The object of bail is to secure by a pecuniary penalty, the appearance of the accused at his trial. Once an accused person is produced in court, whether under a warrant of arrest or a summons, he is thereafter under the jurisdiction of the court. The court is empowered to ensure his future attendance. In order to give effect to this, the accused is ordered to provide security in the form of bail.
An accused person is presumed innocent until his guilt is proved and depending on the nature of the offence is entitled to pre-trial liberty. Nonetheless, the court has to balance the interests of the State in having to protect the public. Therefore, the exercise of judicial discretion in determining whether to grant bail and thereafter the appropriate bail quantum would always involve a careful and analytical process. This process must be based on consideration of all available information produced before the court. The principles and general bail quanta listed below are intended to provide guidance in the exercise of this discretion and in setting the amount of bail in relation to offences which are frequently prosecuted in the courts.
It is settled law that bail should not be punitive but set at a sum that is sufficient in the circumstances of the case to procure the attendance of the accused at his trial. Currently offences are classified into “bailable” and “nonbailable” offences under the Criminal Procedure Code i.e. whether the offence is bailable as of right or not. An accused person charged for a bailable offence is entitled to bail. Where an accused person is arrested or detained for a non-bailable offence, his release is at the discretion of the police or the courts. However he shall not be released if there are reasonable grounds for believing that he is guilty of committing an offence punishable with death or life imprisonment.
Importance of Bail
“Bail is important because it affects the liberty of the subject…it is the only example in peacetime where a man can be kept in confinemet for an appreciable period of time without a proper sentence following on conviction after a proper trail . It is therefore the solitary exception to magna Carta”
At every stage of the often slow progress from arrest to trial and sentence, someone must decide whether the accused will be allowed to continue his normal life while awaiting the next step or whether he must be held in custody. Every decision involves balancing the right to liberty of someone who is legally presumed to be innocent against the need of society to ensure that accused people are brought to trail. The test to govern the discretion of the court of an application for bail has been started as far back as 1854 as being the probability of the accused appearing to take his trail.
Concept of Bail
The bail as defined in Black’s Law Dictionary is “A security required by a court, for the release of prisoners.” It is the transfer of accused from judicial custody to the sureties. With the British Colonial judicial setup in Sub-continent, the criminal law was introduced with the concept of bail. In the Code of Criminal Procedure, 1898 deals with the grant of conditional bail and sureties. There is only one condition where the accused can be released without the surety and this power of releasing an accused on personal bond is only conferred on the officer In-charge of the police station or Investigation Officer under section 169 of The Code of Criminal Procedure, 1898.
The category of Bail
The question of grant of bail is to be determined judiciously, having regard to the facts and circumstances of each case. Where the prosecution satisfies the court that the accused has committed a crime falling in this category, the court must refuse bail. On the contrary, where the court has reasonable grounds to believe that the accused in not guilty of any offence it may grant bail at any stage of trial. The offences falling in the 2nd category include those which have punishment other than those mentioned in the offences of 1st category. The grant of bail in this subdivision is a rule and refusal an exception. So, the bail will be refused only in extra ordinary cases, for example:-
i where, there is likelihood of absconding of accused.
ii Apprehension of accused tampering with the evidence.
iii Accused is a previous convict.
Philosophy Underlying The Granting OF Bail
The granting of bail allows a defendant who has been charged with a criminal offence to be released from custody until he or she stands trial. Underlying the availability of bail is that, until a person has been tried and convicted by a court, they are presumed to be innocent unless the prosecution proves otherwise beyond a reasonable doubt. Thus, a grant of bail, allowing the defendant to go free until their trial, respects that defendant’s right to liberty as a free individual. However, in order for a determination to be made regarding a defendant’s guilt, the defendant must be available to stand trial and allow the prosecution to make their case. Hence, the criminal justice system needs to ensure that the defendant will be available and, often, the only way to ensure this is to hold a defendant in custody until they can stand trial. It is also necessary to ensure that, if the defendant is guilty of the offence, they can be punished accordingly. This requires that the defendant can be brought before a court to have that punishment determined. If a defendant has been accused of a criminal offence, there is a need to be able to bring that defendant before the court to have the matter heard: to ensure a just and fair trial for the defendant. However, if the defendant has not been convicted of any offence, to hold the defendant in custody could be seen as an unjust deprivation of their liberty. The preparing of their case also becomes more difficult. They have limited access to their legal representative and limited time to prepare for their trial. The defendant is separated from their support network and, consequently, their resolve to put up their best defence may weaken. In addition, where an adult defendant is not granted bail, they are remanded into custody and can be kept in the police watch houses, lockups and prisons until their trial. This stay on remand may be lengthy, loosening the defendant’s ties with his/her family, community and employment and further weakening their resolve. It is especially important that these ties are maintained because they become considerations in the sentencing process, where “the greater a defendant’s individual and community responsibilities, the greater the pressure on judicial officers not to impose a jail sentence”. Therefore, the bail process is designed to ensure that a balance between the rights of the individual and the efficacy of the criminal justice system is achieved. However, in recent times, the desire to protect the community, and to acknowledge the effect of crime on the victim, has become a significant issue in determining the question of granting a defendant bail. This desire is particularly focused on ensuring that a defendant does not commit a further offence while on bail or interfere with any potential witnesses or victims. For a victim, especially where the crime was of a violent nature, the release of a defendant on bail can be a traumatic event. They may fear retribution or intimidation from the defendant and that the system has failed to consider their plight while respecting the rights of the defendant. These are additional matters that are necessary to consider when developing any reform in this area.
Application by an accuse for bail
An accused is not allowed to leave the country whilst he is on bail unless he has obtained the court’s permission to do so. Such applications are often made before the trial, at adjournments during the trial, and even after conviction of the accused.
Once an accused person has been charged in court, the risk that he may abscond is apparent. This risk increases after he has been convicted. In determining whether to grant an application to leave the jurisdiction, the court will require good reasons why he ought to be allowed to do so. Before permission to leave the jurisdiction is granted, the court must ascertain from the surety whether there is any objection to the application. In addition, bail will usually be increased. If the existing surety objects to the application, the accused should find a new surety who is prepared to consent to the application and who will undertake the original bail as well as any additional bail imposed.
Appeal for Bail
An accused, after his conviction at a trial, may appeal against the conviction on grounds of fact or law. He may also appeal against the sentence. An accused who has pleaded guilty may only appeal against sentence imposed on grounds that it is manifestly excessive. Once an appeal is filed, the accused (now the appellant) may apply for bail pending appeal. Once an application or appeal is commenced, the responsible officer at the Criminal Appeal Office will be available to assist with any queries on practice or procedure.
Why Bail Should Be Granted
It must, however, be remembered that the principles for refusing or granting bail can by no means be confined in a straitjacket and must be determined by the Court by the application of judicial wisdom in each particular case taking into consideration the prevailing social condition and environment, law and order situation, index of crime, etc. The law relating to bail provided in the Code of Criminal Procedure, 1898, is full of checks and balances and is, to our view, adequate to meet the prevailing situation. The provisions regarding the grant of bail to an accused charged with a non-bailable offence are sufficiently stringent and in addition, the Law Commission has already proposed certain amendments to the relevant sections of the Code of Criminal Procedure, 1898 relating to bail in order to make the law more stringent in cases of applications for bail by previously convicted accused persons and accused persons charged with grave offences. Moreover, the provisions relating ton regarding certain types of serious offences for trial of which special laws have been enacted, are even more stringent and very strict. Under the above circumstances, there is no reason for limiting the scope for bail any further. So far as the ouster of jurisdiction of the Courts from considering applications for bail (in cases of identified criminals) may be mentioned that the question of bail is essentially a question for judicial determination, interpretation of law along with application thereof and judicial discretion. The Code of Criminal Procedure, 1898, empowers even police officers who are executive officers to grant or refuse bail in certain circumstances but the ultimate arbiter in this matter is and should be, the Court, because, as has already been observed above, it requires use of judicial discretion. Moreover, the question whether a person facing trial should be released or kept in custody during trial is a part of the judicial proceeding in which the trial is held and cannot, therefore, be dealt with by any machinery other than the judicial machinery. Clause (3) of Article 35 of the Constitution mandates categorically that a person accused of a criminal offence shall have the right to a “public trial by an independent and impartial court or tribunal.” Various international human rights instruments also reiterate the same principles. Bangladesh is a party to some of these instruments. Bail being a part of a judicial proceeding, the ouster of the jurisdiction of the Court there from is, therefore, likely to militate against our Constitution and various international human rights instruments. We cannot probably afford to do it. Moreover, it is difficult to appreciate the purport of this paragraph of the reference, because, we are not aware of any quasi-judicial authority made under any law which is vested with the authority of identifying any accused as a criminal. The determination of accusation is done in a trial and before that the determination or identification of an accused during investigation and/or inquiry is only tentative in nature. Therefore, it will be against the norms of fair justice to exclude the Court’s power to consider a prayer for bail merely because there is a tentative determination of accusation against any person. But the more important reason is, as we have already said, that there is no quasi-judicial authority to identify an accused before trial and, at any rate, the reference does not speak of any such authority. We are, therefore, of the opinion that the Courts’ jurisdiction to deal with matters of bail cannot and should not be, ousted. In the Code of Criminal Procedure, 1898 offences are already classified as cognizable and non-cognizable for the purpose of arresting an offender without a warrant or under a warrant. Similarly, for the purpose of considering the question of bail offences have been classified, according to the gravity thereof, as bailable and non-bailable and the principles to be followed in considering the question of bail have been laid down therein and in series of decisions of the superior Courts and have also been left to the judicial discretion of the Courts. Moreover, in order to deal with the question of bail in cases of certain serious and grave offences bail has been classified as “not to be granted” unless certain conditions are fulfilled. Under this circumstance, there should not be the problems (referred to in the first paragraph of the reference) which cannot be solved under the existing provisions for bail if all relevant and necessary materials are produced before the Court by the Prosecution and by proper exercise of judicial discretion on the basis of such materials, the over-all social conditions and the prevailing law.
National Judicial Policy and grant of bail
National Judicial Policy 2009 and grant of bail The judicial policy tells that in bail matters, notice to State for production of record shall not exceed beyond 3 days and bail applications under section 497 of Cr.P.C. shall be decided not beyond a period of 3 days by the Magistrate, 5 days by Court of Sessions and 7 days by the High Court. No such period has been specified in the statute but the National Judicial Policy Making Commission has recommended the bail application to be disposed of in the prescribed period but the pressure of disposing a bail application in prescribed period might lead to miscarriage of justice.
Cancellation of bail
Cancellation of bail Bail once allowed can be cancelled as well. The consideration for grant of bail and cancellation of bail are altogether different. Once the bail is granted by a court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof.10 To deprive a person of post arrest bail is the most serious step to be taken. The National Judicial Policy 2009 lays down that application for cancellation of bail under Sub-section (5) of section 497 Cr.P.C. should be decided within 15 days by the courts including High Court.
British Law on Bail
The Bail Act, 1976 governs the law of bail and conditional bond in British Law. It lays down the following conditions when bail can be refused; defendant charged with High treason; security of the defendant; custodial sentence for another offence; absconder in the present proceedings; where the defendant has been convicted but the court is awaiting a pre-sentence report; where the defendant has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail; where the accused has previous convictions for certain homicide or sexual offences. The Criminal Justice Act 2003 amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.
US Law on Bail
It has been laid down in United States Bill of Rights in Amendment VIII that Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted the national law provides in 18 USC 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.
To conclude, it can be said that bail endows its significance in diverse spectrum. Law does not want accused to suffer before allegation is proved. The grant of bail even in grave offences can be sought during the pendency of appeal in High Courts or the Supreme Court. So, to prevent abuse of process of law, minimize the burden from the jails and prisons, it is better to admit the accused on bail with the sureties to present him before the court, when required. So the bail can be granted in case of an appeal preferred under the code of criminal procedure, 1898 before the high court division.
- 1. Queensland Law Reform Commission, To bail or not to bail – a review of Queensland’s bail law: Discussion Paper No 35, Brisbane, March 1991, p 1. Available at : http://www.qlrc.qld.gov.au/reports/r25.pdfAccessed on : 15 July,2012
- 2. QLRC, The Bail Act 1980: Report No 43, p 4. Available at : http://www.qlrc.qld.gov.au/reports/r25.pdfAccessed on : 15.07.2012
- 3. Criminal Justice Commission, Reports on Aboriginal Witnesses and Police Watchhouses:Status of Recommendations, Brisbane, November 1997, available at : http://www.cjc.qld.gov.au, p 25. Accessed on 16.07.2012
- 4. Bangladesh signed the International Covenant on Civil and Political Rights, which contains identical principles. Accessed on 16-072012
- 5. Bail and The Human Right Act available at : http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/researchBulletins/rb0100kc.pdf accessed on : 18.07.2012
- 6. Schedule A Criminal Procedure Code (Cap 68) available at: http://www.lawcommissionbangladesh.org/reports/45.pdf Accessed on : 19.07.2012
- 7. Section 352 CPC available at : http://www.lawcommissionbangladesh.org/reports/45.pdf Accessed on : 19.07.2012
- 8. Report of the Law Commission on the Law of Arrest, Detention in the Custody of the Police and Bail dated 15.07.2002 available at : http://www.lawcommissionbangladesh.org/reports/45.pdf
- 9. Section 32, Special Powers Act, 1974 and section 19, bvix I wkï wbh©vZb `gb AvBb, 2000. Accessed on : 16-07-2012
- 10. Section 496, 497 and 498, Code of Criminal Procedure 1898. Available at : http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75 Accessed on : 19.07.2012
- 11. Article 35 (3), Constitution of the People’s Republic of Bangladesh. Available at : http://app.subcourts.gov.sg/Data/Files/File/BailGuidelines.pdf Accessed on : 17.07.2012
- 12. Article 14, International Covenant on Civil and Political Rights. Available at : http://app.subcourts.gov.sg/Data/Files/File/BailGuidelines.pdf Accessed on 17.07.2012
- 13. Article available at : http://www.thedailystar.net/law/2011/01/03/judgment.html
- 14. The code of criminal procedure 1898 available at : http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75 Accessed on : 18.07.2012
- 15. Bail In Criminal Proceedings available at : http://www.scribd.com/doc/56591550/Code-of-Criminal-Procedure-1898-CrPC
- 16. Release on Conditional Bond available at : http://pakistanilaws.wordpress.com/2012/05/04/bail-law-in-pakistan-uk-and-usa/ Accessed on : 20.07.2012
- 17. available at : http://www.cps.gov.uk/legal/a_to_c/bail/ Accessed on : 20.07.2012
 Schedule A Criminal Procedure Code (Cap 68)
 Section 352 CPC
 Queensland Law Reform Commission, To bail or not to bail – a review of Queensland’s bail
law: Discussion Paper No 35, Brisbane, March 1991, p 1.
 QLRC, The Bail Act 1980: Report No 43, p 4.
 Criminal Justice Commission, Reports on Aboriginal Witnesses and Police Watchhouses:
Status of Recommendations, Brisbane, November 1997, http://www.cjc.qld.gov.au, p 25.
Queensland Law Reform Commission, To bail or not to bail, p 1.
 Report of the Law Commission on the Law of Arrest, Detention in the Custody of the Police and Bail dated
 Section 32, Special Powers Act, 1974 and section 19, bvix I wkï wbh©vZb `gb AvBb, 2000.
 Section 496, 497 and 498, Code of Criminal Procedure 1898.
 Article 35 (3), Constitution of the People’s Republic of Bangladesh.
 Article 14, International Covenant on Civil and Political Rights
 Bangladesh signed the International Covenant on Civil and Political Rights, which contains identical
 Bangladesh signed the International Covenant on Civil and Political Rights, which contains identical