Mirza Mohammad Rifat.:What is Bail under criminal jurisprudence.

Introduction.

                 Bail is very important brance of criminal jurisprudence.The question of bail arises when a person is taken in to custody.Section 496-502 of the CrPc gives a complete guide line to the courts as well as police officers of the question of bail.  

What is Bail

Bail is the release of a arrested person from the custody of police upon givening security and delivery in to the hend of sureties, who undertakes to produce him to appear in the court at a specified time and place.

Object Of Bail.

                        

The  object of keeping an accused person in detention during trial is not an punishment.Bail served the purpose of presumption of innocence  and at the same time by imposing condition like appearance in the court  also served the purpose prima facie assumption of guilty against the accused.There are various purpose.

1.     Appearence before a court.

2.     For presenting appeal.

3.     For pending reference or revision.

4.     For the purpose of givening evidence etc.

Stages of a Bail Petition.

        

Application for bail can be made at first appearance of the accused before the Magistrate court. As per Article 35 of the Constitution every person arrested must be produce before the   Magistrate within 24 hours of his arrest. Once he is brought before the Magistrate, he has the right to apply for bail.

Conditions For Granting Bail.

A court or police officer may  grant bail and shall consider the conditions for the release of a person on bail.

  

   (1)  Appear at all times required until full and final disposition of the case.

   (2) Obey all further orders of the bail authority.

   (3)  Give written notice to the bail authority if  any change of address within 48 hours of the date of the change.

   (4) Not to  interfere with  the witnesses or other  activities of  the course of justice in relation this case.

    (5) Refrain from committing any further criminal conduct against the victim.

Comment

If the bail authority determines that the defendant poses a threat of danger to the victim, then the bail authority  impose  additional conditions of bail. And If a defendant fails to comply with any of the conditions of the bail then the bail may be modified or revoked.

Grounds For Refusal Of Bail.

1.Where the person arrested and charged with murder or attempt to murder,bail should not be allowed (Naranji Premij 29cr LJ 901)

   

      2. Where it prepumed that, the accused person punished with long term  imprisonment  should not release by bail.

3.Where the person arrested of non-bailable offence should not release by bail ( Bashiram 26cr LJ 4).

4.If the court consider that there are reasonable grounds for beliving that the accused is guilty ( Jamini Mullick 36 Cal 174).

5.Circumstances which desentitle an accused to gat bail.

6.If the arrested person fails to furnishes the required security.

7.The person seeking bail must surrender and appear before the court when the application for bail is being heard,other wise bail application may be refused [14 DLR (SC)321].

Cancalation of Bail.

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

   2. If  fail to surrender himself  into custody in answer to their bail.

3. Interfere with witnesses or otherwise obstruct the course of justice.

4. If he tempers with the evidence.

5. If he hampers the invistigation.

6. If he runs away to a foreign country or goes beyond the controle

of his sureties.

  

   7.If he commit acts of violence in revenge ( Bachhu Lal cr LJ 1505).

Bail during inquiry and investigation.

Bail by Police

A officer in charge of  police station is bound to grant bail in bail able offence.The police cannot refuse to release the accused on bail unless they consider it necessary in serious cases. If there are no grounds for refusal of bail, the accused has a right to be granted bail. e.g. relating to drunkenness or offensive behaviour in public, the police may release an accused  on bail.If the offence punishable with death or imprisonment for life a officer in charge of  police station can not grant bail if there are reasonable grounds for believing that he was guilty for such offence.

NOTE-The age,sex,sickness or infirmity of the accused cannot be considered by the police officer for the purpose of granting a bail U/S 497(1). 

These conditions can be imposed-

• Appearence before a court.
• does not commit an offence while on bail
• does not interfere with witnesses
• does not interfere or obstruct the course of justice

Ad-interim bail

Ad-interim bail can be granted at any stage of the case by way of the inherent power of the court.Ad-interem bail may be  prnding appeal or revision and it may also be pending investigation or inquiry.

If the case is pending in the Magistrate court application for bail have to made to the Session Court U/S497 and if the case is panding in the session court application for bail have to made to the High Court Devision.

Right of bail in Bail able offence (Section496).

A bail able offence is an offence where bail can be claimed as of right. Where the accused person is prepared to give bail bond, the police officer or the court is bound to set him free on bail. Thus neither the court nor the officer can reject bail where the offence is bail able. It is only the HCD which has power to order him to be arrested and remanded to custody in bail able offence. In every bail able offence bail is right. The accused of a bail able offence can not be taken into custody unless he is unable or unwilling to offer bail bond or furnish security .The court or police may ask for securities. The object of demand of security is not punish the accused but to ensure his presence in the court. Section 498 specified that, the amount of security must be fixed with the nature of the offence, but should not be excessive.

         

             Case reference-Abdus Salam VS State 41 DLR 291.

Right of bail in Non- bail able offence (Section497).

Where a person is arrested for a non bail able offence and is brought before the court, the court may release him on bail. Thus the bail in non bail able offence is a matter within the discretion of the court, and can not be claim as of right. The accused shall not released, if there are reasonable grounds for believing that he was guilty for such offence punishable with death or imprisonment for life. However Section 497 provides that, any person under the age of 16 years ,any women or sick or infirm person may be released on bail,even though they are accused of offence  punished with long term  imprisonment or with death.

   Case reference-Shah Alam Chowdhury VS State 42 DLR (AD) 10.

Note-It is mendatory for the courts to pass order in writing givening reasons for allowing or rejecting the bail prayer U/S 497(3). 

Anticipatory Bail ( Bail before arrest) U/S 498.

When a person is granted bail in apprehension of arrest this is called anticipatory bail .This is an extra ordinary measure and an exceptional to the general rule of bail. When any person has reason to believe that he may be arrested for committing a non-bail able offence, he may apply to the High Court or the Court of Session for direction under this section that he shall be released on bail. There is no section or provision which authorized the court to grant anticipatory bail . However application is made under section 498 of the CrPc for anticipatory bail. Both the HCD and the Court of Session exercise this power with out any limitation.

 

Condition for an Anticipatory bail

When the court believes that there is a possibility that the accused has been falsely implicated and that his freedom will not hamper the investigation of the crime may bail granted under s. 498 may be cancelled at any time if the investigation is hampered. It is important to note that the attendance of the person apprehending arrest is compulsory at the final hearing.

(1) The person shall make himself available for interrogation by a police officer when required.

(2) The person shall not, directly or indirectly- make any inducement, threat.

(3) The person shall not leave Bangladesh without the previous permission of the court.

Case reference-Abdur Rahman Mulla VS State  50 DLR 401.

                                                                   

                                                                                  

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