2. Whether bail is a right or privilege: A critical analysis.
1.Introduction:
Bail is a common word and it is also very much used word in criminal court as well as 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 of the party. Anyone want a bail who is arrested living in jail means they wants 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 surely for his
appearance in court. The security 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 any one. 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 at their trail. When bail has
been arranged, the accused person is allowed to go free until 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.
3. 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 property is asked for; bail is only granted
where the court is satisfied the accused will turn up for trial.
2.Conceptual Framework
Definitionof 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.
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’s future appearance in court when
required during the criminal proceeding.
There are four types of bails. They are described below;
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 session’s 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)[1].
4. 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) [2]
Another important case is (Abdul Hakim Howladar v. State)3.
Anticipatory Bail:
Court to try and effect a settlement between the warning couple may be laudable act but is alien
to the exercise of jurisdiction while deciding an application seeking grant of anticipatory bail.
Learned senior counsel urged that the well known parameters viz. gravity of offence, 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 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 offence 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 offence, 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 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,
5. anticipatory bail cannot be refused in respect of offences 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 offence or the offences 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 offences 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
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 offence or offences 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 reasonable short period after the filing of the FIR.
Misuse of Bail:
6. Where the co accused issued threats to a prosecution witness and report of the allegation was
lodged in police. The co accused was held to have abused the concession of bail granted earlier.
His bail was cancelled in the circumstances. Where the accused where reported to be renounced
bad mashes 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 appropriate case. Misuse sub section 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.4
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 UK within the bail priod 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 break 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 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 the 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 accuser’s appearance. Purpose Of Bail –
7. 3Between the 13th and 15thcenturies 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. 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 or 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.
8. 3.Legal Framework
3.1Bail proceeding
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 debt
or to secure a performance of a civil 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.
9. 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
10. 3.2 Sections of CRPC
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 debt
or to secure a performance of a civil 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
11. 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
3.3Applicationof Section
The basic conception of the word bail is 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. Offences are classified into two categories, bailable and non bailable.
This section provides for the granting of bail in bailable case and section 497 in non bailable
cases. Grand of bail in baliable offence is a right while in nonbailable offence the grant of bail is
not a right but concession grace. Grant of bail in offence punishable with imprisonment for less
than 10 years is a rule and refusal and exception in bailable offences, 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 [3].
12. Section 496 CR P.C confers an absolute right on accused to be released on bail with no
provision imposing any liability for his rear rest 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
from 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 prohibitory clause, accused person cannot 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. Ball shall not be granted if the offence is punishable with 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 offence 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 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.
3.4 It is a right in bailableoffence
In bailable offences, there is no direction to the court in granting bail, the only choice given on
the court is either to take a simple recognizance of the person released or to demand security.
The court has not discretion in a bailable offences, while granting bail under section 496, Cr.P.C.
to impose any condition expect the demand of security with sureties. [AIR 1940 Mad
77=1948(1) M.L.J.332=1948 M.W.N.368].
In the case of bailable offences, the accused had an indefeasible right to
grant of irrespective of his conduct however, reprehensible it may be. [1981 P.Cr.LJ
788=NLR 1981 Cr.LJ741].
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.
13. (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 they may be.
(2) 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 court 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].
So that bail is a right for the bailable offence.
3.5 It is a privilegein non-bailableoffence
a. Non- bailable offence:
In the case of non –bailable offence, 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 –bail able 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 where charged under Section 452, 109 and 120-B .Cr. P.C., for carrying
on demonstrations with a view to bring 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]
b. Condition of bail:
14. The conditions for grant of bail to a person of bail offence should not be harsh, oppressive and
virtually resulting in denial of bail. Sub-sec. (3) empowers the to impose two conditions in
case mentioned in sub- clauses(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.
1. 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.
2. Sk. 1981 Cr. LJ 954: (1981)2 Andh WR 1.
c. 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.
4. Findings
Misuse of the power of granting bail
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
15. 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 debt
or to secure a performance of a civil 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.
16. 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
5. Recommendations
The High Court Division and the Session Judge should exercise the power independently.
Strict monitoring mechanism should be created by the government for the accused who
will be released on bail so that they cannot influence the witness.
The Court should be independent in taking decision in the matter of granting bail.
The amount of bail bond should be sufficient.
Minor and women should not be given scope to enter in the arena of crime. The
government should provide strong monitoring system for them.
17. 6. Conclusion
From the above mentioned discussion it is clear that Bail matter plays a significant role in a
criminal case, because it is the ultimate goal of the accused. Bail is the right of the party. Anyone
wants a bail who is 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.
When bail has been arranged, the accused person is allowed to go free until the trail. 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.
An arrested person can be kept under 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 detention is chosen as a preventive measure, the defendant has the right to file a motion
about being released on bail.
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. 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.
18. Bail is very much important in a criminal case. So it must be delivered by the judge with due
care and deliberation.
7. Bibliography
Books:
1. Halim Abdul The text Book on Criminal Procedure, Fifth Edition, (Dhaka: Shams
Publications, 2006)
2. Mitra, B. B. The Code of Criminal Procedure, Third Edition, (Calcutta: Eastern Law
House, 2002)
3. Sikder M. Answer Uddin, The Code of Criminal Procedure, Second Edition, (Dhaka: A.
Akhter Traders, 2003)
4. Islam md. Zahurul, The Code of Criminal Procedure, Third Edition, (Dhaka: Mullick
Brothers, 1986)
5. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 17th Edition, (Calcutta: Wadhwa
& Company (Pvt.) Ltd, Reprint 2006)
6. Huq Zahirul, Law and Practice of Criminal Procedure, Fifth Edition, (Dhaka: Subarna
Publication, 1987)
Website:
1. www.definitionofbail.com
2. www.groundofbail.com
3. www.typeofbailbd.com
