Research Paper on Bail Provision in Non-bailable Offence

Bail is a common word and it is also very much used the word in criminal court as well as the civil court. The main objectives of this research are to know about the bail provision of Bangladesh in detail and the provision of granting bail in the non-bailable offense also to know the misuse of the power of granting bail. Bail is very much important in a criminal case. So it must be delivered by the judge with due care and deliberation.

Introduction:

Bail is a common word and it is also very much used the word in criminal court as well as the civil court. Bail is to deliver, to release. Bail is delivering something in trust to somebody for a special purpose and for a limited purpose. Bail is release after a security has been paid.

Bail is right about the party. Anyone wants a bail who are arrested living in jail means they want a bail at any time. To set free, or deliver from arrest, or out of custody, on the undertaking of some other person or persons that he or they will be responsible for the appearance, at a certain day and place, of the person bailed. The person or persons who procure the release of a prisoner from the custody of the officer, or from imprisonment, by becoming surety for his appearance in court. The security is given for the appearance of a prisoner in order to obtain his release from custody of the officer; as the man is out on bail; to go bail for anyone. The legal system that allows an accused person to be temporarily released from custody (usually on condition that a sum of money guarantees their appearance at trial); “he is out on bail”. Money that agrees to pay if a person accused of a crime does not appear on their trail. When bail has been arranged, the accused person is allowed to go free on the trail. Bail means release after a security has been paid. Traditionally, bail is some form of property deposited or pledged to a court in order to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and be guilty of the crime of failure to appear In most cases bail money will be returned at the end of the trial, if all court appearances are made, no matter whether the person is found guilty or not guilty of the crime accused. In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Countries without bail imprison the suspect before the trial only if deemed necessary. Legislatures may also set out certain crimes to be unbailable, such as capital crimes.

Under the current law of England and Wales bail simply refers to the release of the accused before trial. Under Scots law, no deposit or pledge of the property is asked for; bail is only granted where the court is satisfied the accused will turn up for trial.

Objective :

To know about the bail provision of Bangladesh in detail.
To know the provision of granting bail in the non-bailable offense.
To know the misuse of the power of granting bail.

Methodology:

Every research involves a method by which the desired result can be achieved. Here I have applied analytical method. In this regard, I have used primary and secondary sources. To complete my research work I will fallow some critical but effective process and I will fallow this process through studying books, newspapers, websites discussion with Resource Person, basic documents etc.

Definition of Bail:

Security or bond pledged or given to a court or on behalf of one accused of committing a crime, to obtain release from incarceration and to ensure the person as a future appearance in court when required during the criminal proceeding.

Interim Bail:

No magistrate. Sessions judge or any court has jurisdiction to grant interim bail during the pendency of bail application in that court. Order granting short-term bail quashed. If the magistrate, sessions judge feel that such a course should be adopted and it is always open to them either to dispose of the application on the same day and in the alternative release the accused on executing personal bond till the disposal of the application. It may be also pointed out that the applicant is entitled to claim the benefit of the proviso to section 497 (1) Cr.P.C which contains special provision for bail to women. Minors under16 years of age and sick or infirm persons.

As soon as the accused appears or brought before the court and prays for bail the Sessions judge should dispose of his Application. If the sessions judge fails to dispose of the same there is no scope for allowing the accused to continue on the bail granted by the magistrate, he is to be sent jail custody ( Sohail Thakur and others v. State).

Ad interim bail cannot be allowed to continue simply because an appeal against conviction is pending in the High Court Division. Interim bail allowed continuing further on specific terms (Nizamuddin v. State) and another important case is (Abdul Hakim Howladar v. State).

Anticipatory Bail:

Court to try and effect a settlement between the warring couple may be the laudable act but is alien to the exercise of jurisdiction while deciding an application seeking the grant of anticipatory bail. Learned senior counsel urged that the well-known parameters viz. gravity of the offense, possibility of accused absconding or threatening witness of the prosecution, inherent probabilities, for and against the accused are some of the factors which have to be considered by the court while deciding an application for the grant a bail.

The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

(i) Though the power conferred under Section 497 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

(ii) Before power under sub-section (1) of Section 497 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offense and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds, on which the belief of the applicant is based that he may be arrested for a non-bailable offense, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of the power conferred by the Section.

(iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 497 and regarding the question whether the conditions mentioned in Section 496 should be read into Section 497 cannot be treated as conclusive on the point. There is no warrant for reading into Section 497, the conditions subject to which bail can be granted, anticipatory bail cannot be refused in respect of offenses like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

(iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offense or the offenses in respect of which alone the order will be effective. While granting relief under Section 497(1) of the Code, appropriate conditions can be imposed under Section 497(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offenses which could not possibly be predicated when the order was passed.

(v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 497. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

(vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

(vii) The provisions of Section 497 cannot be invoked after the arrest of the accused. After the arrest, the accused must seek his remedy under Section 496 of the Code, if he wants to be released on bail in respect of the offense or offenses for which he is arrested.

(viii) An interim bail order can be passed under Section 497 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.

(ix) Though it is not necessary that the operation of an order passed under Section 497(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 496 or 498 of the Code within a reasonably short period after the filing of the FIR.

Misuse of Bail:

Where the co-accused issued threats to a prosecution witness and report of the allegation was lodged in the police. The co-accused was held to have abused the concession of bail granted earlier. His bail was canceled in the circumstances. Where the accused were reported to be renounced badmashes likely to misuse privilege of bail. Delay and mere bold assertion of being falsely implicated by enemies is not enough section to allow bail to them. Power available to High Court under Sub-section of S 497 no doubt has to be exercised in extraordinary circumstances but the same is meant to be exercised in the appropriate case. Misuse subsection but such power has to be exercised with care and circumspection and there should be satisfactory evidence on record to show that accused was thwarting the course of justice by adopting dilatory tactics.

Mr. X was granted a bail from the lower court against 498A and 406 at the time of bail it was not known that he has a valid passport with UK visa; hence the passport was not ceased by the court. Mr. X visited the UK within the bail period without the permission of the court. Subsequently, the fact of UK Visit was brought to the notice of the court and a case started. The law year of Mr. X’s lawyer is now pleading on the point that as Mr. X has not broken any condition of the bail bond executed (as per section 496 and 499) and as Mr. X is attending the court on the date whenever called for as Mr. X has not break any condition of the bail bond so he can go anywhere without the permission of the court (Bail bond implies only an oath that he shout attain the court whenever ask for and know special condition has been embedded in the bail bond) So the court has no right to punish Mr. X for the Visit of UK without the permission of the court and the court can not cancel or cease his passport in this case.

Bail Bond:

Criminal Law term paper Bail Bonds The principle of bail is basic to our system of justice and its practice as old as English law itself. When the administration of criminal justice was in its infancy, arrest for serious crime meant imprisonment without the preliminary hearing and long periods of time could occur between apprehension and the arrival of the King’s Justices to hold court. It was, therefore, a matter of utmost importance to a person under arrest to be able to obtain a provisional release from custody until his case was called. This was also the desideratum of the medieval sheriff, the representative of the Crown in criminal matters, who wore many hats including that of bailing officer. He preferred the conditional release of persons under arrest to their imprisonment for several reasons: it was less costly and troublesome; the jails were easy to breach and under then existing law the Jailer was hanged if a prisoner escaped; the jails were dangerous to health, and as there was no provision for adequate food, many prisoners perished before trial was held Purpose Of Bail – Influenced by factors such as these, the sheriff was inclined to discharge himself of responsibility for persons awaiting trial by handing them into the personal custody of their friends and relatives. Indeed, in its strict sense, the word bail is used to describe the person who agrees to act assuredly for the accused on his release from jail and becomes responsible for his later appearance in court at the time designated. As surety, the bail was liable under the law for any default in the accused’s appearance. Purpose Of Bail – Between the 13th and 15th centuries, the sheriff’s power to admit to bail was gradually vested, by a series of statutes, in the justices of the peace. In the case of a person committed for felony, the justices of the peace had the authority to require, if they thought fit, his remaining in jail until the trial took place, but, on the other hand, a person committed for a misdemeanor case could, at common law, insist on being released on bail if he found sufficient sureties. Writing in the mid-1700’s, Blackstone described the arrest-bail procedure his day in the following passage: When a delinquent is arrested. He ought regularly to be carried before a justice of the peace.If upon inquiry it manifestly appears that either no such crime was committed or that the suspicion entertained of the prisoner as wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise, he must be committed to prison or give bail that is, put in his securities for his appearance to answer the charge against him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention it ought to be taken. Bail is a delivery or bailment of a person to his sureties, upon their giving (together with him) sufficient security for his appearance. The notion of bail pending trial was not changed over the centuries. Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice the possibility that the accused might flee or hide must, of course, be squared with the traditional right to freedom pending trial. In order to reconcile these conflicting interests, therefore, his release on bail is conditioned upon his giving reasonable assurance in one form or another that he will appear at a certain time to stand trial. In this regard, the Supreme Court has remarked: Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as an additional assurance of the presence of the accused. Modern statutes, which regulate bail procedure in detail today and vary from jurisdiction to jurisdiction, provide that an accused may be set at liberty pending trial in several ways. For example, he might be released without security by agreeing in writing to appear at a specified time and place, i.e., on his own recognizance; or he may execute a bond with a deposit of cash or securities in an amount equal to or less than the face amount of the bond, or he may execute a bail bond which requires one or more sureties. A bail bond, with sureties, is essentially a contract between the government on the one side and the accused and his sureties on the other. Under the contract, the accused is released into the custody of the sureties on their promise to pay the government a stated sum of money if the accused fails to appear before the court in accordance with its terms. Historically, the contract of bail, traced to a gradual increase of faith in the honor of a hostage and the consequent relaxation of actual imprisonment, constitutes one of the first appearances of the concept of contract in our law.

Bail proceeding and the misuse of the power of granting bail

Forms of Bail:

In the most of States, there are several forms of the bail used, these vary from jurisdiction, but the common forms of bail include:

Recognizance – when an accused is released on recognize, he promises to the court that he will attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited; this is denominated an unsecured appearance bond or release on one’s own recognizance.
Surety – by a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions, this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. This also known as surety on the bond.
Property – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy on the property to recover the bail.
Cash – typically “cash-only,” where the only form of bail that the Court will accept is cash.
Combinations – courts often allow defendants to post cash bail or bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.

Bail Proceedings: Background

Bail is an amount of money that a criminal defendant may be ordered to pay before being released from custody pending trial. Its purpose is to ensure a defendant’s return at subsequent trial proceedings. Bail is typically determined during a defendant’s first appearance in court. A judge or other court officer sets the amount and conditions of bail. At a bail hearing, a judge has three options:

Release the defendant on his or her own recognizance or upon an unsecured appearance bond
Deny bail to the accused
Set terms of bail, including the amount of bail and any special conditions for release

In common usage, bail typically refers to criminal proceedings. However, in rare instances bail may be imposed in civil cases. Civil bail is used to directly or indirectly secure payment of a debtor to secure a performance of a civic duty. For example, bail may be employed in a civil case to arrest someone to prevent them from fleeing to avoid litigation, or it may be used to prevent an unlawful concealment or disposal of assets. The amount of bail set will be based on the probable amount of damages the plaintiff could collect. Sometimes the deposit may be used to pay the judgment to a plaintiff.

Bail law came to the U.S. through English tradition and laws. Even before the adoption of the U.S. Constitution and Bill of Rights, a judiciary act in 1789 guaranteed a right to bail in all non-capital cases. For a person charged with a capital offense (where death is a possible punishment), bail was discretionary, depending upon the seriousness of the offense.

Bail is not meant to act as pre-trial punishment or as a fine. Modern bail laws reflect an intentional emphasis on non-monetary methods to ensure a defendant’s appearance at trial. This is meant to avoid discrimination against poor defendants.

Bail may or may not be required in misdemeanor cases, depending upon the circumstances and seriousness of the offense. More serious misdemeanor cases and felonies often require a bail determination. Bail may come into play at three stages of a criminal proceeding:

During the pretrial period
Pending imposition or execution of sentence
Pending appeal of a conviction or sentence

If bail is not required, a defendant may be released on his or her own recognizance. Releasing someone on personal recognizance means that the person has promised to show up for trial or other court proceedings, without posting a bond. Release on personal recognizance may be appropriate when a person has ties to the community and has lawful and steady employment. Family status is also taken into account. Before release, a defendant must sign a document promising to appear. Failure to abide by the terms of release on personal recognizance may result in revocation of the privilege, or further criminal charges, including immediate arrest. A defendant released on personal recognizance may be required to abide by certain rules. For example, the defendant may be forbidden from traveling outside of the court’s jurisdiction or may be forbidden from contacting the victim or the victim’s family.

A court may also impose an unsecured appearance bond on a criminal defendant. A bond amount is set, but the defendant is not required to post any money. If the defendant fails to appear at subsequent proceedings or violates any terms of the bond, he or she will be required to pay the full amount of the bond.

According to the Department of Justice’s Bureau of Justice statistics, for all defendants charged with state felonies in May 2000 in the 75 most populous counties in the country:

62 percent were released prior to the disposition of their case
38 percent were detained, including 7 percent who were denied bail
Of those released, 26 percent were released on their own recognizance
37 percent were released on a commercial surety bond
About a third of those released failed to appear for a scheduled appearance were rearrested for a new offense or committed a violation that resulted in revocation of the pretrial release

Important Provision relating to Bail:

What is bail?

Bail is an alternative preventive measure to the preventive measure applied as detention against the defendant and it is applied only in case the court has made a decision about detaining the defendant.

By saying bail we understand a sum of money, securities, other valuables or, if the court permits, also real estate, which is paid to the court’s deposit account to ensure that the accused is at the disposal of the body carrying out criminal proceedings.

Thus, bail is a guarantee for the defendant to be in freedom until a judgment is made against him.

When can a person be released on bail at the moment he appeared in custody?

An arrested person can be kept in custody no more than 72 hours. During this time a charge shall be brought against him and if necessary the question of choosing detention as a preventive measure shall be determined in court. If a preventive measure is chosen regarding not keeping the person in detention or a preventive measure is not chosen at all, the latter is released. And if the detention is chosen as a preventive measure, the defendant has the right to file a motion about being released on bail.

Who makes the decision about the release on bail and when?

The court makes a decision about releasing the defendant on bail. When discussing the motion made by the pre-investigation body, the investigator or the prosecutor about detention, the court discusses also the possibility of releasing the defendant on bail.

What if the bail issue is not discussed at all at that moment? Can the defendant or his defense attorney file a motion later?

Yes, later at any investigation or trial stage the defendant or his defense attorney can file a motion to the court to release the defendant on bail, as well as to reduce the bail amount.

If the bail has been refused, can the defendant or his defense attorney again apply to court later with a request to discuss the issue once more?

According to the European Convention of Human Rights and Fundamental Freedoms, despite the fact whether the motion about the release on bail has once been rejected or not, sometime later the defendant has the right to file the same motion. It is prohibited to reject the motion with the reasoning that the previous court decision about rejecting bail has not been appealed to the Court of Appeals or to the Court of Cassation.

In the existence of which circumstances is bail applied?

Bail is an alternative preventive measure to detention. Like detention, it can only be applied to the defendant. Bail should be applied in all cases when the defendant has committed a crime which is not grave or is of medium gravity and detention as a preventive measure has been undertaken against him. Only in the existence of certain circumstances, the court can find the release on bail inadmissible by mentioning about the motives by all means. Such motives may include lack of knowledge about the defendant’s identity, not having a permanent place for living or if the defendant has made an attempt to hide from the body carrying out criminal proceedings.

The rejection of bail is impermissible when there are only reasonable doubts that a crime will be committed.

Who can file a motion about applying for bail?

Detention and bail are applied only by the court’s decision upon the investigator’s or the prosecutor’s motion or on personal initiative while the case is being heard in the court. The court can also apply for bail instead of detention upon the motion made by the defense party.

Where is bail paid at and how?

Bail is paid to the court’s deposit account in the form of money, securities, and other valuables. With the court’s permission real estate can also be accepted as bail. In the event, bail is made in the form of other valuables or real estate the pawnshop shall bear the burden of proof for the amount of those valuables.

Who can pay the bail?

The defendant, his/her relatives, and any person can pay the bail.

How and when is the defendant released from detention once the bail is paid?

Once the bail is paid the relevant document evidencing it shall be submitted to the body carrying out the proceedings, i.e. the court, the prosecutor, the investigator, the pre-investigation body. Shortly afterward the body carrying out the proceedings shall give an assignment to the administration of the detention center, which in its turn is obliged to release the defendant promptly from detention.

Who determines the amount of the bail?

The court determines the amount of the bail by considering the rules mentioned in question 8. Although the legislation does not provide the maximum amount of the bail, nevertheless the court, while determining the amount of the bail, should consider the financial state of the accused, his family conditions and the number of people who are under his care.

What kind of responsibilities does a person who has been released on bail have?

The defendant who has been released on bail is at the disposal of the body carrying out the proceedings. This means that he/she should not hide from the trial, must appear upon Summons and not to leave for another place without his permission.

What consequences can violation of the terms of the bail have?

If the terms of release on bail are violated, the prosecutor shall apply to court with a motion to take the bail as state income. The prosecutor can also file a motion on substituting bail with detention.

Can the decision on making the bail as state income and/or substituting it with detention be appealed?

Yes, if the court grants the prosecutor’s motion and makes a decision on making the bail as state income and substituting it with detention, these decisions can be appealed. The defendant or his/her defender can appeal such court decisions to the Court of Appeal and later to the Court of Cassation.

When is the bail returned?

In all cases, the bail is returned to the pawnshop, with the exception of cases when a decision has been made to make the bail as state income. If the defendant has not violated

The terms of the bail, the bail is returned after the judgment has been made. Bail is returned in all cases irrespective of the fact whether the person is sentenced to imprisonment or not.

Why Bail Refused:

There are many reasons to refuse a bail by the court. Generally, the satisfaction of court is very important, like there is not proper sufficient ground to get bail from the court, there is not enough documentation to get bail.

In below there are some mere possibility reasons for why bail is refused.

If you have not given a name or address, or the court has reasonable grounds for doubting the name or address you have given.
If the court has reasonable grounds for believing that you won’t turn up at court (e.g. if you have not turned up in the past and have a ‘bad bail record’).
If the court has reasonable grounds for believing that detention is necessary to prevent you from causing injury to a person, or loss of or damage to property.
If the court has reasonable grounds for believing that detention is necessary to prevent you from interfering with the administration of justice or the investigation of an offense.
If the court has reasonable grounds for believing that detention is necessary for your own protection or, if you are under 17, that you ought to be detained for your own interests.
If you have been arrested for an impressionable offense, and the court has reasonable grounds for believing that detention is necessary to prevent you from committing an offense.

Note the words “reasonable grounds” and “that detention is necessary” in the above rules. You may be able to argue that they should instead release you subject to particular bail conditions. Alternatively, you could argue that they should release you subject to a surety to vouch that you will turn up at court if the police want to keep you in because you have a bad bail record. If this is a likely situation, you could arrange with someone to agree to act as a surety for you, in the event that it’s needed. But note that both you and your surety commit a criminal offense if you agree to indemnify your surety(e.g. if you agree to pay them what they will owe if they are your surety and you don’t turn up).

When does Court Refuse Bail?

The general rule is that the court has to grant bail unless one of the following conditions applies.

If it’s not an impressionable offense, the court can refuse bail if you have previously not turned up after being granted bail and if the court believes that, if released on bail now, you would fail to turn up.
If it’s an impressionable offence, the court can refuse bail if it is satisfied that there are substantial grounds for believing that, if released on bail, you would (a) fail to turn up, (b) commit an offence while on bail, or (c) interfere with witnesses or otherwise obstruct the course of justice in relation to yourself or anyone else. You can also be refused bail if the court is satisfied that it hasn’t been practicable to obtain sufficient information to make up its mind.
If it’s an indictable or ‘either way’ offense (i.e. one that can be tried in front of a jury, like theft, conspiracy or major criminal damage), the court can refuse bail if you were on bail (for another offense) on the date of the offense.
In any case (whatever the offence), the court can refuse bail if it’s satisfied that you should be kept in custody for your own protection or (if under 17) for your own welfare, OR if you’re in custody following the sentence of a court, OR if you have been arrested for ‘absconding’ (not turning up after being on bail).

If a court withholds bail, you will be kept on remand. Your bail will be reviewed by the court each week (or so) until you are either released on bail or brought to trial. When reviewing bail, the court has to hear submissions from you at the first review (even if you have made the same arguments before), but can refuse to hear the same arguments after that (you can still make a submission, so long as it’s different from before).

Misuse of the power of granting bail:

In bailable offense accused have right to get bail. But, sometimes we are looking that, the accused can not get bail in bailable offense in the court. The Magistrate is influenced by political and another illegal way he cannot grant bail.

In the political cases, the Magistrate can not grant bail in the bailable offense. In this way by illegal interfere of the political leader, the independence of the judiciary is broken down and for this reason, people are confused about the court are they getting a right judgment in the court?

There are other important reasons for refused granting bail by the magistrate is taken the huge amount of money from the party. Some magistrate is corrupted, there are always take money from the party after that the magistrate granting bail in the non- bailable offense.

In the Session judge court and the High court, the division has discretionary power for granting bail. The session judge and high court division has right to grant bail in the non-bailable offense. Session judge and High court division exercise the supreme power of granting bail. For, this reason, sometimes misuse of the power of granting bail in the court.

Section Relating to Bail:

When any person other than a person accused of non bailable offence is arrested or detained without warrant by an officer in charge of 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 proceedings before such court to give bail. Officer or Court if he or it thinks fit may instead of taking bail forms, such person. Discharge him on his executing a bond thought sureties for his appearance as hereinafter provided:

Provided further, that nothing in this section shall be deemed to affect the provisions of section 107 subsection (4) section 117, subsection (3).

(1) When any person accused 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 in Court, he may be released on bail but he shall not be so released if there appear reasonable ground for believing that he has been guilty of an offence punishable by death or imprisonment for life.

Provided that the court may defect that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offense be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation inquiry or trial as the case may be that there are not reasonable grounds for believing that the accused has committed a non bailable offence but that there are sufficient grounds for further inquiry into his guilt the accused shall pending such inquiry be released on bail or at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.

(4) If at any time after the conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence it shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

(5) The High Court Division or Court of Session and in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.

Application of These Sections:

The basic conception of the word bail is the release of a person from the custody of police and delivery into the hands of sureties who undertake to produce him in Court whenever required to do. For the purpose of bail, offenses are classified into two categories, bailable and non-bailable. This section provides for the granting of bail in the bailable case and section 497 in non-bailable cases. Grand of bail in the bailable offense is a right while in the nonbailable offense the grant of bail is not a right but concession grace. Grant of bail in the offense punishable with imprisonment for less than 10 years is a rule and refusal and exception in bailable offenses, there is no question of discretion in granting bail as the word of the section are imperative. The only choice for the court is as between taking a simple recognizance of the principal offender or demanding security with surety. Ordinarily, the world bail applies to the second kind of security to the practice and procedure to the court.

Section 496 CR P.C confers an absolute right on accused to be released on bail with no provision imposing any liability for his re-arrest whilst section 497 Cr P.C confers no absolute right to bail. Which privilege is discretionary with provision imposing a liability for his re-arrest and committal to binds him to the principles and limitations flowing from the grant of such a concession it being understood that but for the concession, he could be in custody concession, it being understood that but for the concession, he could be in custody. Even in case not falling form the grant of such a concession it being understood that but for the concession, he could be in custody. Even in case not falling within the prohibitory clause, the accused person can not claim bail as a matter of right Grant of bail is not favor or concession but is a right of the detente regulated by law. Bail shall not be granted if the offense is punishable by death. or imprisonment for life if the court is of the view that there appear reasonable grounds for believing that the person concerned accused or suspected of the commission of the offense provided that he may in his discretion grant bail to a woman or a minor under the age of sixteen or a sick or infirm person. The power of release may be exercised by the Court when the accused appear or is brought before if whether during an investigation or otherwise.

The basic essential governing the matter of granting bail is that bail should never be withheld as punishment. Grant of bail is a rule and same could not be withheld by way of punishment.

Principles of bail

Bail on Humanitarian Ground:

A sick or infirm may be released on bail even in a case of capital punishment. Grant of bail to a woman is not a matter of right yet intention of Legislature appears to be that bail should invariably be granted to a woman unless any special circumstances exist on record to warrant refusal of bail. A Court should grant bail to a woman even when she is an accused of murder. Where there was no evidence to show that woman accused had been party to the conspiracy to commit murder they were enlarged of bail (PL) 1983 in such circumstances the existence of a suckling baby may be an additional ground in favor of the grant of bail.

Bail may be granted to a student to take an examination with the direction that he should surrender to the court on the conclusion of the examination.

Minor is an also point of granting to Bail. Lunatic also point to granting to Bail.

Principles for Granting of pre-arrest Bail:

Power of granting anticipatory bail is very sparingly used by the High court to save a citizen from unnecessary harassment and humiliation in the hands of police on the flimsy ground or with the ulterior motive or out of the political design. This power can not be exercised in each and every case as a substitute for the exercise of such power by the court below. A person cannot be enlarged on anticipatory bail how high soever he maybe unless conditions for granting such bail are satisfied. The considerations which are to weigh with the Court while dealing with an application for bail before arrest are quite different from those which are to be taken into account after a person has been arrested and he moves for being released on bail: It is only in extraordinary circumstances that a person may be admitted to ball before arrest In a cognizable case. Where petitioners were apprehending arrest on account of some ulterior motives on part of someone in authority or otherwise hostile to them. Criminal law must have its normal course and it would be for the competent Court to determine the question of bail in accordance with law after the accused persons had surrendered. Though grant of bail before the arrest is rare, yet petitioner has probably. been falsely involved in a case and is likely to suffer irreparable Injury to his dignity respect and reputation.

In order to justify the grant of pre-arrest bail, the petitioner must show that he apprehends his arrest on account of ulterior motives. Pre-arrest bail may not be granted where there is no allegation made against the police that they have falsely implicated the petitioner in the case. Where there is nothing to show that there has been false involvement and the accusation is of a heinous offense like sodomy bail before the arrest cannot be granted.

The main conditions to be satisfied before the exercise of jurisdiction to allow pre-arrest bail under section 498. Cr. P. C. is:

(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner.

(b) that the petitioner should physically surrender to the Court.

(c) that on account of ulterior motives, particularly on that part of the police. there should be the apprehension of harassment and undue irreparable humiliation by means of unjustly arresting.

(d) that it should be otherwise a fit case on merits for the exercise of discretion in favor of the petitioner for the purpose of bail. In this behalf the provision contained in section 497, Cr. P.C. would have to be kept in mind.

(e) that unless there is reasonable explanation the petitioner should have earlier moved the Sessions Court, for the same relief under section 498. Cr. P.C.

Guiding Principles in bail matters:

As a general rule bail should not be withheld as punishment unless the facts warrant such course. The state [3CR (SC) 50). Courts exercising hail jurisdiction should refrain from including in elaborate reasoning in their orders in justification of grant or non-grant of bait (Kashi Nath Ray v. the State of Bihar, AIR 1996 SC 3240). Bail was 1101 to be refused to accused by way of Punishment and the prosecution was required to show the existence of reasonable grounds and satisfactory evidence ill support of allegations against an accused and it prosecution failed to same then matter would become to, further 1110 the of accused and hail in circumstances should not be withheld.

While granting hail the Court must consider the gravity of the offence of which the accused is charged the character of the evidence, circumstances which are peculiar to the accused as reasonable possibility of the presence of the accused not being secured at tile trial responsible apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other considerations (K. Chandra v. State. I993 (1) Crimes 1 49 (Delhi).

The matters for consideration ill an application for hail may be enumerated as follows:

(a) Whether there is or is not a reasonable ground for believing that the applicant has committed the offense with which he is charged:

(b) The nature and gravity of the charge:

(d) The danger of tile applicants absconding if he is released on hail:

(e) The character and means and standing oh’ tile applicant:

(f) The danger of the allegations of alleged being continued or repeated assuming that the occluding is guilty of having committed that offense in the past:

(g) The danger of witnesses being tampered with:

(h) Opportunity for the applicant to prepare his defense and

(i) the fact that the applicant has already been sonic months in jail and that the trial is not likely to conclude to, several months at least (Hamarayan AIR I 958 Punj I 23: Khitish Chandra. (1972) 38 Cut Li 777: 1977 Ml.) (Cr.) 284: Ii R (1977) 2 Kant 1025).

While dealing with a bail application tile High Court should take 1110 account the various considerations. Such as—

(i ) nature and seriousness of’ the offense:

(ii) The character of’ the evidence:

(iii) Circumstances peculiar to the accused:

(iv) The responsible apprehension of witnesses being tampered with:

(v) The larger interests of tile public or the state: and

(vi) Similar other considerations which arise when a court is asked to admit accused to bail in a non-bailable offense would also apply in case of section 498 (Md. Ayub v. Md. Yaqub).

The matters for consideration in an application for bail may be enumerated as follows :

whether there is or is not a reasonable ground for believing that the applicant has committed the offence with which he is charged the Nature and gravity of the charge Severity or degree of the punishment which might fall in the particular circumstances in case of the character and means and standing of the application: (c) the danger of the alleged offence being continued or repeated assuming that the accused Is guilty of having that offence in the past: (d) the danger of witnesses being tampered with: (e) opportunity of the applicant prepare his deference and (f) the fact that the applicant has already been some months in jail and that the trial is not key to conclude for several months at least (1977 Cr. U 1724). If the Court is satisfied after taking into consideration that the accused has its roots in the community and is not likely to abscond it can safely release the accused on his personal bond, that to decide if the accused has its roots to society, the following are relevant, namely. (1) length of his residence in the community: (2) his employment status: (3) history and financial condition, his families and relationship, his reputation, character and monetary condition, his reputation, character and monitory condition, his prior criminal record including any record of any prior release on bond or recognizance. The identity of the responsible member of the community preparing to vouchsafe of his reliability, nature of the offense charged and the apparent probability of conviction and the likely sentence and any other factor indicating the tics of the accused to the community or bearing on the risk of willful failure to appear.

Bail should be granted when the object of selection can be achieved by requiring the accused to furnish security, more so when there is no reason to apprehend ascendance or tampering with evidence. Only because there is the necessity of searching the house of the accused, bail cannot be refused. For the purpose of granting bail in pending cases, the following points are very much relevant, namely. (1) bail should not be refused as a matter or punishment; (2) the applicant should be presumed to be innocent till he is proved to be guilty: (3) nature of acquisition and the extent of punishment: (4) bail is the rule and rejection is exception; (5) likelihood of jumping the bail and tampering with evidence. The possibility of non-availability of the accused during trial, due apprehension of his being murdered for retaliation has been considered to be a relevant consideration while refusing bail. When proper treatment is available in the bail on the ground of sickness is to be refused. It is to be remembered that while adjudicating a bail petition detail examination of evidence and elaborate documentation of the merits of the case should be avoided. Successive applications for bail, should not be encouraged unless new grounds are available and are successfully made. The likelihood of interference with witnesses polluting with imprisonment for life and the accused petitioner’s are men of date devil character and are also involved in other criminal cases, the applicants’ prayer for bail should not be granted. That accused must appear in Court and surrender when he applies for bail and he cannot file the bail petition through counsel without putting appearance.

Condition of Bail

Condition:

The law enjoins certain conditions for the release on bail, and the Criminal Procedure Code lays down various provisions regulating the conditions that can be imposed while granting bail to a person.

Section 499. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police or court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police or court, as the may be.

If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court or Court of Sessions or other courts to answer the charge.

The word “conditioned” in section 499, Cr.P.C. is not so comprehensive as to include all continued that the Magistrate may like to impose e.g., that accused is to live in a certain place.[PLD 1955 Dhaka 84].

Non- bailable offense:

In the case of non–bailable offense, granting of bail is discretionary. In certain cases, bail cannot be granted, while in certain other cases, bail may be granted at the discretion of the court. When a discretion is vested in the court the discretion has to be exercised subject to such reasonable conditions as the court deems to fit. In non–bailable cases, grant of bail is only a concession allowed person. The court should see that the concession is not misused and so any reasonable condition can be imposed when granting bail in such cases.

Where the accused were charged under Section 452, 109 and 120-B .Cr. P.C., for carrying on demonstrations with a view to bringing pressure on the Government to give up its to impose grazing fees and the court in granting bail, imposed a condition, that the accused should execute bond not to abet to take part in such demonstration, it was held that conditions were not unreasonable. The only condition contemplated by Section 499, Cr.p.c. is the attendance of the accused in court on a fixed day and continue to attend court until otherwise directed. Any other condition such as undertaking not to deliver speeches until the disposal of the case is invalid and will not result in forfeiture of the bond.(AIR 1939 cal 714 = 41 Cr. LJ 138= 43C.W.N. 6 93]

The condition of bail:

The conditions for grant of bail to a person of bail offense should not be harsh, oppressive and virtually be resulting in the denial of bail. Sub-sec. (3) empowers them to impose two conditions in the case mentioned in subclauses(a), (b) and (c). Under sec. (1) (a) the High Court or the Court of Session is also authorized to impose such conditions. But any condition, which has no reference to the fairness or propriety of investigation or trail, cannot be imposed in granting bail. The Bombay High Court has held that it was improper on the part of the court to impose the condition that he would pay the complainant the amount secured by him as a result of cheating and again to cancel the bail on his inability to return the amount in full.

Anwar Vs. state 1995 Cr. LJ 863 (Orin) [the condition for release on the bail for depositing cash security with one surety in addition to bail bond held harsh and progressive.
1981 Cr. LJ 954: (1981)2 Andh WR 1.

Recording of reasons:

A police officer or a Court relating a person on bail under sub-sec. (1) has to record his or its reasons for releasing any person on bail and under sub-sec.(2) has to record his or its special reasons for granting bail. Even in case of refusal, reasons, are required to be recorded, otherwise, the High Court will interfere.

Anticipatory Bail or Bail before Arrest

Meaning:

A bail in anticipation of arrest or detection is termed as anticipatory bail. A person is to be released on bail (1) when he is arrested or detained without warrant by an officer-in-charge of police stations, or (2) when he appears or is brought before a court. The judicial opinion is

Conflicting on the issue whether a person can apply for release on bail in anticipation of arrest or detention.

The Allahabad High Court held that bail cannot be granted to an accused who had neither been arrested nor detained by a police nor appeared personally in Court. The decision was based on the following reasons:

The liability of a person to arrest is no restraint. Nationally every person is liable to arrest for anything which the person having authority to arrest consider him to have committed.
When a person appears in court his very physical presence results in his placing himself in the custody of the court. Whether the court actually orders his being taking into custody or allows him bail at once, nationally it must be held that the person was in the custody of the court and got his release on bail.
Appearing through counsel cannot naturally result is even national custody of the court over the person concerned. It may be that the applicant might give his address in application but there cannot be any undertaking that he would not move away from that place. The word appears in Section 496 and 497, P.C.does do not contemplate the appearance through counsel.
A person who is not in custody stands in no need of order of bail. If he is not in custody, he is free to go wherever he likes, in the case of such a person an order of bail can be rightly considered to be an unjustified on his movement instead of any to him.(1955Cr.L.J.275=AIR 1955M.B.98)

For the exercise of discretion of grant of bail before with effect of virtual restraint of apprehension of (1)imminent arrest with the effect of virtual restraint of petitioned and (2) harassment and irreparable humiliation by means of unjustified arrest on account of ulterior motives particularly on part of Police to be shown.

Main conditions:

The main conditions to be satisfied exercise of jurisdiction to allow pre-arrest bail i.c, 498, Cr.P.C, are:-

that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
that the petitioner should physically surrender to the court ;
that on account of ulterior motives particularly on the part of the police, there should be the apprehension of harassment and under irreparable humiliation by means of unjustified arrest; that it should be otherwise a fit case on merits for the exercise of discretion in favor of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C.would have to be kept in mind; that unless there is the reasonable explanation, the petitioner should have earlier moved the Sessions court the same under section 498, Cr.P.C [PLD 1974 Lah.256].

Ordinarily, an application for bail before arrest should be presented to the Session Judge. [PLJ1 973 Lah.524].

The anticipatory bail may be granted when the offense is bailable and non-cognizable. [ NLR 1983 Cr Lah. 334].

Maintainability of second anticipatory bail application:

The second anticipatory bail application is maintainable even when earlier one was dismissed on merits or withdrawn (Imratlal Vishwakarma Vs.State of M.P; 1997(1) Crimes 189 (M.P). Rejection of bail application at a rarlie stage does not preclude filling of fresh application in changed circumstances (Prasanjeet Basu Mallick Vs. The state of Orissa, 1997 Cr.LJ 902(Ori).

Duration of anticipatory bail:

In Gurbaksh Singh Vs. State, the court made it clear that the operation of an order passed under Sec. 438(1) necessarily be limited in point of time.

The Court may if there are reasons for governor by Terrorist Areas (Special Courts) Act, 1984. Promode Khare 1982 Cr. LR 344(MP).

Anticipatory bail under sec.438 can be granted to persons accused of offenses under the Karnataka Forest Act, 1963 and apprehending arrest by the Range Forest Officer. H.S. Manjunath Vs.State 1995 Cr. 179 (Kant) (DB).

Forum:

The appropriate court within whose jurisdiction the offense is alleged to have been committed or the arrest is apprehended may grant anticipatory bail. But some of the High Courts have taken the High Court can release on anticipatory bail a person residing within its jurisdiction although the offense has been committed outside the jurisdiction of that High Court. However, disagreeing with the said decisions of the Calcutta, Karnataka, Delhi and Bombay High Courts, it has been held by the Madhya Pradesh High Court in Pradeep Kumar Vs. State that in order to ascertain the venue of jurisdiction of the court, provisions of sec.438 have to be read along with other relevant provisions of the Code and combined reading of sec.438 and Chapter XIII of the code, which is explicit, denotes that the jurisdiction to try the accused of an offence alleged has to be determined from the area within which the offence is committed and not the where the offender may be found or residing. Amar Bharati 1980Cr.LJ385:1981 Rajdhani LR 37; Syed Zafrul Hossain Cr.LJ(part); C.T.Mathew 1985 Cr. LJ 1316(Ker).

Cancellation of anticipatory bail:

Anticipatory bail granted by The High Court can only be canceled under Sec. 439(2) of the Code. It has, however, been held that when an ad interim anticipatory bail was granted to the applicant and such interim bail was set aside on hearing both sides, such an order is not an order of cancellation of the bail. Therefore, the principles on which the bail can be canceled would not be attracted when interim anticipatory bail is canceled on hearing both sides. It has been held that when an anticipatory bail is granted on giving the full hearing to the public prosecutor and repeated attempts to have it canceled have failed it cannot be canceled unless fresh materials are placed and the conditions for cancellation of bail as provide under sec.439(2) are fulfilled. Rejection of bail is a non-bail able case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, broadly (illustrative and not exhaustive)are: Interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the course of justice or abuse of the concession granted to the accused in any manner.

Bail before arrest:

Although in the Code of Criminal Procedure there is no specific provision for granting anticipatory bail, yet due to judicial pronouncements of the Supreme Court of Pakistan and by our Supreme Court it is now established that anticipatory bail can be granted (Abdul Wahab Shah Chowdhury Vs. The State, 19 BLD (AD) (1999) 189(para26)=1999 BLC (AD) 195). For bail before arrest section arrest section 498, Cr.P.C would be called in aid, before the Court of Sessions and the High Court even where the court not seized directly of the proceedings in question and where no where no actual arrest has been made so far but anticipatory bail is asked for e.g. where the case is still at the stage of investigation by the police or is pending in a subordinate court.

Bail on special Laws

Special law proving for bail:

Where a special law makes provision for the disposal of bail applications, the High Court has no jurisdiction to grant bail in contravention of those provisions. There is no question of disputing with a Special enactment or permitting it to govern the field for which it is meant, or it caters; but it cannot be stretched too far to enable it to travel outside its scheme and to disturb the continuance of the normal law of the land; much less to allows it to occupy the field for which it does not provide.

Special Court or Tribunal did not constitute:

Where an offense is tribal by a special Court, and the Special Court has not been constituted when a pre-arrest bail application is made to the High Court, the Court can exercise jurisdiction under this section even when the special Court is constituted after the application is made.

Prevention of Corruption Act:

Where the petitioner was charged with offenses under section 161, P.C. and section 5 of Prevention of Corruption Act, punishable by 3 years and 7 years’ R.I respectively. The prohibitory clause as given in section 497, Cr. P.C. was not attracted to the petitioner’s case. He was enlarged on bail on such sole consideration. Where in a case under the Act the accused petitioner was no longer required by the Police for investigation, he was released on bail.

Embezzlement:

Where the total amount involved in all the cases was approximately Rs. 24,00,000 out of which an amount of Rs. 9,04,000 had not been recovered while the remaining amount had already been recovered. Bail was granted. Where the petitioners were in jail ever since the date of his arrest and the period of their detention came to more than a year.

Pre-arrest bail:

Where the petitioner was a bank employee against whom the serious allegation was made of embezzlement of public money lying in trust with him. The case was not fit for granting pre-arrest bail at that stage.

Custom Act:

Where an offense has been committed under Customs Act bail may be granted Criminal Procedure Code. Where the petitioner a carrier for the owner, was charged under Customs Act for smuggling narcotics, he was not granted bail even when the offenses were punishable with ten year’s R.I. only. But where the accused was only a carrier and he had no reason to doubt that goods sought to be exported out of Bangladesh were contraband or the company for which they acted was a fictitious firm.

The special law not specifically providing for bail:

Where the special or local law does not specifically provide for bail, provisions of Cr. P. Code would apply and bail may be granted by ordinary Courts. As there is nothing in foreign Exchange Regulation Act to regulate matters of bail, the powers of the High Court under section 498, to admit a person accused of an offence under the Act to bail has not been restricted or taken away and the High Court has jurisdiction to admit persons accused under the Act, to bail.

Appeal filed under the special law:

Where an accused is convicted under a special law and he files an appeal to a tribunal set up under that law but there is no provision under which the tribunal may enlarge him on bail pending the disposal of the appeal, it will be presumed that such appellate tribunal has the power to pass interim orders, including an order to release the convicted on bail pending the decision of the appeal. Mohammad Mubarak v. the State. 1998 P.Cr. I .j