Explore the bailment process. What are the ways they can be misused?

Topic: Explore the bailment process. What are the ways they can be misused?

1.0 Introduction

This purpose of this research paper is to explore into the concept of bailment and ways in which it is being misused.

In order to accomplish that, the following topics are going to be discussed sequentially throughout the paper: meaning of bail, the bailable and non bailable offences, the guiding principles of granting bail, in what cases bail is to be taken, in what cases bail may be taken in case of non-bailable offence, the principle for refusal, rejection and cancellation of bail and how sometimes bailment process is taken advantage of.

2.1 Meaning of Bail

The Oxford Dictionary defines ‘bail’ as security for the appearance of prisoner on giving which the accused is released pending trial[1]. The word ‘bail’ is derived from the old French verb ‘bailier’ which means to ‘give’ or ‘deliver’[2]. In the Judicial Dictionary ‘bail’ is defined as follows: “Bail is when a man is taken or arrested for felony, suspension to felony, indicated of felony, or any such case, so that he is restrained for his libery. And being by law bailable, offering surety to those which have authority to bail him, which sureties are bound for him to the king’s use in a certain sum of money, or body for body, that he shall appear before the Justice of Gaoledelivery at the next sessions, etc. Then upon the bounds of those secureites, as is aforesaid, he is bailed, that is to say, set a liberty until the day appointed for his appearance.” In a civil matter, the term ‘bail’ applies to those persons who become sureties or bind themselves either to satify the plaintif in respect of his debt or costs or to surrender the defendent into custody if the judgement is against him and he fails to satisfy it[3]. The basic conception of the word “Bail” is release of a person from the custody of police and delivery into the hands of sureites who undertake to produce him in court whenver required to do so[4].

2.2 Bailable and Non-bailable Offences

Criminal procedure code has under s.4(b) categorized offences as bailable and non-bailable. The offences under each of the heads have been specified in the Schedule to the code.

A.     Bailable Offences: Section 496 of Criminal Code of Procedure provides that in the case of bailable offences the person accused has an indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necssary. The provisions of the section are mandatory, and the court or officer in charge of the police station is bound to release the person in custody who is accused of a bailable offence, on bail, provided he is prepared to give it, or on recognisances[5]. However, section 496 will not apply when an accused person is convicted of an offence[6].

B.     Non-bailable Offences: In the case of a non-bailable offence, a court may, while granting bail to the accused, impose conditions other than fixing of bail for the attendance of the accused, and such conditions will not be illegal.[7]

2.3 Guiding principles of granting a bail

As a general rule bail should be withheld as punishment unless teh facts warrant such course. The matters of consideration in an application for bail may be enumerated as follows:

a.       Wheteher there is or is not a reasonable ground for believing that the applicat has committed the offence with which he is charged;

b.      The nature and gravity of the charge;

c.       Severityof degree of the punishment which might fall in the particular circumstances in case of a conviction;

d.      The danger of the applicant’s absconding if he is released on bail

e.       The character and means and standing of the applicant;

f.        The danger of the alleged offence being continued or repeated, assuming that the accused is guilty of having committed that offence in the past;

g.       The danger of witness being tampered with;

h.       Opportunity of the applicant to prepare his defence; 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.[8]

2.4 In What Cases Bail Is to Be Taken

Section 496: In what cases bail is to be taken: When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or apperas or is brought before a court, and is prepared at any time while the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail; provided that such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his apperance as hereinafter provided:

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

Explanation: Where a person who is arrrested is not accused of a non-bailable offence, no needless impediments should be placed in the way of his being admitted to bail.[9] The section is imperative, and under its provisions theMagistrate is bound to release the person on bail or recognizance. But bail means release of a person from legal custody; it presupposes that he is in custody. Person who is under no such restraint cannot be granted bail.[10] The grant of bail to a person accused of a non-bailable offence is discretionary and the person released on bail may again be arrested and remanded to custody by an order of the court granting the bail.[11] But a person accused of a bailable ofence is treated differently. He has a right to be released on bail and onl the High Court Division has the power to casue him to be arrested and remanded to custody in bailable offences. There is no question in granting bail as the words of the section are imperative.

2.5 In What Cases Bail May be Taken in Case of Non-Bailable Offence

Section 497. When bail may be taken in case of non-bailable offence:

1.      When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police-station, or appears or is brought before a court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.[12]

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

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

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

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

Explanation:  The main points for consideration in the application for bail are:

a.       Whether there is any likelihood of the accused absconding;

b.      Whether there is any likelihood of the accused tempering with the evidence by threatening the witnesses.[13]

Bail in non-bailable cases is a matter within the discretion of the courts, which has to be exercised with due care and caution on the facts and circumstances of each case. In the case of non-bailable offences, which are not punishable with death or imprisonment for life, grant of bail should be the rule and the refusal thereof should be an exception that rule.[14]

2.6 The Principle for Refusal, Rejection and Cancellation of Bail

Bail may be refused to an accused person on certain ground:

1.      Where there is likelihood of the accused absconding if he is released on bail;

2.      Where there is likelihood of the accused tampering with prosecution evidence;

3.      Where there is the danger 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 undesirable to leave him at large.

5.      Where, talking 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 conviction will entail, into consideration, the court is of opinion that the accused should not be enlarged on bail.

Bail may be rejected on the grounds where the accused:

1.      Indulges again in similar activities,

2.      Interferes with course of investigation,

3.      Attempts to tamper with evidence,

4.      Threatens witnesses,

5.      Likelihood of his fleeing to other country,

6.      Makes himself unavailable to investigation agency beyond reach of surety.

Bail may be cancelled in the following five cases[15]:

1.      Where the person on bail during the period of bail commits the very same offence for which he being tried or has been convicted,

2.      If he hampers the investigation,

3.      If he tempers with the evidence,

4.      If he runs away to a foreign country, or goes underground or beyond the control of his sureties and

5.      If he commits acts of violence in revenge.[16]

2.7 In What Ways Bail is Misused

There many ways in which the bailment process can be taken advantage of, and often they are adopted. Among them a few have been listed below:

a.       When a crime has been committed, if the police fail to file the charge sheet within 120 days. During the bailment process, the accused can state this delay and under the act 167 (5) this bail is granted even when the case in non-bailable.

b.      When the majority of the witnesses have given their testimony, and investigation process has already taken over 365 days, and they have not mentioned the name of a certain accused, then under act 349 C (4) the accused can be granted bail no matter how serious the offence is under the act. Using this, the real criminal might take advantage of bail.

c.       The accused has his name filed in the F.I.R. but under the 161 act, the witnesses have given testimony and his name has not come up, then even if he is accused of committing a non-bailable case he has to be granted bail.

d.      When the other accused of the same crime have given their testimony under the 164 act and the name of another accused person has not come up, then he is granted bail.

3.0 Conclusion

In conclusion, bail is an important part of the legal system. Throughout this research I have gone over the major aspects of the bailment process and mentioned a few of the ways they can be misused. I have tried to explain briefly the meaning of bail, different categories of offences, when bail can be taken and when it can not be taken.


1.      Daniel Greenberg (2009), Stroud’s Judicial Dictionary of Words and Phrases, 7th Edition, Mainwork & Supplement.

2.      Oxford’s English Dictionary (2007).

3.      Webster’s Englilsh Dictionary (2008).

4.      Zahirul Haq (1980), Law and Practice of Criminal Procedure, The code of criminal procedure, Banglabazar, Dhaka.

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[1] see The Concise Oxford Dicionary.

[2] see Webster’s New International Dictionary.

[3] Bail is a matter of procedural 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; the view that no procedure can be adopted, however reasonable and report it may be, unless there is an express provisions sanctioning it in the Criminal Procedure Code, is hardly correct and the correct principle is that in matters of procedure, a particular procedure should be permitted if it is not prohibited.

[4] See Siddiqur Rahman Miah, “Law on Bail”, Meaning of Bail, p29.

[5] The seriousness of the offence is insignificant for the purpose of the bail, as long as the offence is bailable.

[6] There is no general rule that a person convicted of a bailable offenceis entitled as of right to be enlarged on bail during the pendencey of his appeal against conviction. Bail is always in the discretin of the court and the discretion has of necessity to be exercised upon the facts and circumstances of each case according to sound judicial principles.

[7] An order imposing a condition that the accused should confine their movements to the municipal limits of hte town as long as the Sessions case was pending and report themselves twice a day to the police station was held not to be illegal. Where a Magistrate while releasing the accused on bail stated that besides executing the bond with sureties their release was subject to a condition that the accused would not enter upon the land in dispute for a particular period and that the accused would not enter upon the land in dispute for a particular period and that they would not commit any breach of peace; it was held that the conditions were repugnant to this section and should be deleted.

[8] While dealing with a bail application the High Court should take into account the various considerations, such as: nature and seriousness of the oofence; he character of the evidence; circumstances peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interests of the public or the state; and similar other considerations which arise when a court is asked to admit accussed to bail in a non-bailable offence.

[9] In such cases the man is ordinarily to be at aliberty, and it is only if he is unable to manage moderate security, if any, as is required of him, as is suitable for the purpose of securing his appearance before a court pending inquiry, that he should remain in detention.

[10] The fundamental principle in our system of justice is that a person should be deprived of his liberty except for a distinct brand of law. If there is no substantial risk of the accused escaping from justice, there is no reason why he should be imprisoned during the period of his trial.

[11] The court of session and high court division may release any person on bail and by a subsequent order cause him to be arrested and remanded into custody.

[12] Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be realeased on bail.

[13] It is the duty of the court to see that both sides are not hampered. The court must see that the Government does not get a free hand, the accused are not looked up or are hampered in the defense simply on the ground that it is alleged or feared that they will temper with the evidence. It is important to note that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or imprisonment for life, unless reasonable ground appears to exist to disclose their complicity.

[14] A person under the age of sixteen years, a woman, a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of a non-bailable offence, he can be immediately released on bail pending further inquiry.

[15] See Zahirul Haq, Law and Practice of Criminal Procedure, The code of criminal procedure, p. 800.

[16] Where bail has been granted, its cancellation should not follow in the ordinary course. There has to be something in the nature of miscarriage of justice or improper exercise of discretion which alone can justify the cancellation.