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INTRODUCTION
Plaints are drafted on behalf to victim or person filling the case by the representing lawyer. Plaint points out what is the relief which the plaintiff is seeking from the court, where the case is being filed. The Plaint has got 8 parts: 1. Cause Title 2. Statements showing cause of action 3. Particular date of cause of action Statement about Jurisdiction 4. Relief or Prayer 5. Valuation of Statement 6. Schedule in the Case of Immovable Property 7. Verification.
Bail is money or some s ome form of property property that is deposited or pledged to a court a court by by a suspect, in suspect, in return for the release from custody or pre-trial pre-trial detention. If detention. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime the crime of failure failure to appear. If appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded. In some cases, bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the release of the accused person on bail are aimed at ensuring the presence of accused at his trial but without unreasonably and unjustifiably interfering with his liberty. There is no definition of bail in the Code, although the terms “bailable offence” and “non“non- bailable bailable offence” have been defined. (sec. 2(a)) 2(a))1 “Bail” has been defined in the Law Lexicon as Lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. Govind Prasad v.
Stat State of West West B engal ngal2.
1 2
The Code of Criminal Procedure, 1973 1975 CriLJ 1249
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OBJECTIVES
To study about the concept of bail under section 439 of CrPC.
To understand the format of the plaint.
To draft a plaint for a bail application from the petitioner.
RESEARCH METHODOLOGY This project is descriptive, analytical and doctrinal in approach. It is largely based on secondary sources. Books and other references are primarily helpful for the completion of this project. For the present project relevant data and information has been received and collected from secondary sources and there has been use of authentic books and websites which provided reliable information and data.
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WHAT IS A PLAINT?
Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his cause of action and other necessary particulars to seek remedy from court for redressed of his grievances. In English practice, a private memorial tendered in open court to the judge, where the party injured sets forth his cause of acti on. Origin of word can be traced in Plaint Middle English, basically from Old French plainte, feminine past participle of plaindre ‘complain’, or from Old French plaint, from Latin planctus ‘beating of the breast’. While drafting a Pliant/Written Statement, a few Sections of the Code of Civil Procedure, 1908 (Act No. V of 1908) and orders should be kept in mind: Section 15: Courts in which suits to be instituted Section 16: Suits to be instituted where subject-matter situate Section 17: for immovable property situate within jurisdiction of different Courts Section 18: of institution of suit where local li mits of jurisdiction of Courts are uncertain Section 19: Suits for compensation for wrongs to person or movables Section 20: Other suits to be instituted where defendants arise or cause of action arises Section 26: Institution of suits Order 1: Parties to Suits Order 2: Frame of Suit Order 3: Recognized Agents and Pleaders Order 4: Institution of Suit Order 6: Pleadings Generally Order 7: Plaint Order 8: Written Statement and Set-Off Both the purpose of the legal document and the context needs to be considered while drafting the plaint. Care is needed when drafting legal documents as they often create or impose legal rights and obligations. The primary purpose in drafting a legal agreement is of course to carry out the client’s instructions. The rights and obligations set out in the agreement should be expressed as clearly and unambiguously as possible. The starting
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point is to obtain clear instructions so that you know what the client is trying to achieve. Then consider the context of the transaction and the effect of relevant law. Finally consider the context of the document that you are drafting whether it forms part of a series of documents, whether it must be in ‘house style’ or in a prescribed form. Lawyers use different techniques when approaching the drafting of a formal legal a greement.
Essentials of a Plaint
Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be present in plaint. Order 7 Rule 1 of CPC lays down that a plaint must contain the following particulars;1. Plaint should contain name of that court in which suit is brought. 2. Plaint should contain name, description and residence of plaintiff. 3. Plaint should contain name, description and residence of defendant. 4. When plaintiff or defendant is minor or person of unsound mind, plaint should contain a statement to that effect. 5. Plaint should contain those facts, which have constituted cause of action. In addition to this, it should also be described in plaint when cause of action has arisen. 6. Plaint should contain those facts, which show the court has jurisdiction. 7. Plaint should contain that relief, which plaintiff claims. 8. When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain that amount, which has been so allowed or so relinquished. 9. Plaint should contain statement of value of subject-matter of suit not only for purpose of jurisdiction, but also for purpose of court-fees. 10. Plaint should contain plaintiff’s verification on oath.
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BAIL UNDER THE CODE OF CRIMINAL PROCEDURE, 1973
The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Section 436 provides for the release on bail of a person accused of a bailable offence. 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.
(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.
However, by Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was amended to make a mandatory provision that if the arrested person is accused of a bailable offense is an indigent and cannot furnish surety, the courts shall release him on his execution of a bond without sureties. Legislature by Criminal Procedure (Amendment) Act, 2005 inserted Section 436A which lays down the maximum period
for which an under trial prisoner can be detained.
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Bail in case of non-bailable offence –
Provisions as to bail in case of non-bailable offence, is laid down in Section 437 of the code. This section gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life. But (1) a person under the age of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry.
The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is believed not to be guilty of a non-bailable offence. As a safeguard, the section provides for review of the order by the Court which has released the person on bail. The power of the Magistrate under this section cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439.
439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section; (b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
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FACTS In the hypothetical case taken by the project maker, Mr. Gagan Singh, came under an agreement with Mr. Jaspal Singh for exchanging of their cars, dated 23-4-2009, in addition with it has been agreed by the parties that Mr. Gagan Singh is to pay an additional amount of Rs. 37,000, out of which Rs. 5,000 was to be paid on the spot, and Rs. 5,000 to be paid at a later date. The remaining money has to be paid later in monthly instalments of Rs. 2,000. The problem relating to the agreement which led to the jail of Mr. Gagan Singh has led to the filing of a bail application.
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IN THE HIGH COURT OF DELHI BAIL APPLICATION NO. 2004 OF 2018
IN THE MATTER OF – Sh. Gagan Singh S/o Lt. Sh. Sher Singh, D-II/53, Shahjahan Road Govt. Qtrs, Pandara Road.
……………....Petitioner
VERSUS 1. The State 2. Sh. Jaspal Singh S/o Lt. Gursevak Singh, C-I/44, Kaka Nagar, New Delhi.
……………… Respondents
APPLICATION OF BAIL UNDER SECTION 439, CODE OF CRIMINAL PROCEDURE
The petitioner most respectfully showeth –
1. That this is the first bail application moved in this Hon’ble Court on the subject in hand, and is thus entitled to invoke the Jurisdiction of this Hon’ble Cour t under section 439 of the Code of Criminal Procedure by filing the present bail application for interest of justice. Copy of identity card is annexed herewith and marked as Annexure – A.
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2. That story of the prosecution according to F.I.R is that Respondent No 2 lodged a complaint with the contention that Petitioner has issued him a cheque amounting to Rs.1,50,000/- as consideration of a car, purchased by the petitioner from the Respondent No 2, and the same was got dishonored for the want of insufficient funds. Hence, this F.I.R. Certified copy of the F.I.R. has been attached as Annexure – B 3. That the entire story contained in the FIR is false, concocted, malicious and vexatious in nature and has been cooked up by the local Police in collusion with the complainant Respondent No 2 to involve the Petitioner in the instant case and the Petitioner pray for the post-arrest bail, inter alia, on the following grounds – 3.1 That Petitioner has never purchased the alleged car from Respondent no. 2 against the consideration of Rs. 1,50,000/-, nonetheless, petitioner has exchanged his car with that of the Respondent no. 2 by entering into an agreement dated 23-04-2009 wherein it has been agreed by and between the parties that the Petitioner shall additionally pay an amount of Rs. 37,000/- to the Respondent no. 2 out of which Rs. 5,000/- were paid at the spot and Rs. 5,000/- were agreed to be paid on 01-05-2009. Remaining Rs. 27,000/- were agreed to be paid in monthly instalments of Rs. 2,000/- each.
3.2 That according to the story of prosecution as narrated in F.I.R, the Respondent no. 2 went to the house of Petitioner six months ago whereby the Petitioner purchased the alleged car from the Respondent no. 2 and promised to pay the alleged sale amount in next 6 months. It could, therefore, be said that allegedly the car was purchased by the Petitioner on 11-08-2009. Thus, there was no need to issue a cheque in favour of Respondent no. 2 by the Petitioner before the expiry stipulated time. There is also no justification of Respondent no. 2’s demand to return back the said vehicle before the lapse of the agreed period of 6 months.
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3.3 That Petitioner has been involved in the instant case with mala fide intentions to fulfil ulterior motives of Respondent no. 2. Respondent no. 2 has also tried to involve the Petitioner in another case with similar offence on the complaint of his close relative/family friend maintaining that Petitioner has furnished with the complainant a bogus cheque of someone else. The copy of such petition in the trial court has also been attached as Annexure – C. 3.4 That matter pertains to a fiscal transaction and there has been an established business relationship between the Petitioner and Respondent no. 2. Furthermore even the story of the revels that a trustful relationship has been developed between the two sides. Therefore the element of fraud and dishonest intention is simply ruled out even through the version of the complainant/Respondent no. 2. 3.5 That even according to the Section 139 of “Negotiable Instruments Act, 1881” it was mandatory for the Respondent no. 2 to serve the Petitioner with a notice pertaining to such dishonouring of the cheques (if any) prior to lodging the criminal proceedings to prove his bona-fide. 3.6 That as the matter pertains to the fiscal transactions, thus a civil suit for rendition of accounts is a proper and efficacious re medy for the same. 3.7 That the FIR has been registered on false accusations in connivance with the local police. Furthermore, if the Petitioner be kept in jail and prosecution fails to prove its case, the Period spent by the Petitioner in the Jail cannot be compensated in any way. The Petitioner is a respectable citizen and his further arrest will cause humiliation to him and his family. 3.8 That alleged offence does not fall under the provisions of prohibitory clause thus grant of bail is a rule and refusal is an exception. Presumption of innocence lies with the Petitioner unless Tried, Convicted and sentenced by the Competent Court of Law.
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3.9 That the charge if any against the Petitioner is groundless and there is no chance of the conviction of the Petitioner. Body of the Petitioner is not required to the Police anymore and no recovery is to be effectuated from the Petitioner thus no useful purposed is to be ser ved having Petitioner behind the bar before trial. 3.10
That the Petitioner is a law abiding citizen and has never been convicted
of any offence and he cannot even think of violating the law. Petitioner carries no criminal history and his past conduct cannot be negated for consideration of granting bail. 3.11
That the Petitioner is ready to furnish such security as may be sufficient
for the entire satisfaction of this Hon’ble Court and undertakes to appear before the before the Court as and when required.
Under the circumstances it is humbly prayed that the Petitioner may graciously be granted bail till the final decision of the case against them.
Dated – 1st March 2018 Place – New Delhi
Petitioner
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COUNSEL FOR THE PETITIONER
VERIFICATION
I, the above named petitioner, do hereby verify that, all the facts above mentioned are true and correct to the best of his knowledge and belief. Hence, it is verified by this petitioner on this the 26th February 2018 at Delhi.
Dated: 1st March 2018 Place : Delhi
Petitioner
COUNSEL FOR THE PETITIONER
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CONCLUSION The core skill of Drafting on the LPC essentially involves you acquiring the skills to enable you to draft various formal legal documents. Such documents need to be drafted with great care as they generally create rights and impose obligations. Although the formal structure and the content of the types of legal document that you may be required to draft on the LPC will vary according to the type of document, the aim of this Note is to give you some basic guidelines applicable to all forms of drafting. In addition and throughout the LPC you will be given further detailed guidance in terms of how to draft particular types of documents. Bail laws in India are very complicated as the bail to any accused person is at the discretion of the court which considers the facts of the case, the conduct of the accused, the background of the accused, the law and several other factors. The role of a lawyer in getting bail from the court becomes very important as the accused can be confined to judicial custody if the case is not properly presented and contested before the court by a competent lawyer.
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BIBLIOGRAPHY Primary Source:
Code of Criminal Procedure, 1973 Negotiable Instruments Act, 1881 Secondary Source: Books:
1) Kothari and Arvind G. Kothari Ltd., Drafting, Conveyancing and Pleadings, 1982, 2nd ed., N.M. Tripathi (P.), Bombay. 2) Dr. K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure, 2014, 6 th ed., Eastern Book Company Articles:
Bail, Wikipedia, (last updated, May 21 st, 2017), https://en.wikipedia.org/wiki/Bail CrPC Chapter-33, Provisions as to Bail and Bonds, Devgan, (last updated, 31 st Oct, 2014), http://devgan.in/criminal_procedure_code/chapter_33.php Crpc
Unit
–
6,
Bailable
and
Non-Bailable
Offence,
Hanumant,
http://hanumant.com/CrPC-Unit6-OffenceBail.html Essentials
of
a
Plaint,
Legalbites,
https://www.legalbites.in/essentials-of-a-plaint/
(last
updated,
15 th
Sept,
2016),
