at Jalrampur.

Faizal Khan son of Syed Ahmad Khan, aged about 50 years, Occupation Business, resident of 8-
2-840, Chauri Sadak, Gorakadhanda................................................................. Petitioner/Accused

and

The State of Andhra Pradesh, represented by Station House

Officer, Chauri Sadak, Police Station........................................................ Respondent/Respondent

Affidavit in support of the application under Section 436 of CrPC

I, Faizal Khan, 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 paras 1 to 6 are true and correct to the best of my knowledge.
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 Chauri Sadak on 15/02/17.

Faizal Khan

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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