Analysis of the Bail Provision of Bangladesh
Chapter One
1.1 Introduction
The concise oxford dictionary defines bail as security for the appearance of prisoner on giving which the accused is released during pending of trial. In the same dictionary the meaning of the world bail as a verb is giving as to admit to bail to relapse on security given for appearance. According to the chamber twentieth century dictionary, bail is the security given and used as a verb, it means to set a person frees by giving security for him or to release on the security of another. The word bail is derived from the old French verb bailer who means to given or deliver according to wasters new international. According to the English Dictionary the word bail is means to bear a burden. In judicial dictionary bail is defines as follows; Bail is when a mean is taken or arrested for felony, suspension to felony indicated of felony, or bail able offering surety to those which have authority to bail him which sureties are bound for him to the kings use in a creating sum of money or body for body, that be shall appear before the justice of goal delivery at the next sessions, etc. Then upon the bounds of those securities as is aforesaid he is bailed, that is to say set a liberty until the day appointed for his appearance. In a civil mater the term bail applies to those persons who become sureties or bind themselves either to satisfy the plaintiff in respect of this debt or costs or to surrender the defendant in to custody if the judgment is against him and he fails to satisfy it.
In the law lexicon, bail is defined as to set at liberty a persons arrested or imprisoned or security being taken for his appearance on a day and at a place certain, and such security is called bail because the party arrested or impersonal is delivered in to the hands of those who bind themselves for his forthcoming. So that person can avoid harassment.
1.2 Objectives of Research:
The objective for which this research paper has been prepared:
1. To sort out on which situation an individual is competent to apply for the bail,
2. To figure out the value of the bail in present perspective and the abuse of the bail,
3. To understand the proceeding more specifically,
4. To understand the legal importance of a bail,
5. Finally to go through the different aspect of bail.
1.3 Research Methodology:
I have collected the information’s from the secondary sources like teacher and different books journal, research papers, magazines and others different sources and also annual report published by the NGOs.
1.4. Definition of Bail
Bail is matter of procedure privilege at the most, and not an accused right, at least until it is granted. Where the statutes does not contain a specific provision in the matter; view that no procedure can be adopted however reasonable and report it may be unless there is an express provisional sanctioning it in the criminal procedure code is hardly courted and the correct principle is that is matters of procedure a particular procedure should be permitted if it is not prohibited. Therefore, bail may be granted in such class on general principles.
The basis conception of the word bail is release of a person from the custody of police and delivery into the hand of sureties who undertake to produce him before court whenever required to do so. An accused person is said at common law, to be admitted to bail at common law, to be admitted to bail, when he is related from the custody of the officers of the court and is default of so ding are it liable to forfeit such sum as is specified when bail is granted.
The term bail in English common law as explained in encyclopedia Britannica means the freeing or setting at liberty of one arrested or impressionable upon by action, either civil or criminal, on surety taken for his appearance on a certain day and at a place named. The surety in termed bail, because the person arrested or imprisoned is placed in the custody of those who bind themselves or become bail for his due appearance when required. So he may be reserved by them if they suspect that he is court, when they are discharged from further liberty. The sureties must be sufficient in the opinion of the court to answer for the rule only householders are accepted; an infant would not be accepted. Bail is obligatory in all summary cases. It is also obligatory in all misdemeanors, except such as have been placed on the level of felonies;
viz; obtains or attempting to obtain property on false pretences receiving property so obtained or stole, perjury or subornation or perjury, consentient of birth, willful or indecent exposure of the person, riot, assault in pursuance of a conspiracy to raise wages, assault upon a police officer in the execution of his duty or upon any one assisting him, neglect or breach of duty as a officer, any prosecution of which the costs are payable out of the country or brought rate or fund.
Categories of offences
Criminal procedure code has under section 5.4 (b) Categorizes offences of bailable and non-bailable. The offences under each of the heads have been specified in the schedule to the code.
A. Bail in bailable offence
Section 496; cr. p. c. provides that in the cases of bail able offences the persons accused has an indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. The provisions of the section are mandatory and the court or the officer in charge of the police station, as the case may be, is bound to release the person in custody who is accused of a bail able offence, on bail, provided he is prepared to give, it or on recognizance’s.
The seriousness of the offence is immaterial for the purpose of bail, provided that the offence is bail able. Where the accused is change with a non bail able offence but it is found that the offence, if any made out on the facts was bail able the accused must be bailed out. The court has no discretion must be bailed out. The court has no discretion matter. Where the High Court ordered that bail may be granted by the Magistrate after recording some evidence and the Magistrate fund that the charge against the accused could be only for bail able offence, he was right in admitting the accused to bail without recording any evidence.
1.5 History of Bail
The United States’ bail system has evolved from a system developed in England during the Middle Ages. In 1677, the English parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates would set terms for bail. The English Bill of Rights of 1689 declared restrictions against “excessive bail” and later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. The Sixth Amendment to the Constitution states that all people under arrest must “be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is accused of a bailable offense. Bail law in the United States remained relatively unchanged from 1789 until 1966. In 1966, the U.S. Congress passed the Bail Reform Act, which was designed to allow for the release of defendants with as small a financial burden as possible. Before signing the act, President Lyndon B. Johnson gave a speech that contained stunning examples of how the bail system had hurt people in the past. Here’s one particularly disturbing example: “A man spent two months in jail before being acquitted. In that period, he lost his job, he lost his car, he lost his family — it was split up. He did not find another job, following that, for four months”. Other anecdotes related similar stories: poor people spending months in jail only to later have the charges dropped; others forced to sit in jail, unable to work, only to be found innocent of all charges. In short, the bail system was biased against the poor and filling jails with people who should be out on bail.
The next major revision to U.S. bail law came with the Bail Reform Act of 1984, which replaced its 1966 predecessor. While the previous Reform Act had helped to overturn discrimination against the poor, it had left open a serious loophole that allowed many dangerous suspects to receive bail as long as they didn’t appear to be flight risks. This new law stated that defendants should be held until trial if they’re judged dangerous to the community. The law also established new categories of who could be held without bail ~ mostly those charged with very serious crimes, repeat offenders, the potentially dangerous and anyone who might be a flight risk. And finally, the act stated that those who were eligible for bail had to have a bail hearing.
Purposes:
The object of keeping an accused person in detention prior to, or during the trial is not punishment but-
• to prevent repetition of offence with which he is charged, and
• to secure his attendance at the trial
However, every criminal proceeding is based on a prima facie assumption of guilt and again there is a presumption of innocence in favor of the accused. Bail serves the purpose of presumption of innocence. And at the same time, the conditions of bail like appearance in the court on fixed date and time serves the purpose prima facie assumption of guilt against the accused. There are varieties of purposes behind granting bail. This may be, for example, for appearance before a court; for presenting appeal; pending reference revision; or for the purpose of giving evidence etc.
Bail by Police:
An officer in charge of police station ids bound to grant bail in bail able cases, and in improper refusal to do so will amount to a violation of duty. A person arrested by the police under s. 55 of the code should be given the option of release on reasonable being furnished. The bail should not be excessive and no needless impediment should be place in the way of being admitted to bail. The intention of the law is that in such a case the man is ordinary to be set t liberty and it is only when he is unable to furnish such moderate security, if any, required him as is suitable for the purpose of securing his appearance before the court pending inquiry, that he should remain in detention.
Conviction on bail able offence:
Section 496 will not apply when an accused person is convicted of an offence there is no general offence is entitled as of right to be enlarged on bail during the tendency of this appeal against conviction. Bail is always in the discretion of the court and this discretion has of necessity to be exercised upon the facts and circumstances of each case according to sound judicial principles.
B. Non-bail able offence:
Whenever a court requires accused persons to furnish a bail bond, the terms of the bail should normally be for attendance and other conditions should not be imposed. This would be more so in a cases where the accused is called upon to be of good behavior; since there is a separating distinct provision of law for this purpose. It would be improve to impose such condition in a bail bond and to ignore the provision of the code which provide for such cases. But in the cash of non-bail able offences a court may while granting bail to the accused impose conditions other than fining of bail for the attendance of the accused. Such conditions will not be illegal; An order imposing a condition that the accused should confine their movements to the municipal limits of the town as long as the session case way pending and report themselves twice a day to the police station was held to be not illegal. Where a woman is accused of man bail able office and the situation was such that all her relations within prohibitive degrees were arrayed against her and the court ordered that she should furnish surety of one of such relatives. The law does not contemplate the incorporation of condition in the bail bonds, but it does not say that the courts have no powers while granting bail to make sure that the offences allegedly committed by the accused persons are not repeated by them. Therefore, where the petitions have invoked the special jurisdiction of the high court for grant of leave to appeal against the high courts order refusing bail it is essentially a matter of discretion with court whether or not to grant this leave on a consideration of the circumstances of the cases. It can not be argued that the court has no powers to lay down conditions on which it would grant leave in a given case.
Right of bail:
Bail is a matter of procedural privilege at the most, and not a right of the accused at least until it is granted. The provisions regarding bail are essentially a part of the law of procedure, and as such, must be regulated by the law under which a particular trial is held. The commission of an offence does not carry with it a right of bail, such a right is dependent on the provisions.
Contained and statute and to the statute alone can the court look for any right which the offender claims. Where the status does not contain a specific provision in the matters; the view that no procedure can be adopted, however reasonable and proper it may be, unless there is an express provisions sanctioning it in the criminal procedure code, is hardly correct and there correct principles is that in matters of procedure, a particular procedure should be considered to be permitted if it is not prohibited. There fore, bail may be granted in such cases on general principles.
Chapter Two
2.1 General provisions of Bail
a. When an accused surrenders in the court and applies for bail, the subordinate court have jurisdiction to release him on personal bond.
b. The courts should be liberal in this matter but the facts and the circumstances of each case should be considered and taken into account.
c. In cases of women and children courts should refer to release them on personal bonds pending the disposal of their bail applications as there is always a fear of sex abuse and child awes in jail as well as police custody and no one likes to report such outrages to the authorities out of shame or other reasons.
d. The bail applications should be decided as expeditiously as possible and should not be allowed to remain pending for long. If practicable the bail applications should be considered the sum up.
2.2 Interim bail
No Magistrate, Sessions judge or any courts he jurisdiction to grant interim bail during the tendency of bail application in that court. Order granting short term bail quashed. It the magistrate / sessions judge feel that such a course should be adopted and it is always open to them chatter to dispose of the application on the same day and in the alterative release the accused on executing personal bond till the disposal of the application. It may be also be pointed that the application is entitled to claim the benefit is provided in section 497 (1) Cr. P.C., which contains special provision of bail to women, minors (under 16 years of age) and sick or infirm persons. No Magistrate or Session Judge is empowered to grant interim bail during the tendency of the bail application. Ad-interim bail can not 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.
2.3. Temporary Bail
The court which has authority to try an issue and grant a relief has authority and jurisdiction to consider and dispose of all incidental questions pertaining to it. If a court has authority to decide the matter, it has authority to consider a temporary bail or parole or dealing with the custody of the accused and manner of it till the required material is collected. The Delhi High court granted bail in a security scam case on the grounds that the role assigned to the accused did not prima faces make out any grave offence maximum punishment for the offence being only 5 years no charge sheet having been submitted even after lapse of two months and no police remand was sought for however the high court imposed condition that he should not level the country and join the investigation as and when called for and his passport should be kept by the court possess jurisdiction to relapsed and accused on interim bail pending final disposal of the bail application. No hard and fast rules can be laid down in this regard. However few illustrations can be given where it would be proper to grant such release.
1. Offence of trivial nature in which bail is generally granted.
2. Women, children, minors and aged persons of 70 years or more should invariably be relapsed on interim bail.
3. Students whose examinations are to commence should also be given interim relief.
4. Cases in which accusations appear to be frivolous or male fide. But release on interim bail is no ground for grant of bail which has to be made only on merits. Once an application for bail before arrest is admitted by a court for regular, hearing it should in fitness of things grant interim bail to the petitioner so that he is not arrested in the meanwhile because other wise there is no point in entertaining and admitted his application.
5. Consideration of evidence of bail stage: It is not fore the court of the stage of bail to evaluate the evidence but merely to considered as to whether upon the material on the record one of the ways in which can be done is to consider as to whether upon the material on the record, it on the record if no further evidence is called or be found guilt or evidence is called or not. If he can be then that would be a case where reasonable grounds do exist for forming the belief required under section 497 of the code of criminal procedure and the high court would be justified in refusing bail.
6. Condition for grant of bail: While granting bail the high court should not impose such condition which would amount to denial of bail. Where there for, bail was granted by the high court to the accused on furnishing security of taka 1 lack in case or in fixed deposit in nationalized bank with due sureties residing in the state for like amount, the condition amounted to denial of bail and is liable to be set aside. The conditions should not be harsh, oppressive and virtually resulting denial of bail. Accused prosecuted for offence relating to illicit distilled liquor. He was directed to be released on bail by depositing security with one surety in addition to bail bond. While granting bail in billable offences the court has no power to impose any condition except the demanding of security with sureties. Where the accused where ordered to execute bonds with secreting and a condolences whaps also imposed that they would not enter upon the land in dispute for a particular period and that they would not commit any breach of the peace. The conditions where opposed to law and were deleted. Similarly bail can not be granted subject to the conditions that the accused shall desist from a repetitions of the offence with which be was charged.
7. Persons who may be enlarged no bail: The provisions of section 496, Cr. P.C is wide enough to cover the cases, not only of an accused person, but also of a person complained against who is present before the court, although be may not have been hauled up as an accused person. But in such cases he can not be considered to have been arrested at any stage prior or subsequent to the grant of bail. Witness: A witness arrested under a warrant and brought before a magistrate can be enlarged on bail.
8. Stage of which bail may be granted: A judge has jurisdiction to grant bail where the applicant is in the lock up under arrest and it is not necessary in order to invest the judge with such jurisdiction, that the accused person must be put up before the court. Bail can be granted at any stage of the proceedings, even after the commencement of the trail, or after his conviction when he files an appeal against it, or when he is arrested on appeal against his acquittal.
9. Reasonable ground: It was not permissible to allow bail to an accused person where reasonable grounds to belie that he was committed an offence were shown to exist. Conversely where the court was satisfied that no reasonable grounds existed to connect the accused with the liability it was free to enlarge him on bail. The actual test for grant or refusal of bail, there fore rested on availability of reasonable grounds. Reasonable grounds is an expression which connotes that the grounds be such as would appear sufficient to a reasonable man for connecting the accused with the crime with which he was charged. It such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a duper appreciation of the merits of those grounds and the evidence on which they rested which function was to be assuming at the trial stage. If is not the prima facie case against the accused but reasonable grounds for believing that he has been guilty which prohibits granting of bail. The onus is on the prosecuting to disclose those reasonable grounds.
Chapter Three
3.1 Guiding principle of granting bail
As a general rule bail should not be with held as punishment unless the facts warrant such course. Courts exercising bail jurisdiction should refrain from including in elaborate reasoning in their order in justification of grant or no grant of bail. Bail was not to be refused to accused by way of punishment and the prosecution was required to show existence of reasonable grounds and satisfactory evidence in support of offence alleged against accused and if prosecution failed to establish same then matter would become for further enquiry into the guilt of accused and bail in such circumstances should not be withheld.
While granting bail 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, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with the larger interests of the public or the state and similar other consideration.
The matters for consideration in an application for bail may be enumerated as follows:
a. Whether there is or is not a reasonable ground for believing that the applicant has committed the offence with which he is charged.
b. The nature and gravity of the charges,
c. Severity of degree of the punishment which might fall in the particular circumstance is case of a conviction,
d. The danger of the alleged offence being continued or repeated assuming that the accused is guilty of having committed that offence in the past.
e. The character and means and standing of the applicant,
f. The danger of the application absconding if the is relapsed on bail.
g. The danger of witness being tampered with,
h. Opportunity of the applicant to repaired his defense and.
i. The fact that the applicant has already been some months in jail and that the trial is not likely to conclude for several months at least.
While dealing with a bail application the high court should take in to account the various considerations such as-
i. Nature and seriousness of the offence.
ii. The character of the evidence
iii. Circumstance peculiar to the accused.
iv. a reasonable possibility of the presence of the accused not being secured at the trail;
v. Reasonable apprehension of witness being tampered with,
vi. The larger interests of the public or the state and
vii. Similar other considerations which arise when a court is asked to admit accused to bail in a non bail able offence.
Chapter Four
Application for Bail
4.1. Form and contents
An application for bail or an affidavit supporting such application should state clearly the grounds on which bail is asked for and the reasons for such grounds.
Application to high court
An application for bail to the High Court should not include defamatory allegations containing attacks on the trying magistrate or other officers irrelevant and improper in themselves. It is the duty of the defense counsel to satisfy him about the correctness of the allegations made by him in the application. It is not consistent with the responsibility of a counsel to make averments of fact in applications and partitions on information proper for the officer to receive applications in which averment o fact are made, when those of some one who says that those averments our true.
4.2. Forum for application
Where the high court ordered that bail may be granted by the magistrate after recording some evidence but the magistrate found that the charge against the accused could be only fore bail able offence he was right in admitting the accused to bail without recording any evidence. If a magistrate has jurisdiction to try an accused, he has the power to enlarge him on bail under section 497, Cr. P.C. If a Magistrate has no jurisdiction to try a case he has no power under section 497, Cr. P.C. grant bail to the person arrested. In such a case the session judge and the high court can release the arrested person on bail. A part from the provision of section 498, a court of session an accused who has been committed to it to take his trial. Section 497 deals with the powers of the trial court to grant bail while s. 498 deals with the powers of the high court and the Court of Session to grant bail. Chapter 39 excludes the existence of any additional inherent owner high court relating to the subject of bail. Section 516-17 Cr. P.C. confers no such power.
Although the jurisdiction of the superior court where two courts have concurrent jurisdiction is undoubted ordinarily and in the absence of special circumstances the superior court should not entertain a bail application without the inferior court being first moved. But this practice is not inflexible, because section 498 gives unlimited judicial discretion to the high court in the matter of granting bail. There is no hare to the high court entertaining a bail. Application directly if peculiar such special circumstance the application will not be entertained by the high court. It has been held that where the once before, it had made some remarks upon the heavier of the petitioner which would be likely to prevent the sessions judge from giving a wholly free and independent consideration to the case, there is no bar to the high court entreating a bail application direct.
Direct application to High Court
It is to be punted out that usually a petition for bail of an arrested accused in not entertainer directly by the high court and it is generally insisted that before coming to that court the accused must approach the subordinate court in the first instance. This procedure however, is subject to certain exceptions, one of which is that where an accused was arrested as a measure of preventive detention but the relevant detention order was later on rescinded of which rescission the disclosure was made only in the high court when the habeas corpus matter come up for consideration then if the accused who is surprised in this manner by the prosecution itself, files an application for being released on bail the rule of directing the accused to approach the courts below may not be insisted upon. The mere fact that the applicant had traveled all the way to the seat of the high court and has incurred expenses in engaging a counsel is no ground for entertaining an application directly in the high court.
4.3. Second application made to different judge
Where a bail application in a cases in refused by a judge of the high court and a second application is made to another judge, the latter con not go in to the merits of the case over again. He should as a rule of propriety transfer the application to the judge who heard the first application. He should not grant bail on his own. This is specially so where the earlier order is challenged as incorrect which can be done only before the Supreme Court. One judge of the high court can not sit in appeal against the judgment of another judge. Where the judge who passed order on the first application was not available and was not likely to be available for some time to come the bail petition may be heard by another judge.
4.4. Application to high court
The high court does not normally entertain direct application for bail.
4.5. Transfer of application
The transfer of a bail matter or to put it in other words the withdrawal of the sail application of the petitioner by the session judge to his own court without notice to the petitioner is certainly a matter of prejudice to the petitioner and the order would call for being set aside on this ground alone.
Chapter Five
Anticipatory Bail before Arrest
5.1. Meaning
A bail in anticipation of arrest or detention is termed as anticipatory bail. A person is entitled to be relapsed on bail. When he is arrested or is brought before a court. The judicial opinion is conflicting on the issue whether a person can apply for relapse on bail in anticipating of arrest or detention.
The Alahabad High Court held that bail can not be granted to an accused that had neither been arrested nor detained by a police nor appeared personally in court. The decision was based on the following reasons:
1. The liability of a person to arrest is no restraint. Nationally ever person is liable to arrest for anything which the person having authority to arrest consider him to have committed.
2. When a person appears in court his very physical presence resulted in his placing himself in them custody of the court. Whether the court actually orders his being taking in custody or allows him bail at once, nationally it must be held that the person was in the custody of he court and got his relapse on bail.
3. Appearing through counsel can not 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 can not be any undertaking that he would not more away from that place. The word appear in section 496 and 497, Cr. P.C. does not contemplate the appearance through counsel.
4. 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 restraint on his movement instead of any to him.
5.2. Main Conditions
The main conditions to be satisfied before exercise of jurisdiction to
allow pre-arrest bail under sec. 498 Cr. P.C are-
1. That the petitioner should physically surrender the court.
2. That on account of ulterior motives part clearly on the part of the police, there should be apprehension of harassment and under irruption humiliation by means of unjustified arrest;
3. That it should be otherwise a fit cases on merits for the purpose of bail. In this behalf the provision contained in section 497, Cr. P.C. would have to be kept in mind.
4. 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 ordinarily an application for bail before arrest should be presented to the session judge.
5.3. Conditions enumerated to grant anticipatory bail
The considerations which weight with the court while granting bail under section 497 or section 498, Cr. P.C are:
1. The nature and gravity of the circumstances in which the offence is committed.
2. The position and the status of the accused with reference to the victim and the witnesses.
3. The likelihood of the accused fleecing from justice.
4. Of repeating the offence
5. Of jeopardizing his own life being faced with a grim prospect of possible conviction in the case.
6. Of tampering with witness;
7. The history of the case as well as of his investigation; and
8. Other relevant grounds which may apply to the facts and circumstances of a particular case.
5. 4. Duration of anticipatory bail
In Gurbaksh Singh Vs. State, the court made it clear that the pertain of an order p[assed under sec. 438 (1) need not necessarily be limited in point of time, the court may if there are reasons for governed by Terrorist Areas. Anticipatory bail under sec. 438 can be granted to persons accused of offence under the Karnataka Forest Act, 1963 and apprehending arrest by the Range forest officer.
5.5.Cancellation of anticipatory bail
Anticipatory bail granted by the high court can only be cancelled 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 sliders, such and order is not an order of cancellation of the bail. Therefore, the principles no which the bail can be cancelled would not be attracted when interim anticipatory bail is canalled on hearing both side. It has been held that where an anticipatory bail is granted on giving full hearing to the public prospector and repeated attempts to have it cancelled have failed it can not be cancelled unless fess materials are placed and the conditions for cancellation of bail as provided under sec. 439 (2) are fulfilled. Rejection of bail in 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 the bail, already granted. Generally speaking the grounds for 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 true course of justice or abuse of the concession granted to be accused in any manner.
Chapter Six
Bail in case of woman aged person, sick infirm and mental disturbed person:
6.1. Woman accused
The law permits granting of bail even in a case where there are such resonate grounds for refusing bail in the case of any woman or any sick of infirm person. Accused a woman detained in judicial lock up with sucking body. Alleged confessional statement exculpatory in nature and not involving accused in commission of offence. Accused granted bail in circumstances. Even in cases where a person is accused of an offence punishable with death or imprisonment for life and there appears reasonable ground for being that he has been guilty of such offence, the court may release the accused on bail if the person is under the age of 16 years or a women or any sick or infirm person.
The case of women descries special consideration. Merely because chancre sheet has been submitted against her under section 302/109/34 penal code, she is not automatically debarred from getting bail. Under section 497 it is open to a court to grant bail to women even in cases where she is accused of an offence which is punishable with death or imprisonment of life.
But a women con not claim the benefit of the concession as provided in the first provision to sub section of section 497 Cr. P.C as a matter of right. The court must exercise its discretion on a proper appraisal of the facts and the surrounding circumstances of the case not unmindful of the fact that this concession is provided in heinous cases of murder. Grant of bail to women is not a matter of right yet interim of legislature appears to be that bail should invariably be granted to a woman unless any special circumstance exists on record to warrant refusal of bail.
A court should grant bail to a woman even when she is accused of murder. Where there was no evidence to show that woman accused has been party to conspiracy to commit murder they were enlarged on Bain. In such circumstances the existence of a suckling baby may be an additional ground in favors of grant of bail.
6.2. Age of accused
Age by itself would not be a ground for grant of bail. All the attending circumstances are to be taken into consideration. However, it must be kept in mind that prison to section 497 (1) Cr. P.C constitutes an exception invite case of heinous offence punishable with death or life imprisonment.
The accused, a boy of 12 days short of 16 years age at the time of occurrence : Case falls within provision of section 497 (1). Proviso however is discretionary. Release of the accused on bail is not possible, because he is not fit for any legal proceeding. Accused giving most serious Knife blow on back of chest thereby showing him to be a person of desperate character not entitled to bail. Where grounds existence to believe that the petitioners where not guilty of an offence punishable with death or imprisonment for life and the accused was a young man of 16/17 years old, the case was held to be covered by section 497 Cr. P.C. and bail was all wed.
A delinquent juvenile is entitled to grant of bail unless court comes to conclusion that there appeared to be reasonable ground for believing that relapse of juvenile was likely to bring him in association with known criminal or expose him to moral danger or his releases would defile elands of justice.
Accuse appeared to be a young boy and had no previous record. Ground existed for further inquiry also into guilty of accused. Accused was released no bail in circumstances.
6.3. Bail on ground of sickness
Person actually sick or infirm may be released on bail even in case of charge involving death or classes’ sentences. For grant of bail on ground of sickness it is not essential that the aliment should be of an alarming nature which may endanger the life of accused, but the initial requirement is the satisfaction of the court. Bail was sick person and was an old heart patient and had been operated for by pass surgery and was on regular medication and diet.
Accused contended that his health condition was such that he could not take strain of any nature and his remaining in jail would be detrimental to his health and life. Considering the medical certificate issued by the National Institute of Cardiovascular Disease, treatment and care of cardiac ailment of accused was not possible in jail. Accused was also entitled to grant of bail as two main accused heed already been released on bail. Petitioner accused was ordered to be relapsed on bail, in circumstances.
Accused suffering from active pulmonary tuberculosis of both lungs with multiple cavitations and advised regular treatment for a considerable period and his wife (Other Co-accused having a small suckling child to be looked after), both the accused were granted bail in these circumstances. If no medical treatment is prescribed, the bail grant is in risk.
Every sickness or infirmity can not be ground for bail. The nature and seriousness of the sickness has to be seen. Where the proper treatment of the accused is possible in jail he is not entitled to bail on the ground of Sickness. When a wife or other dependent of the accused in of the accused is suffering from a chronic disease and the trail is not start in the near future bail may be granted for a short period.
6.4. Sick and infirm:
A Sick or infirm may be released on bail even in a case of capital punishment.
Chapter Seven
Refusal, Rejection and Cancellation of Bail Refusal of Bail
7.1. Introduction
In refusing to grant bail it is generally necessary to see whether there are reasonable ground for believe that the accused has committed some offence and secondly that whether he is likely to tamper with the evidence during his enlargement ob bail.
The court is take in to consideration the gravity of the offence alleged, the heinousness of the charge, and the possibility of abscission and tampering with the witness and on the consideration prayer for bail may be refused.
While considering the qu3siton whether a case fell within the prohibition constrained in sub section of section 497, CR. P.C. the courts are not supposed to keep in view only the maximum sentence of transportation for life, provided in the relevant law.
2. Bail may be refused to an accused person: on certain grounds:
1. Where that is likelihood of the accused absconding it he is released on bail.
2. Where there is likelihood of the accused tampering with the prosecution evidence.
3. Where there are the dangers of the offence being continued or repeated if the accused is left on bail.
4. Where the character, behavior and previous conduct of the accused are such that it is desirable to leave him at large.
5. Where taking the nature and gravity of the offence, the nature of the evidence is support of the accusation and the severity of the punishment which the convicting will entail, consi9deratin, the court is of onion that he accused should not be enlarged on bail.
Rejection of Bail
Grounds of Rejection
Where the accused was released on bail but subsequently the was found abusing his bail, the Madras high court cancelled his bail relying on the illustrative grounds given in Aslam Baba Lal Desai Vs. Maharshatra which are as under.
Where the accused
1. Indulges again in similar activities,
2. Interferes with course of investigating
3. Attempts to tamper with evidence
4. Threatens witness,
5. Likelihood of his fleecing to other country,
6. Makes himself unavailable to investigation agency beyond reach of surety.
A bail was not allowed to be cancelled on the basis of certain factors of which the court granting the bail was fully aware. Where bail was granted by the then presiding judge at the initial state it could not be cancelled shoot by the successor judge after filling of the charge sheet in the case unless proper application for its cancellation was moved and a case for its cancellation was made our after hearing both the parties. Where the session judge granted anticipatory bail, the high court refused to cancel the bail as no cogent reasons or overwhelming circumstance could be shown for cancellation of the bail.
7.2. Rejection of successive bail application by High Court
Where in spite of two successive bail applications having been rejected by the high court in a number case, the magistrate granted provisional bail to the accused it was held that the course adopted by the magistrate was not only contrary to the settled principles of judicial discipline and propriety but also contrary to the statutory provisions.
7.3. Rejection of bail:
No person shall be deprived of his life and personal liberty except according to procedure established by law. Deprivation of freedom by refusal of bail is not for punitive purpose by for the bifocal interests of justice to the individual implied and society affected.
7.4. Refusal to grant bail after specified period:
A perusal of section 426 (1-A) shows that bail is to be allowed in such cases if the appeal has not been disposed of within two years, but the same could be refused fur the reasons to be recorded by the high court.
Cancellation of Bail:
1. Principle for cancellation of bail:
Where bail has been granted, its cancellation should no follow in the ordinary course. There has to be sometime in the nature of miscarriage of justice or improper excessive of discretion which alone can justify the cancellation. However, the court has the power in certain situations to cancel the bail if the facts warrant no course other than refusal to grant bail. Where victim of a murderous assault sustained as many as nine injuries including four on the head became semi unconscious at the time of medical examination and his condition became serious. The petitioners were allowed bail on the grounds that the callowness complete against them petitioners were neither bad mashers nor any apprehension was expressed that they would influence the prosecution case. Bail was not cancelled. But where the accusation was of murder assault on prosecution witness and giving him a grievous blunt weapon injury on the jaw, just missing neck but uprooting 2/3 teeth. Bail was cancelled. Where the person of declassed and was apprehended along with incriminating knife at the sport. The bail of the accused was cancelled in spite of his tender age.
2. Grounds of cancellation of bail:
The courts if it grants anticipatory bail must expressly make it a condition that if the petitioner commits any breach of the terms of bail, the court concerned will be at liberty to cancel his bail and take him into custody. If has been emphasized that very cogent and overwhelming circumstance are necessary for an order seeking cancellation of the bail. Even where prima facie case is established the approach of the court is not that the accused should be detained by way of punishment, but whether presented of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favor by tampering with evidence. Bail may be cancelled on the following grounds.
1. When the person on bail commits the very offence or other offence for which he is being tried or has been convicted.
2. When it is found that the accused is tampering with investigation.
3. When the accused is found tampering with evidence.
4. When the accused is found absconding or having gone out of control of sureties.
5. When it is alleged that the accused is terrorizing the witness and committed acts of violence against the police.
6. When it is found that the subsequent events make our non-bail able offence or a graver offence.
7. When the high court found that there was a wrong exercise of judicial discretion to grant the accused bail.
8. When the circumstances were proved that the accused has misused the liberty granted to him it is sufficient ground to cancel bail.
Where once pre-arrest bail is granted to accuse very strong reasons and grounds would be require for cancellation of the same.
3. Cancellation of bail on ground of suppression of material fact
Where an accused obtains an order of bail in his favor by misrepresenting true facts and in fact by playing fraud upon and an order for bail is bound to be recalled. It appears in consideration of the materials on record that the accused person played a fraud upon the session’s judge by suppressing the fact that earlier their application under section 498 Cr. P.C was rejected by this court after hearing the parties at length. As it was not pressed the rafter in order to prevent the court from passing a harsh order it is accordingly directed in the interest of justice and for ends of justice that the session judge. Shall take appropriate action accord to law against the accused persons and pass an order for their arrest immediately.
Consequences of cancellation of bail
The cancellation of pre-arrest bail by the court, of an accused person who was not in custody and was admitted to interim bail, did not entail the consequence that he had to be ordered to be given into police custody. It was emphasized by the Supreme Court that proper order to pass in those circumstances was to cancel ad-interim bail and to leave the accused person to be death with by the police, as they thought fit.
Chapter Eight
Bail Bond, Sureties and Forfeiture of Bail Bond
8.1. Bail Bond
According section 499, Cr. P. C lays down that
1. Before any person is released on bail or released on his own bond, a boned for such sum of money as the police officer 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 officer or court, as the case 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, court of sessions or other court to answer the charge.
8.2. Bond without sureties
Where a person accused of a bail able offence holds ha high position in government service he should be released on a personal bond without sureties instead of bail.
8.3. Conditions in bail bond
The court can grant bail on the condition that the person shall attend at the time and place mentioned in the bail and that would cover nonattendance before the police but it does not over such conditions as have been imposed in criminal cases, station twice daily in the morning and in the evening to give hajira before the police officer. A conditions that the accused will not deliver any speech until the disposal of the case under section 124-A, penal code pending against him, or that the accused should not reside within the limits of a certain town for a certain town for a certain period or that they should not can act any drama is beyond the jurisdiction of the magistrate. The court can not incorporate in the bail bond a condition that the accused should desist from repletion’s of the offence charge. Similarly the court can not put any restrictions on his movements. When the accused, though granted bail, is ordered to be sent to an institution and live there under the order of the court, and is not released within the meaning of this section.
8.4. Security
Section 499 Cr. P.C contemplates the execution for a bond with sureties and not a cash deposit. A Magistrate has no power to require an accused person to deposit a sum of money in court as surety for haws attendance in court at a given time. However, section 513, Cr. P. Code was canceled in the interest of the person who, because they may be strangers in the locality position to arrange for bail or able to offer sureties. In the case of these person if they offer a cash deposit the court is abode in its discretion to accept that deposit in lieu of a bond but neither section 499 nor S. 513 of the code conditions any thing which authorities a Magistrate of his own accord to insist on the deposit of a sum of money as security in the place of a bond. It is an enabling provision and provides that except in cases of bonds for good behavior, a court or officer taking bond may in fit cases, relieve a person of his obligation to execute a bond, and in lieu there of take cash deposits. The deepest under this section is in lieu not only of the bond to be executed by the principal but also of the bond to be executed by the sureties.
8.5. Fitness of surety
The court has to verify the solvency of the surety and the fitness of surety before accepting the same. A particular person may be solvent but he may not be a fit person to stand as surety. Such determinations being a judicial function in necessarily implied that the verification should be based upon proper inquire and there should be some material on record to justify a finding of this nature.
8.6. Forfeiture of bond
Under section 514, CR. P. C it is for the court to determine whether the conditions of a bond have been broken and the bond is forfeited. The provision being of penal nature has to be strictly construed. A perusal of the provision of this section shows that three stages are co planted for a proceeding under the section. Firstly, a declaration of forfeiture, Secondly, the order for payment or to show cause, and thirdly, steps to be taken for the recovery of the amount. The declaration of forfeiture must be proved upon cogent grinds establishing to the satisfaction of the court that the forfeiture has taken place.
Advantages and Disadvantages about Bail:
Advantages for the Defendant:
The advantages of bail for the defendant are quite easy to understand. It allows them the right to remain free until the end of the trial period, which if they are innocent means they haven’t had to endure any unwarranted jail time, and if they are guilty gives them that last few weeks, sometimes months with their friends and family before facing their punishment. During the time of a trial it is extremely stressful and being imprisoned during it can make the experience ten times worse and make meetings with lawyers a lot harder, jeopardizing the case.
Disadvantages for the Defendant:
That being said there are some major financial disadvantages for the defendant, which if innocent proves an unwanted, unneeded and unjust waste of money. And if guilty may cause financial ruin to loved ones who just wanted to help.
It is often criticized but in the US, during the trial period the court sets a bail amount in relation to the crime, of which the defendant can pay in order to remain free as long as they attend all the court hearings. (Obviously if they are then found guilty they go to jail). In order to pay such a fee the defendant or often the defendant’s friends or family visit a bail bond agency, who are more than happy to pay the bail for a 10% (sometimes more) non refundable fee? As long as the defendant attends all court related dates the agency gets the bond repaid, yet still keeps that original fee for their services. The main problem with this, other than profiting off somebody’s poor life decisions (or somebody totally innocent), is the fact that if the defendant skips bail the agency may repossess their home and other assets to cover the bail. If the arrangement was sorted out by a loved one then the debt could fall on to them, when all they may have been doing is trying to help. No mother wants to see their son a criminal.
Advantages for the State:
Allowing a defendant to be released on bail, although maybe risky cuts the funding needed to detain them. Prisoners have to fed and looked after, which isn’t free. Ok the cost of one person isn’t a lot but with thousands of people brought in each week it can cut a considerable amount of expenses.
Although a rather cynical view, if the bail amount isn’t enough to scare the victim in to showing up in court then the state gets to keeps the amount which was paid by the defendants bail agency leaving the debt with them.
Disadvantages for the State:
The major disadvantage that the state might face when granting bail is that the accused may never come back, may run away even from the country. Although they get paid the bail amount there may be a dangerous criminal on release. In the long run this may also waste government spending trying to track down the individual. Some people feel it would be safer to keep every such accused detained.
Chapter Nine
9.1 Findings and Problems
1. Though bail is a privilege for the accused, there is always chance to abuse it.
2. Sometimes person on bail don’t attend in the court accordingly.
3. The accused on bail may destroy the evidence or may make an undue influence on the opposition or plaintiff or witnesses.
4. As being a developing country its really not possible for our law enforcing authority to keep an eye on that person on bail. So that person can escape even from the country and put the whole effort to gain justice in vain.
5. In case of arbitrary arrest or detention the detainee gets less help from the respective authority in this regard.
Chapter-Ten
10.1 Conclusion
The foregoing discussions reveal that in Bangladesh perspective it bail is practiced as considerable issue. But it should be practiced on the basis of merit. In other countries until judgment is pronounced accursed are free from custody. The concept of bail emerges from the conflict ‘between the ‘police power’ and to restrict the liberty of a man who is alleged to have committed a crime and the presumption of innocence in his favor. ‘Bail’ is derived from the old French verb ‘bailer’ meaning to ‘give or deliver’. Bail in English Common law is the freeing or setting at liberty a person arrested or imprisoned on security or on surety being taken for his appearance on certain day and a place named. In other words, bail is the delivery of arrested person to his sureties upon their giving security for his appearance at a designated place and time, to the jurisdiction and judgment of the court. The surety is termed ‘bail’ because the person arrested or imprisoned is placed in the custody of those (surety) who bind themselves or become bailer for his due appearance when required. Surety must be those persons who have authority to bail the arrested person to appear before the court on a certain date. It is upon the bonds of those sureties that the person arrested or imprisoned is bailed, i.e., set at liberty until die day appoint