Bail Application (Draft)

1. Core Meaning and Purpose

In simple terms, a bail application is a formal plea filed in court by an arrested or jailed person, requesting their temporary release while the criminal case against them is ongoing. The core idea is to balance an individual's fundamental right to personal liberty with the needs of the justice system.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is the new criminal procedure code that governs how arrests, investigations, trials, and bail are to be conducted in India, replacing the old Code of Criminal Procedure (CrPC). Therefore, a "Bail Application under BNSS" is one that is filed according to the rules and sections of this new law.

2. The Legal Foundation: Key Sections of the BNSS

The BNSS categorizes offences and corresponding bail provisions primarily into two types:

• Bail in Bailable Offences (Section 480 BNSS):
  Meaning: If the alleged crime is classified as "bailable," the accused has a legal right to be released on bail.
  Process: This can often be granted by the police officer in charge itself. It is not a matter of judicial discretion but of entitlement.

• Bail in Non-Bailable Offences (Section 478 BNSS):
  Meaning: For more serious crimes, which are "non-bailable," there is no right to bail. Granting bail is a matter of the court's discretion.
  Jurisdiction: This specific section empowers the Sessions Court and the High Court to grant bail for such serious offences. This is the most commonly invoked section for seeking bail in serious cases.

3. Basic Structure of a Bail Application

A well-drafted bail application generally follows this structure:

• Caption & Introduction: Identifies the court, the case details, the parties (State vs. Accused), and the specific legal provision (e.g., u/S 478 BNSS) under which the application is filed.

• Factual Background: Briefly states the date of arrest, the FIR number, and the alleged offences.

• Grounds for Bail (The "Sheweth" Part): This is the heart of the application. Here, the accused presents legal arguments justifying their release.

• The Prayer Clause: A clear and direct request to the court, asking for the accused to be released on bail, often with proposed terms.

• Verification: A mandatory sworn affidavit from the accused stating that the facts presented are true to their knowledge. This lends credibility and legal weight to the application.

4. Essential Doctrines and Tests for Granting Bail

Courts do not grant bail in non-bailable cases arbitrarily. Their decision is guided by well-established legal principles:

• Presumption of Innocence: The foundational principle that every person is presumed innocent until proven guilty in a fair trial.

• "Bail is the Rule, Jail is the Exception": The Supreme Court has repeatedly emphasized that pre-trial detention should not be punitive. Denial of bail should be an exception, not the norm.

• The "Twin Tests" for Granting Bail:
  Prima Facie Case: The court briefly examines the evidence to see if there are reasonable grounds to believe the accused has committed the offence. A weak or frivolous case favours the grant of bail.
  Flight Risk and Tampering: The court must be satisfied that the accused:
  Will not abscond or flee from justice.
  Will not tamper with evidence or intimidate witnesses.

5. Legally Relevant Grounds for Seeking Bail

To persuade the court, a bail application must contain strong, factual grounds. Common and legally sound arguments include:

• Lack of a Prima Facie Case: Arguing that the evidence is circumstantial, weak, or does not directly connect the accused to the crime.

• False Implication: Claiming and providing a reason (e.g., personal enmity, business rivalry) for being falsely named in the case.

• Delay in Investigation: Highlighting that the investigation is complete or that the police have failed to file the chargesheet within a reasonable time, making continued detention unjust.

• Medical Grounds: Citing serious health issues of the accused or their family that require their release.

• Co-operation and No Flight Risk: Assuring the court of the accused's willingness to cooperate with the investigation and their deep-rootedness in the community (through family, job, property) which makes them unlikely to abscond.

• Nature of the Offence: Highlighting that the offence is not of the most severe category that would warrant outright denial of bail.

6. Important Considerations under BNSS

The BNSS has introduced specific conditions to make the process more victim-centric. For instance, before granting bail in serious offences like those punishable with life imprisonment or death, or crimes against women and children, the court is now often required to hear the victim or the victim's relatives. This ensures their concerns are taken into account.

Conclusion:

A bail application under the BNSS is a critical legal document that serves as the primary tool to secure the liberty of an undertrial accused. Its success hinges on a clear understanding of the new legal provisions, a persuasive presentation of facts that meet the "twin tests," and a structure that complies with procedural requirements. It represents the crucial balance in criminal law between the state's power to prosecute and the individual's right to freedom.