A

Project Report on

Bail Petition under Section 439 of Code of Criminal

Procedure, 1973

Submitted By: Ashirwad Chanakya

Roll no: 42

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.

Ashirwad Chanakya

Roll No. – 42

Semester- VIII

(B.A.L.L.B. Hons.)

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 Contents
Acknowledgments…………………………………………………………………………… 2

Objectives ……………………………….……………………………………………….…. 4

Introduction …………………………………………………………………………….…... 5

1. Chapter-1=> Bail under Code of Criminal Procedure, 1973 …......………………... 6

2. Chapter-2=> Bail Petition under Section 439 of Cr.P.C. ………………....…....…... 10

Bibliography…………………………………………………………………………….…... 13

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 Objectives

 To Study about the concept of Bail under the Code of Criminal Procedure, 1973.

 To Draft a Bail Petition under Section 439 of Cr.P.C. on Fictional Situations.

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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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 Chapter-1: Bail under Code of Criminal Procedure, 1973

There is no definition of bail in the Code. The word ‘bail’ is 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 person 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-

1. Nature and seriousness of the offence.

1
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 ().

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 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 the following circumstances7-

1. 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.

Chapter-2: Bail Petition under Section 439 of Cr.P.C

6
Hajialisher v. State of Rajasthan, 1976 Cri LJ 1658 (Raj).
7
Dr. A. B. Kafaltiya, , Pleadings, Drating and Conveyancing 185 (2014 Ed.).

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Facts of the Case-

1. The accused, Deepak Gupta, married to one Savita Tiwari, on 15 th Jan. 2016 by
following all the required Hindu ceremonies and Ritual on Bilaspur, C.G.
2. Savita belonged to a middle class family, whereas, Deepak, was from a well
established family, and worked at CSEB Bilaspur at the time of marriage.
3. Because of Deepak belonging to a well established family, their marriage function
was very lavish and expensive, however Savita and her parents did not liked such
lavish affair but kept quite thinking about their future ahead.
4. The Gupta’s were asking Savita’s parents very large dowry amount, even though her
mother sent her with all her gold, and all such gifts which they could afford, but still
the Gupta’s demanded more expensive gifts from them stating that they want
something worth their standard. They stated that as Savita’s life will be settled after
marrying Deepak, so her parents should also provide some equal consideration from
their side.
5. Because of their continuous erratic demands and also warning of cancelling the
marriage, Savita’s parents were forced to borrow money from their relatives, and give
it to them.
6. After this tussle for Dowry, the marriage between Deepak and Savita finally
happened, but Savita was very angry about the greedy nature of her in-laws, but she
quiet so as not make things bad for her parents.
7. After the marriage, she moved to Deepak’s house in Bilaspur. There also she was
continuously taunted and abused for her dark complexion by her in-laws. Even
Deepak supported his parents and he also abused and made fun of her dark
complexion.
8. Her in-laws again started demanding her for money, stating that as she is not fit for
their family, so she should at least compensate them with money. Because of their bad
behavior towards Savita, there used to be daily quarrels between her and her in-laws.
9. Deepak was a habitual alcoholic, he almost drank every night and after drinking he
fought with Savita that she is unworthy of him and his family, even though Savita was
trying her level best to do the entire house work and listen to their demands. On
several occasions he even beat her after drinking and asked her to bring money from
her parents.

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10. Because of their regular quarrels, Savita’s parents came to her in-law several times to
talk out things with them and solve the matter, but the Gupta’s never listened to them
and kept on demanding money from them, or to take back their daughter. Because of
this, Savita’s Father had to again borrow money from his relatives.
11. On the night of 22nd January 2017, Savita’s in-laws had gone to their relatives, and
there were only her and Deepak in the house that night.
12. Deepak brought some of his friends over and they were all drinking. While drinking,
he was talking about Savita in a very bad and abusive way before his friends. He said
that his life has been ruined after marrying her, and her entire income is spent on
maintaining her family. He also said that she did not bring enough money with her so
as to compensate his expenditure towards her family. He even made her serve them
alcohol.
13. When his friends were gone, it was late night, Savita asked Deepak to apologize to
her for all the bad things he said about her not bringing enough money, her dark
complexion etc. or else she will then and there leave his house. Deepak straight away
refused to apologize to her and said that she will not go anywhere until she brings
enough money from her house so that he can buy a new car. Their quarrel soon took
the shape of a serious problem, when Deepak angrily pored the remaining alcohol on
her and set her on fire.
14. Savita cried a lot for help, but he didn’t help her and she died on the spot because of
severe burning. Deepak ran away from the house in the morning, along with all her
jewelry and all the cash in the house. He also broke the main doors lash and locks and
also disarranged all the things in the house so as to show it a case of robbery and
murder. Savita’s body was found by the maid who came to clean the house.
15. After two days, Deepak was arrested by the police from one of his friend’s house on
the charges of Dowry Death under Section 304B of the Indian Penal Code, 1860. He
filed for bail under Section 437 of Cr.P.C. but the same got rejected. Then he filed for
bail before the Sessions Judge of Bilaspur under Section 439 of Cr.P.C.

In the Court of Mr. Omprakash Naidu, District and Sessions judge, Bilaspur (C.G.)

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 In the Matter of:

State of Chhattisgarh

V.

Deepak Gupta , S/o Rakesh Gupta, Age- 28 years

Criminal Misc. (M) No. 337/2017

FIR no. - 167/2017

Under Section – 304B of Indian Penal Code, 1860

Police Station - Uslapur Police Station, Bilaspur, C.G.

Accused under custody since – 24th January, 2017

APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL

PROCEDURE FOR GRANT OF BAIL

MOST RESPECTFULLY SUBMITTED UNDER:

1. That the accused Sh. Deepak Gupta of the applicant has been involved in a false and
frivolous case by one Sh. Suresh Tiwari, F/o Late Savita Gupta by lodging a FIR No.
167/2017 dated 23th January, 2017 under Section 304B of IPC. The accused has been
arrested by the Police of Uslapur Police stattion subsequent to the above FIR.

2. That it is submitted that the allegations made against the accused are false, frivolous
and vexatious and lack in the material substance. The accused has nothing to do with
the alleged offences. The accused belongs to a very reputed family in his locality. The
allegations are that the accused on the night of 22nd January 2017 caused the death of
her wife late Savita Gupta, by pouring alcohol on her and setting her on fire, thereby
committing the offence of Dowry Death under Section 304B of IPC. It is also false
that the accused did so because she was not listening of his demands of bringing more
money from her parents.

3. That in reality the accused was not at his house at that night, but was at his relatives
house along with his parents, thus there is no possibility that he caused Savita’s death.
It is a case of murder of Savita by some thief, as her jewelry and all the money in the

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 home was found missing the next morning. The lash and locks of the main door were
also broken, and the things in the house were found disarranged. Thus, it is a clear case
of Robbery and Murder and not Dowry Death.

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 of Bilaspur 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.

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 the 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.

11. That the Court below has failed to consider all the facts and circumstances of
the case and has wrongly dismissed the bail application.

PRAYER

In view of the above stated facts and circumstances it is most respectfully prayed that this
Honorable Court may be pleased to-

a) Grant bail to the applicant in connection with FIR No. 167/2017 registered under
section 304B IPC, for the offence of Dowry Death, at Uslapur Police Station.

b) Pass any other such order as this Honorable Court may deem fit and proper in the
interest of justice.

Place: Uslapur, Bilaspur (C.G.) Deepak Gupta

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Dated: 28th January, 2017 Applicant

Kushal Pandey

Through Counsel

VERIFICTION

I, Deepak Gupta do hereby verify that the contents of paras 1-11 are correct to my
knowledge and belief. Nothing has been concealed therein.

Place- Uslapur, Bilaspur (C.G.) Deepak Gupta

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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