Filing for a Bail in India: A Look at all the Nitty-Gritty of a Bail Application Draft

Introduction

Bail is a right in bailable cases but merely a privilege in non-bailable ones. So, what’s the first thing you do if your right to liberty is at risk or you’ve been arrested? You apply for bail! 

This is why securing bail is one of the most important responsibilities of a criminal lawyer. 

What is Bail?

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Criminal law doesn’t define “bail,” however, according to legal dictionaries, it is a security that ensures the accused appears in court while they enjoy their freedom (remain out of jail)during trial or investigation. Bail can be with or without sureties, and the law around it keeps evolving due to the unique nature of each case. Staying updated with the latest legal developments is crucial!

Now, simply imagine,  a person is worried about getting arrested. The individual can apply for an “anticipatory bail”, meaning that a person anticipating or foreseeing an arrest can secure himself/herself by securing an anticipatory bail from the Court of law. 

What if the arrest takes place in another district or state? There is a solution. To stay protected, the person can file for transit bail in his/her home jurisdiction.

Let us now glance over the kinds of offences that are present in law. 

Bailable & Non-Bailable Offences

The law divides offences into bailable and non-bailable categories. Section 2(a) of the Code of Criminal Procedure (CrPC), 1973 and Section 2(b) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, defines the same. 

A bailable offence is one which is listed as bailable in Schedule I or under any other law. A non-bailable offence is simply any other offence that is not declared as bailable. If an offence falls under a special law, its bail-ability is usually mentioned in Schedule II, though some special laws may specify it directly.

In Kamlapati Trivedi v. State of West Bengal (1979 AIR 777), the Supreme Court clarified that in bailable offences, granting bail is a right, whereas in non-bailable offences, it is at the discretion of the court. However, such discretion must be exercised judiciously, considering factors like the severity of the offence, the likelihood of tampering with evidence, and the accused’s past conduct, emphasizing that bail should not be denied arbitrarily or used as a form of pretrial punishment, thereby reinforcing the principle that personal liberty should not be curtailed unnecessarily under Sections 436 and 437 of the Cr.P.C. (Sections 478 and 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) respectively).

Now, whether an offence is bailable or non-bailable, what happens when the court summons a person under each? (usually after the chargesheet is filed)? The person should apply for bail immediately, even if they are not in custody. 

Here’s a tip: To make the process smooth, always come prepared with a surety, ID documents, and a fixed deposit receipt. Got all that? Great! Let’s move on.

Key Components of a Bail Application

When applying for bail, there are a few key things you need to include to make a strong case. Let’s break it down:

1. Highlight the accused’s background

What are their educational qualifications or work experience? The goal here is to paint a positive picture. Show that they’re a responsible, contributing member of society, not someone who would disappear or cause trouble. 

Also, if the accused is a first-time offender, harp as much as possible on this point, i.e., Your Lord/Lady-ship – this is the accused’s first offence, and s/he isn’t a habitual offender. This is an isolated incident that has taken place. Hence, requesting leniency from the Court, given the enormous contributions of the accused and also as a law-abiding member of society for the past so many decades. 

2. State the prosecution’s case, but carefully!

Instead of treating the FIR or charge sheet as admitted facts, a good approach is to phrase it like this: “As per the case of the prosecution against the accused…” This way, you’re just summarizing their claims, not agreeing with them.

3. Attach the necessary documents

You’ll need to annex the FIR and charge sheet with the application. However, you don’t have to attach all documents and witness statements from the charge sheet; you only have to rely on the ones you specifically want to rely on.

4. Mention the legal grounds for bail

What are the key legal reasons you’re arguing for bail? These must be clearly stated in the application. Some grounds can include the lack of prima facie evidence, minimal nature and gravity of the charge, low likelihood of absconding, good character and antecedents, no possibility of reoffending, no risk of tampering with evidence or witnesses, undue delay in trial violating the right to a speedy trial, and medical conditions requiring specialized treatment unavailable in custody.

5. Give details of the arrest and custody 

If the accused has already been arrested, specify when and where. Example: “Five days in police custody at JB Road Police Station and ninety-fice days in Presidency Jail, Kolkata—a hundred days total.”

6. Assure the court of bail conditions

The court needs to know that the accused will not misuse bail. The lawyer should confirm that the accused will not tamper with evidence, influence witnesses, or abscond.

For instance, in Capt. Anila Bhatia v. State of Haryana (2018), Capt. Anila Bhatia, a pilot with Air India, was granted anticipatory bail with the condition to surrender her passport. She challenged this condition, arguing that her profession required international travel. The court acknowledged the need to balance personal liberty with societal interests and emphasized that such conditions should not be imposed mechanically in every case. The court suggested that if necessary, the accused could be directed to execute a bond when needing to travel abroad to ensure their appearance before the investigating officer or court as required. 

Similarly, in Saurabh Shivhare and Another v. State of U.P. (2022), the court reiterated that while imposing conditions for bail, especially concerning the surrender of passports, extreme care must be taken. The court modified the bail condition, allowing the accused to retain his passport, provided he moved an application supported by an affidavit and proof of the necessity to travel abroad.

7. Mention previous bail applications (if any)

If bail has been applied for before (in the same case), state where and what the outcome was. Also, attach certified copies of any previous orders.

8. Be completely honest 

Never hide or suppress facts. Take clear instructions from the client to ensure accuracy. If the court later finds out that key details were left out or false statements were made, bail could be rejected or even revoked!

The key takeaway? Be clear, be honest, and present a strong case.

Bail Bond

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A bail bond is a financial guarantee that the accused will appear in court or before the police. It is a way to ensure that they don’t just disappear!

To secure bail, the accused usually needs to submit a Fixed Deposit receipt for the amount set by the court (or by the police in bailable offences). This acts as a disincentive. If they fail to appear, they risk losing the money.

Need the exact format? Check it out here!

Sureties

Sureties are people who vouch for the accused, basically acting as guarantors to ensure they show up in court. It’s like saying, “I trust this person, and I’m willing to take responsibility for their appearance.” Just like the accused, sureties also have to execute a bond for the amount set by the court. Want to see how it’s done? Check out the format here!

What if your application gets rejected?

We all know that granting bail is the rule, and rejecting it is the exception. However, courts still have to consider certain factors before making a decision. There’s no rigid formula, but some key things judges look at include:

1. The seriousness of charges: The more serious the crime, the tougher it is to get bail.

An interesting case on this aspect is Sanjay Chandra v. CBI (2012) 1 SCC 40, where the Supreme Court held that “bail is the rule and jail is the exception.” The Court emphasised that pre-trial detention should not be punitive and that the mere seriousness of an offence cannot be the sole ground for denying bail. The Court observed that since the accused were not at flight risk and there was no likelihood of evidence tampering, continued detention was unjustified. This judgment reinforced the principle that bail decisions must balance individual liberty and fair trial considerations under Article 21 of the Constitution.

2. Tampering with evidence or witnesses: If the accused might interfere with the case, bail can be denied.
3. Health, age, or gender: Sometimes, these factors work in favour of the accused.
4. Circumstances of the case: How severe or complex is the situation?
5. Strength of evidence: Weak evidence? Better chances of bail. Strong evidence? Not so much.
6. Public interest: If releasing the accused could harm society, the court may refuse bail.

What if the Bail is Rejected? Don’t worry. A rejected bail application doesn’t mean it’s the end of the road! The next step depends on the legal strategy you choose.

1. Reapplying to the same court: If circumstances have changed, you may be able to file another bail application in the same court. But be careful—too many repeated applications can backfire in a lethal way, later in time.
2. Going to a higher court: If the lower court made a mistake or if your client is no longer needed for investigation, you can apply to a superior court. However, please keep in mind—some local courts don’t like when cases are escalated too soon, and it could affect the trial.
3. Using concurrent jurisdiction: For anticipatory bail, both the Sessions Court and High Court have jurisdiction under Section 438 Cr.P.C and Section 484 BNSS. Even if one court rejects the application, the person can still apply to the other!
4. Applying for regular bail: If anticipatory bail is denied, you can still go for regular bail under Section 437 Cr.P.C and Section 482 BNSS. There’s no rule stopping you from trying again.

There’s so Much More You Can Learn

You’ve barely scratched the surface. There are so many other criminal draftings that you need to learn and master to excel as a lawyer. 

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Check out ‘Lawctopus’ Online Course on ‘Criminal Proceedings & Drafting: Complaints, FIRs, Bails, Applications, Appeals, and More’ You will get:

• Expert-reviewed, in-depth reading materials on criminal law.
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• Drafting exercise: Application for Maintenance under Section 125, CrPC.
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