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CHAPTER I

INTRODUCTION:

Bail is a common word and it is also very much used word in criminal court
as well as civil court. Bail is to deliver, to release. Bail is delivering
something in trust to somebody for a special purpose and for a limited
purpose. Bail is release after a security has been paid.

Bail is right of the party.

Any one want a bail who are arrested living in jail means they want a bail
at any time. To set free, or deliver from arrest, or out of custody, on the
undertaking of some other person or persons that he or they will be
responsible for the appearance, at a certain day and place, of the person
bailed. The person or persons who procure the release of a prisoner from
the custody of the officer, or from imprisonment, by becoming surely for
his appearance in court. The security given for the appearance of a
prisoner in order to obtain his release from custody of the officer; as, the
man is out on bail; to go bail for any one. The legal system that allows an
accused person to be temporarily released from custody (usually on
condition that a sum of money guarantees their appearance at trial); he
is out on bail. Money that agrees to pay if a person accused of a crime
does not appear at their trail. When bail has been arranged, the accused
person is allowed to go free until the trail. Bail means release after a
security has been paid. Traditionally, bail is some form of property
deposited or pledged to a court in order to persuade it to release a suspect
from jail, on the understanding that the suspect will return for trial or
forfeit the bail (and be guilty of the crime of failure to appear In most
cases bail money will be returned at the end of the trial, if all court
appearances are made, no matter whether the person is found guilty or
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not guilty of the crime accused. In some countries granting bail is


common. Even in such countries, however, bail may not be offered by
some courts under some circumstances; for instance, if the accused is
considered likely not to appear for trial regardless of bail. Countries
without bail imprison the suspect before the trial only if deemed
necessary. Legislatures may also set out certain crimes to be unbailable,
such as capital crimes.

Under the current law of England and Wales bail simply refers to the
release of the accused before trial. Under Scots law, no deposit or pledge
of property is asked for; bail is only granted where the court is satisfied the
accused will turn up for trial.

Objective :

(i) To know about the bail provision of Bangladesh in detail.

(ii) To know the provision of granting bail in non-bailable offense.

(iii) To know the misuse of the power of granting bail.

Methodology :

Every research involves a method by which the desired result can be


achieved. Here I have applied analytical method. In this regard I have used
primary and secondary sources. To complete my research work I will fallow
some critical but effective process and I will fallow this process through
studying books, newspapers, websites discussion with Resource Person,
basic documents etc.
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CHAPTER II

Types of Definition

Definition of Bail:

Security or bond pledged or given to a court or on behalf of one accused


of committing a crime, to obtain release from incarceration and to ensure
the persons future appearance in court when required during the
criminal proceeding.

Interim Bail:

No magistrate. Sessions judge or any court has jurisdiction to grant


interim bail during the pendency of bail application in that court. Order
granting short term bail quashed. If the magistrate, sessions judge feel
that such a course should be adopted and it is always open to them either
to dispose of the application on the same day and in the alternative
release the accused on executing personal bond till the disposal of the
application. It may be also pointed out that the applicant is entitled to
claim the benefit of the proviso to section 497 (1) Cr.P.C which contains
special provision for bail to women. Minors under16 years of age and sick
or infirm persons.

As soon as the accused appears or brought before the court and prays
for bail the Sessions judge should dispose of his Application. If the sessions
judge fails to dispose of the same there is no scope for allowing the
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accused to continue on the bail granted by the magistrate, he is to be sent


jail custody ( Sohail Thakur and others v. State)[1].

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 (Nizamuddin v. State)[2].and
another important case is (Abdul Hakim Howladar v. State)3.

Anticipatory Bail:

Court to try and effect a settlement between the warning couple may be
laudable act but is alien to the exercise of jurisdiction while deciding an
application seeking grant of anticipatory bail. Learned senior counsel
urged that the well known parameters viz. gravity of offence, possibility of
accused absconding or threatening witness of the prosecution, inherent
probabilities, for and against the accused are some of the factors which
have to be considered by the court while deciding an application for grant
a bail.

The Supreme Court of India explains the meaning of Anticipatory Bail and
lays the conditions for granting it. Here are the 9 guidelines as laid down
by a constitution bench, which the Courts are required to keep in mind
while dealing with an application for grant of anticipatory bail:

i) Though the power conferred under Section 497 of the Code can be
described as of an extraordinary character, but this does not justify the
conclusion that the power must be exercised in exceptional cases only
because it is of an extraordinary character. Nonetheless, the discretion
under the Section has to be exercised with due care and circumspection
depending on circumstances justifying its exercise.
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ii) Before power under sub-section (1) of Section 497 of the Code is
exercised, the Court must be satisfied that the applicant invoking the
provision has reason to believe that he is likely to be arrested for a non-
bailable offence and that belief must be founded on reasonable grounds.
Mere fear is not belief, for which reason, it is not enough for the
applicant to show that he has some sort of vague apprehension that some
one is going to make an accusation against him, in pursuance of which
he may be arrested. The grounds, on which the belief of the applicant is
based that he may be arrested for a non-bailable offence, must be capable
of being examined by the Court objectively. Specific events and facts must
be disclosed by the applicant in order to enable the Court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the Section.

iii) The observations made in Balchand Jains case (supra), regarding the
nature of the power conferred by Section 497 and regarding the question
whether the conditions mentioned in Section 496 should be read into
Section 497 cannot be treated as conclusive on the point. There is no
warrant for reading into Section 497, the conditions subject to which bail
can be granted, anticipatory bail cannot be refused in respect of offences
like criminal breach of trust for the mere reason that the punishment
provided for is imprisonment for life. Circumstances may broadly justify
the grant of bail in such cases too, though of course, the Court is free to
refuse anticipatory bail in any case if there is material before it justifying
such refusal.

iv) No blanket order of bail should be passed and the Court which
grants anticipatory bail must take care to specify the offence or the
offences in respect of which alone the order will be effective.
While granting relief under Section 497(1) of the Code, appropriate
conditions can be imposed under Section 497(2) so as to ensure an
uninterrupted investigation. One such condition can even be that in the
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event of the police making out a case of a likely discovery under Section
27 of the Evidence Act, the person released on bail shall be liable to
be taken in police custody for facilitating the recovery. Otherwise, such an
order can become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when
the order was passed.

v) The filing of First Information Report (FIR) is not a condition


precedent to the exercise of power under Section 497. The imminence of a
likely arrest founded on a reasonable belief can be shown to exist even if
an FIR is not yet filed.

vi) An anticipatory bail can be granted even after an FIR is filed so long
as the applicant has not been arrested.

vii) The provisions of Section 497 cannot be invoked after the arrest of
the accused. After arrest, the accused must seek his remedy under Section
496 of the Code, if he wants to be released on bail in respect of the
offence or offences for which he is arrested.

viii) An interim bail order can be passed under Section 497 of the Code
without notice to the Public Prosecutor but notice should be issued to the
Public Prosecutor or to the Government advocate forthwith and the
question of bail should be re-examined in the light of respective
contentions of the parties. The ad-interim order too must conform to the
requirements of the Section and suitable conditions should be imposed
on the applicant even at that stage.

ix) Though it is not necessary that the operation of an order passed


under Section 497(1) of the Code be limited in point of time but the Court
may, if there are reasons for doing so, limit the operation of the order to a
short period until after the filing of FIR in respect of the matter covered by
the order. The applicant may, in such cases, be directed to obtain an order
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of bail under Section 496 or 498 of the Code within a reasonable short
period after the filing of the FIR.

Misuse of Bail:

Where the co accused issued threats to a prosecution witness and report


of the allegation was lodged in police. The co accused was held to have
abused the concession of bail granted earlier. His bail was cancelled in the
circumstances. Where the accused where reported to be renounced bad
mashes likely to misuse privilege of bail. Delay and mere bold assertion of
being falsely implicated by enemies is not enough section to allow bail to
them. Power available to High Court under Sub section of S 497 no doubt
has to be exercised in extraordinary circumstances but the same is meant
to be exercised in appropriate case. Misuse sub section but such power
has to be exercised with care and circumspection and there should be
satisfactory evidence on record to show that accused was thwarting the
course of justice by adopting dilatory tactics.4

Mr. X was granted a bail from the lower court against 498A and 406 at
the time of bail it was not known that he has a valid passport with UK visa;
hence the passport was not ceased by the court.Mr X visited UK within the
bail priod without the permission of the court. Subsequently the fact of UK
Visit was brought to the notice of the court and a case started .The law
year of Mr. Xs lawyer is now pleading on the point that as Mr. X has not
break any condition of the bail bond executed (as per section 496 and 499
)and as Mr X is attending the court on the date whenever called for as Mr.
X has not break any condition of the bail bond so he can go any where
without the permission of the court (Bail bond implies only an oath that he
shout attain the court whenever ask for and know special condition has
been embedded in the bail bond)So the court has no right to punish Mr. X
for the Visit of UK without the permission of the court and the court can
not cancel or cease his passport in this case.
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Bail Bond:

Criminal Law term paper Bail Bonds The principle of bail is basic to our
system of justice and its practice as old as English law itself. When the
administration of criminal justice was in its infancy, arrest for serious
crime meant imprisonment without preliminary hearing and long periods
of time could occur between apprehension and the arrival of the Kings
Justices to hold court. It was therefore a matter of utmost importance to a
person under arrest to be able to obtain a provisional release from custody
until his case was called. This was also the desideratum of the medieval
sheriff, the representative of the Crown in criminal matters, who wore
many hats including that of bailing officer. He preferred the conditional
release of persons under arrest to their imprisonment for several reasons:
it was less costly and troublesome; the jails were easy to breach and
under then existing law the Jailer was hanged if a prisoner escaped; the
jails were dangerous to health, and as there was no provision for adequate
food, many prisoners perished before trial was held Purpose Of Bail
Influenced by factors such as these, the sheriff was inclined to discharge
himself of responsibility for persons awaiting trial by handing them into
the personal custody of their friends and relatives. Indeed, in its strict
sense, the word bail is used to describe the person who agrees to act
assuredly for the accused on his release from jail and becomes responsible
for his later appearance in court at the time designated. As surety, the bail
was liable under the law for any default in the accuseds appearance.
Purpose Of Bail 3Between the 13th and 15thcenturies the sheriffs power
to admit to bail was gradually vested, by a series of statutes, in the
justices of the peace. In the case of a person committed for felony, the
justices of the peace had the authority to require, if they thought fit, his
remaining in jail until the trial took place, but, on the other hand, a person
committed for a misdemeanor case could, at common law, insist on being
released on bail if he found sufficient sureties. Writing in the mid-1700s,
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Blackstone described the arrest-bail procedure his day in the following


passage: When a delinquent is arrested. He ought regularly to be carried
before a justice of the peace.If upon inquiry it manifestly appears that
either no such crime was committed or that the suspicion entertained of
the prisoner as wholly groundless, in such cases only it is lawful totally to
discharge him. Otherwise he must be committed to prison or give bail that
is, put in his securities for his appearance to answer the charge against
him. This commitment, therefore, being only for safe custody, wherever
bail will answer the same intention it ought to be taken. Bail is a delivery
or bailment of a person to his sureties, upon their giving (together with
him) sufficient security for his appearance. The notion of bail pending trial
was not changed over the centuries. Admission to bail always involves a
risk that the accused will take flight. That is a calculated risk which the law
takes as the price of our system of justice the possibility that the accused
might flee or hide must, of course, be squared with the traditional right to
freedom pending trial. In order to reconcile these conflicting interests,
therefore, his release on bail is conditioned upon his giving reasonable
assurance in one form or another that he will appear at a certain time to
stand trial. In this regard, the Supreme Court has remarked: Like the
ancient practice of securing the oaths of responsible persons to stand as
sureties for the accused, the modern practice or requiring a bail bond or
the deposit of a sum of money subject to forfeiture serves as an additional
assurance of the presence of the accused. Modern statutes, which regulate
bail procedure in detail today and vary from jurisdiction to jurisdiction,
provide that an accused may be set at liberty pending trial in several
ways. For example, he might be released without security by agreeing in
writing to appear at a specified time and place, i.e., on his own
recognizance; or he may execute a bond with a deposit of cash or
securities in an amount equal to or less than the face amount of the bond;
or he may execute a bail bond which requires one or more sureties. A bail
bond, with sureties, is essentially a contract between the government on
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the one side and the accused and his sureties on the other. Under the
contract the accused is released into the custody of the sureties on their
promise to pay the government a stated sum of money if the accused fails
to appear before the court in accordance with its terms. Historically, the
contract of bail, traced to a gradual increase of faith in the honor of a
hostage and the consequent relaxation of actual imprisonment,
constitutes one of the first appearances of the concept of contract in our
law.

CHAPTER III
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Bail proceeding and the misuse of the power of granting bail

Forms of Bail:

In the most of States there are several forms of bail used, these vary from
jurisdiction, but the common forms of bail include:

1. Recognizance when an accused is released on recognize, he


promises to the court that he will attend all required judicial
proceedings and will not engage in illegal activity or other prohibited
conduct as set by the court. Typically a monetary amount is set by
the court, but is not paid by the defendant unless the court orders it
forfeited; this is denominated an unsecured appearance bond or
release on ones own recognizance.

2. Surety by a surety bond, a third party agrees to be responsible for


the debt or obligation of the defendant. In many jurisdictions this
service is provided commercially by a bail bondsman, where the
agent will receive 10% of the bail amount up front and will keep that
amount regardless of whether the defendant appears in court. The
court in many jurisdictions, especially jurisdictions that prohibit bail
bondsmen, may demand a certain amount of the total bail (typically
10%) be given to the court, which, unlike with bail bondsmen, is
returned if the defendant does not violate the conditions of bail. This
also known as surety on the bond.

3. Property the accused or a person acting on his behalf pledges real


property having a value at least equal to the amount of the bail. If
the principal fails to appear for trial the state can levy on the
property to recover the bail.

4. Cash typically cash-only, where the only form of bail that the
Court will accept is cash.
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5. Combinations courts often allow defendants to post cash bail or


bond, and then impose further conditions, as mentioned below, to
protect the community or ensure attendance.

Bail Proceedings: Background

Bail is an amount of money that a criminal defendant may be ordered to


pay before being released from custody pending trial. Its purpose is to
ensure a defendants return at subsequent trial proceedings. Bail is
typically determined during a defendants first appearance in court. A
judge or other court officer sets the amount and conditions of bail. At a
bail hearing, a judge has three options:

Release the defendant on his or her own recognizance or upon an


unsecured appearance bond

Deny bail to the accused

Set terms of bail, including the amount of bail and any special
conditions for release

In common usage, bail typically refers to criminal proceedings. However,


in rare instances bail may be imposed in civil cases. Civil bail is used to
directly or indirectly secure payment of a debt or to secure a performance
of a civil duty. For example, bail may be employed in a civil case to arrest
someone to prevent them from fleeing to avoid litigation, or it may be
used to prevent an unlawful concealment or disposal of assets. The
amount of bail set will be based on the probable amount of damages the
plaintiff could collect. Sometimes the deposit may be used to pay the
judgment to a plaintiff.

Bail law came to the U.S. through English tradition and laws. Even
before the adoption of the U.S. Constitution and Bill of Rights, a judiciary
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act in 1789 guaranteed a right to bail in all non capital cases. For a person
charged with a capital offense (where death is a possible punishment), bail
was discretionary, depending upon the seriousness of the offense.

Bail is not meant to act as pre-trial punishment or as a fine. Modern bail


laws reflect an intentional emphasis on non-monetary methods to ensure a
defendants appearance at trial. This is meant to avoid discrimination
against poor defendants.

Bail may or may not be required in misdemeanor cases, depending


upon the circumstances and seriousness of the offense. More serious
misdemeanor cases and felonies often require a bail determination. Bail
may come into play at three stages of a criminal proceeding:

During the pretrial period

Pending imposition or execution of sentence

Pending appeal of a conviction or sentence

If bail is not required, a defendant may be released on his or her own


recognizance. Releasing someone on personal recognizance means that
the person has promised to show up for trial or other court proceedings,
without posting a bond. Release on personal recognizance may be
appropriate when a person has ties to the community and has lawful and
steady employment. Family status is also taken into account. Before
release, a defendant must sign a document promising to appear. Failure to
abide by the terms of release on personal recognizance may result in
revocation of the privilege, or further criminal charges, including
immediate arrest. A defendant released on personal recognizance may be
required to abide by certain rules. For example, the defendant may be
forbidden from traveling outside of the courts jurisdiction, or may be
forbidden from contacting the victim or the victims family.
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A court may also impose an unsecured appearance bond on a criminal


defendant. A bond amount is set, but the defendant is not required to post
any money. If the defendant fails to appear at subsequent proceedings, or
violates any terms of the bond, he or she will be required to pay the full
amount of the bond.

According to the Department of Justices Bureau of Justice statistics, for


all defendants charged with state felonies in May 2000 in the 75 most
populous counties in the country:

62 percent were released prior to the disposition of their case

38 percent were detained, including 7 percent who were denied bail

Of those released, 26 percent were released on their own


recognizance

37 percent were released on a commercial surety bond

About a third of those released failed to appear for a scheduled


appearance, were rearrested for a new offense, or committed a
violation that resulted in revocation of the pretrial release

Important Provision relating to Bail:

1. What is bail?

Bail is an alternative preventive measure to the preventive measure


applied as detention against the defendant and it is applied only in case
the court has made a decision about detaining the defendant.

By saying bail we understand a sum of money, securities, other


valuables or, if the court permits, also real estate, which is paid to the
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courts deposit account to ensure that the accused is at the disposal of the
body carrying out criminal proceedings.

Thus, bail is a guarantee for the defendant to be in freedom until a


judgment is made against him.

2. When can a person be released on bail upon the moment he


appeared in custody?

An arrested person can be kept under custody no more than 72 hours.


During this time a charge shall be brought against him and if necessary
the question of choosing detention as a preventive measure shall be
determined in court. If a preventive measure is chosen regarding not
keeping the person in detention or a preventive measure is not chosen at
all, the latter is released. And if detention is chosen as a preventive
measure, the defendant has the right to file a motion about being released
on bail.

3. Who makes the decision about release on bail and when?

The court makes a decision about releasing the defendant on bail. When
discussing the motion made by the pre-investigation body, the
investigator or the prosecutor about detention, the court discusses also
the possibility of releasing the defendant on bail.

4. What if the bail issue is not discussed at all at that moment?


Can the defendant or his defense attorney file a motion later?

Yes, later at any investigation or trial stage the defendant or his defense
attorney can file a motion to the court to release the defendant on bail, as
well as to reduce the bail amount.
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5. If bail has been refused, can the defendant or his defense


attorney again apply to court later with a request to discuss the
issue once more?

According to the European Convention of Human Rights and


Fundamental Freedoms, despite the fact whether the motion about release
on bail has once been rejected or not, some time later the defendant has
the right to file the same motion. It is prohibited to reject the motion with
the reasoning that the previous court decision about rejecting bail has not
been appealed to the Court of Appeals or to the Court of Cassation.

6. In the existence of which circumstances is bail applied?

Bail is an alternative preventive measure to detention. Like detention, it


can only be applied to the defendant. Bail should be applied in all cases
when the defendant has committed a crime which is not grave or is of
medium gravity and detention as a preventive measure has been
undertaken against him. Only in the existence of certain circumstances
the court can find the release on bail inadmissible by mentioning about
the motives by all means. Such motives may include lack of knowledge
about the defendants identity, not having a permanent place for living or
if the defendant has made an attempt to hide from the body carrying out
criminal proceedings.

The rejection of bail is impermissible when there are only reasonable


doubts that a crime will be committed.

7. Who can file a motion about applying bail?

Detention and bail are applied only by the courts decision upon the
investigators or the prosecutors motion or on personal initiative while the
case is being heard in the court. The court can also apply bail instead of
detention upon the motion made by the defense party.
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8. Where is bail paid at and how?

Bail is paid to the courts deposit account in the form of money,


securities and other valuables. With the courts permission real estate can
also be accepted as bail. In the event bail is made in the form of other
valuables or real estate the pawnshop shall bear the burden of proof for
the amount of the those valuables.

9. Who can pay the bail?

The defendant, his/her relatives and any person can pay the bail.

10. How and when is the defendant released from detention once
the bail is paid?

Once the bail is paid the relevant document evidencing it shall be


submitted to the body carrying out the proceedings, i.e. the court, the
prosecutor, the investigator, the pre-investigation body. Shortly afterwards
the body carrying out the proceedings shall give an assignment to the
administration of the detention center, which in its turn is obliged to
release the defendant promptly from detention1.

11. Who determines the amount of the bail?

The court determines the amount of the bail by considering the rules
mentioned in question 8. Although the legislation does not provide the
maximum amount of the bail, nevertheless the court, while determining
the amount of the bail, should consider the financial state of the accused,
his family conditions and the number of people who are under his care.

12. What kind of responsibilities does a person who has been


released on bail have?
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The defendant who has been released on bail is at the disposal of the
body carrying out the proceedings. This means that he/she should not hide
from the trial, must appear upon

Summons and not to leave for another place without his permission.

13. What consequences can violation of the terms of the bail


have?

If the terms of release on bail are violated, the prosecutor shall apply to
court with a motion to take the bail as state income. The prosecutor can
also file a motion on substituting bail with detention.

14. Can the decision on making the bail as state income and/or
substituting it with detention be appealed?

Yes, if the court grants the prosecutors motion and makes a decision on
making the bail as state income and substituting it with detention, these
decisions can be appealed. The defendant or his/her defender can appeal
such court decisions to the Court of Appeal and later to the Court of
Cassation.

15. When is the bail returned?

In all cases the bail is returned to the pawnshop, with the exception of
cases when a decision has been made to make the bail as state income. If
the defendant has not violated

The terms of the bail, the bail is returned after the judgment has been
made. Bail is returned in all cases irrespective of the fact whether the
person is sentenced to imprisonment or not.
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Zahirul Huq, Law and Practice of Criminal Procedure, (Fifth Edition, 1987)
by Subarna Publication

Why Bail Refused:

There are many reasons to refuse a bail by court. Generally satisfaction of


court is very important, like there is not proper sufficient ground to get bail
from court, there is not enough document to get bail.

In below there are some mere possibility reasons of why bail is refused.

If you have not given a name or address, or the court have reasonable
grounds for doubting the name or address you have given.

If the court has reasonable grounds for believing that you wont turn up
at court (e.g. if you have not turned up in the past and have a bad bail
record).

If the court has reasonable grounds for believing that detention is


necessary to prevent you from causing injury to a person, or loss of or
damage to property.

If the court has reasonable grounds for believing that detention is


necessary to prevent you from interfering with the administration of
justice or the investigation of an offence.

If the court has reasonable grounds for believing that detention is


necessary for your own protection or, if you are under 17, that you ought
to be detained for your own interests.

If you has been arrested for an impressionable offence, and the court
have reasonable grounds for believing that detention is necessary to
prevent you from committing an offence.
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Note the words reasonable grounds and that detention is necessary in


the above rules. You may be able to argue that they should instead release
you subject to particular bail conditions. Alternatively, you could argue
that they should release you subject to a surety to vouch that you will turn
up at court, if the police want to keep you in because you have a bad bail
record. If this is a likely situation, you could arrange with someone to
agree to act as a surety for you, in the event that its needed. But note
that both you and your surety commit a criminal offence if you agree to
indemnify your surety (e.g. if you agree to pay them what they will owe if
they are your surety and you dont turn up).

When does Court Refuse Bail?

The general rule is that the court has to grant bail unless one of the
following conditions applies.

If its not an impressionable offence, the court can refuse bail if you
have previously not turned up after being granted bail and if the court
believes that, if released on bail now, you would fail to turn up.

If its an impressionable offence, the court can refuse bail if it is satisfied


that there are substantial grounds for believing that, if released on bail,
you would (a) fail to turn up, (b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice in
relation to yourself or anyone else. You can also be refused bail if the court
is satisfied that it hasnt been practicable to obtain sufficient information
to make up its mind.

If its an indictable or either way offence (i.e. one that can be tried in
front of a jury, like theft, conspiracy or major criminal damage), the court
can refuse bail if you were on bail (for another offence) on the date of the
offence.
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In any case (whatever the offence), the court can refuse bail if its
satisfied that you should be kept in custody for your own protection or (if
under 17) for your own welfare, OR if youre in custody following the
sentence of a court, OR if you have been arrested for absconding (not
turning up after being on bail).

If a court withholds bail, you will be kept on remand. Your bail will be
reviewed by the court each week (or so) until you are either released on
bail or brought to trial. When reviewing bail, the court has to hear
submissions from you at the first review (even if you have made the same
arguments before), but can refuse to hear the same arguments after that
(you can still make a submission, so long as its different from before).

Misuse of the power of granting bail:

In bailable offense accused have right to get bail. But, sometimes we are
looking that ,the accused can not get bail in bailable offense in the court.
The Magistrate is influenced by political and other illegal way he can not
grant bail.

In the political cases, the Magistrate can not grant bail in the bailable
offense. In this way by illegal interfere of the political leader, the
independency of judiciary is broken down and for this reason people are
confused about the court are they getting right judgment in the court.?

There are other important reason for refused granting bail by the
magistrate is taken huge amount of money from the party. Some
magistrate are corrupted , there are always take money from the party
after that the magistrate granting bail in the non- bailable offense.

In the Session judge court and the High court division has discretionary
power for granting bail. The session judge and high court division has
right to grant bail in non-bailable offense. Session judge and High court
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division exercise the supreme power of granting bail. For, this reason
,sometimes misuse of the power of granting bail in the court.
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CHAPTER IV

SECTION RELATING TO BAIL:

When any person other than a person accused of non bailable offence is
arrested or detained without warrant by an officer in charge of police
station or appears or is brought before a court and is prepared at any time
while in the custody of such officer or at any state of the proceedings
before such court to give bail. Officer or Court if he or it thinks fit may
instead of taking bail forms such person. Discharge him on his executing a
bond thought sureties for his appearance as hereinafter provided:

Provided further, that nothing in this section shall be seemed to affect


the provisions of section 107 sub section (4) section 117, sub section (3).

(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 in Court, he may be released on bail but
he shall not be so released if there appear reasonable ground for
believing that he has been guilty or an offence punishable with death
or imprisonment for life.
1. Provided that the court may defect that any person under the age of
sixteen years or any woman or any sick or infirm person accused of
such an offence be release on bail.
(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.
24

(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 judgment 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 judgment 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.

Application of These Sections:

The basic conception of the word bail is release of a person from the
custody of police and delivery into the hands of sureties who undertake to
produce him in Court whenever required to do. For the purpose of bail.
offences are classified into two categories, bailable and non bailable. This
section provides for the granting of bail in bailable case and section 497
in non bailable cases. Grand of bail in baliable offence is a right while in
nonbailable offence the grant of bail is not a right but concession grace.
Grant of bail in offence punishable with imprisonment for less that 10
years is a rule and refusal and exception in bailable offences, there is no
question of discretion in granting bail as the word of the section are
imperative. The only choice for the court is as between taking a simple
recognizance of the principal offender or demanding security with surety.
Ordinarily the world bail applies to the second kind of security to the
practice and procedure to the court[3].

Section 496 CR P.C confers an absolute right on accused to be released


on bail with no provision imposing any liability for his rear rest whilst
25

section 497 Cr P.C confer no absolute right to bail. Which privilege is


discretionary with provision imposing a liability for his re arrest and
committal to binds him to the principles and limitations flowing from the
grant of such a concession it being understood that but for the concession,
he could be in custody concession, it being understood that but for the
concession, he could be in custody. Even in case not falling form the grant
of such a concession it being understood that but for the concession, he
could be in custody. Even in case not falling within prohibitory clause,
accused person can not claim bail as a matter of right Grant of bail is not
favour or concession but is a right of the detente regulated by law. Ball
shall not be granted if the offence is punishable with death. or
imprisonment for life if the court is of the view that there appear
reasonable grounds for believing that the person concerned accused or
suspected of the commission of the offence provided that he may in his
discretion grant bail to a woman or a minor under the age of sixteen or a
sick or infirm person. The power of release may be exercised by the Court
when the accused appear or is brought before if whether during
investigation or otherwise.

The basic essential governing the matter of granting bail is that bail
should never be withheld as punishment. Grant of bail is a rule and same
could not be withheld by way of punishment.
26

CHAPTER V

PRINCIPLES OF BAIL

Bail on Humanitarian Ground:

A sick or infirm may be released on bail even in a case of capital


punishment. Grant of bail to a woman is not a matter of right yet intention
of Legislature appears to be that bail should invariably be granted to a
woman unless any special circumstances exist on record to warrant refusal
of bail. A Court should grant bail to a woman even when she is an accused
of murder. Where there was no evidence to show that woman accused had
been party to conspiracy to commit murder they were enlarged of bail (PL)
1983 in such circumstances the existence of a suckling baby may be a
additional ground in favour of grant of bail.

Bail may be granted to a student to taken an examination with the


direction that he should surrender to the court on the conclusion of the
examination.

Minor is a also point of granted to Bail. Lunatic also point to granted to


Bail.
27

Principles for Granting of pre-arrest Bail:

Power of granting anticipatory bail is very sparingly used by High court to


save a citizen from unnecessary harassment and humiliation in the hands
of police on flimsy ground or with ulterior motive or out of political design.
This power can not be exercised in each and every case as a substitute to
the exercise of such power by the court below. A person can not be
enlarged on anticipatory bail how high so ever he maybe unless conditions
for granting such bail are satisfied. The considerations which are to weigh
with the Court while dealing with an application for bail before arrest are
quite different from those which arc to be taken into account after a
person has been arrested and he moves for being released on bail: It is
only in extraordinary circumstances that a person maybe admitted to ball
before arrest In a cognizable case. Where petitioners were apprehending
arrest on account of some ulterior motives on part of someone in authority
or otherwise hostile to them. Criminal law must have its normal course
and it would be for the competent Court to determine the question of bail
in accordance with law after the accused persons had surrendered.
Though grant of bail before arrest is rare, yet petitioner has probably. been
falsely involved in a case and it likely to suffer irreparable Injury to his
dignity respect and reputation.

In order to justify the grant of pre-arrest bail, the petitioner must show that
he apprehends his arrest on account of ulterior motives. Pre-arrest bail
may not be granted where there is no allegation made against the police
that they have falsely implicated the petitioner in the case. Where there is
nothing to show that there has been false involvement and the accusation
is of a heinous offence like sodomy bail before arrest cannot be granted.

2. The main conditions to be satisfied before exercise of jurisdiction to


allow pre-arrest bail under section 498. Cr. P. C. are :
28

(a) that there should be a genuine proved apprehension of


imminent arrest with the effect of virtual restraint on the
petitioner:
(b) that the petitioner should physically surrender to the Court:
(c) that on account of ulterior motives, particularly on that part
of the police. there should be apprehension of harassment
and undue irreparable humiliation by means of unjustly
arrest:
(d) that it should be otherwise a fit case on merits for exercise
of discretion in favour of the petitioner for the purpose of
bail. In this behalf the provision contained in section 497,
Cr. P.C. would have to be kept in mind:
(e) 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.

Guiding Principles in bail matters:

As a general rule bail should not be withheld as punishment unless the


facts warrant such course. The state [3CR (SC) 50). Courts exercising hail
jurisdiction should refrain from including in elaborate reasoning in their
orders in justification of grant or nongrant of bait (Kashi Nath Ray v.
State of Bihar, AIR 1996 SC 3240). Bail was 1101 to be refused to accused
by way of Punishment and the prosecution was required to show existence
of reasonable grounds and satisfactory evidence ill support of alleged
against a accused and it prosecution failed to same then matter would
become to, further 1110 the of accused and hail in circumstances should
not be withheld.[4]

While granting hail 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 as reasonable possibility
of the presence of the accused not being secured at tile trial responsible
29

apprehension of the witnesses being tampered with, the larger interests of


the public or the state and similar other considerations (K. Chandra v.
State. I993 (1) Crimes 1 49 (Delhi).

The matters for consideration ill an application for hail may he


enumerated as follows:

(a) Whether there is or is not a reasonable ground for believing that the
applicant has committed offence with which he is charged:
(b) The nature and gravity of the charge:
(c) Severity of degree of the punishment which might fail in the
particular circumstances in case of a conviction:
(d) The danger of tile applicants absconding if he is released on hail:
(e) The character and means and standing oh tile applicant:
(f) The danger of the alleged of alleged being continued or repeated
assuming that the occlude 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 defense and
(i) the fact that the applicant has already been sonic months in jail and
that the trial is not likely to conclude to, several months at least
(Hamarayan AIR I 958 Punj I 23: Khitish Chandra. (1972) 38 Cut Li
777: 1977 Ml.) (Cr.) 284: Ii R (1977) 2 Kant 1025).

While dealing with a bail application tile High Court should take 1110
account the various considerations. Such as

(i ) nature and seriousness of the offence:

(ii) The character of the evidence:

(iii) Circumstances peculiar to the accused:

(iv) Responsible apprehension of witnesses being tampered with:

(v) The larger interests of tile public or the state: and


30

(vi) Similar other considerations which arise when a court is asked to


admit accused to bail in a non bailable offence would also apply in case of
section 498 (Md. Ayub v. Md. Yaqub)2.

The matters for consideration in an application for bail may be


enumerated as follows :

whether there is or is not a reasonable ground for believing that the


applicant has committed the offence with which he is charged the Nature
and gravity of the charge Severity or degree of the punishment which
might fall in the particular circumstances in case of a the character and
means and standing of the application: (c) the danger of the alleged
offence being continued or repeated assuming that the accused Is guilty of
having that offence in the past: (d) the danger of witnesses being
tampered with: (e) opportunity of the applicant prepare his deference and
(f) the fact that the applicant has already been some months in jail and
that the trial is not key to conclude for several months at least (1977 Cr. U
1724). If the Court is satisfied after taking into consideration that the
accused has its roots in the community and is not likely to abscond it can
safely release the accused on his personal bond, that to decide if the
accused has its roots to society, the following are relevant, namely. (1)
length of his residence in the community: (2) his employment status: (3)
history and financial condition, his familities and relationship, his
reputation, character and monetary condition, his reputation, character
and monitory condition, his prior criminal record including any record of
any prior release on bond or recognizance. The identity of responsible
member of community preparing to vouchsafe of his reliability, nature of
offence charged and the apparent probability of conviction and the likely
sentence and any other factor indicating the tics of the accused to the
community or bearing on the risk of willful failure to appear.
31

Bail should be granted when the object of selection can be achieved by


requiring the accused to furnish security, more so when there is no reason
to apprehend ascendance or tempering with evidence. Only because there
is the necessity of searching the house of the accused, bail cannot be
refused. For the purpose of granting bail in a pending cases the following
points are very much relevant, namely.

(1) bail should not be refused as a matter or punishment;

(2) the applicant should be presumed to be innocent till he is proved to be


guilty:

(3) nature of acquisition and the extent of punishment:

(4) bail is the rule and rejection is exception;

(5) likelihood of jumping the bail and tempering with evidence. Possibility
of non availability of the accused during trial, due apprehension of his
being murdered for retaliation has been considered to be a relevant
consideration while refusing bail. When proper treatment is available in
the bail on the ground of sickness is to be refused. It is to be remembered
that while adjudicating a bail petition detail examination of evidence and
elaborate documentation of the merits of the case should be avoided.
Although technically there is no bar of resjudicata. successive applications
for bail, should not be encouraged unless new grounds are available and
are successfully made. The likelihood of interference with witnesses
polluting with imprisonment for life and the accused petitioners arc men of
date-devil character and are also involved in other criminal cases, the
applicants prayer for bail should not be granted. That accused must
appear in Court and surrender when he applies bail and he cannot file the
bail petition through counsel without putting appearance.
32

CHAPTER-VI

CONDITION OF BAIL

Condition:
33

The law enjoins certain conditions for the release on bail, and the
Criminal Procedure Code lays down various provisions regulating the
conditions that can be imposed while granting bail to a person.

Section 499. (1) Before any person is released on bail or released on


his own bond ,a bond for such sum of money as the police or court, as
the case may be , thinks sufficient shall be executed by such person,
and when he is released on bail, by one or more sufficient sureties
conditioned that such person shall attend at the time and place
mentioned in the bond, and shall continue so to attend until otherwise
directed by the police or court, as the may be.

(2) If the case so requires ,the bond shall also bind the person
released on bail to appear when called upon at the High Court or Court
of Sessions or other court to answer the charge.

The word conditioned in section 499, Cr.P.C. is not so comprehensive as


to include all continued that the Magistrate may like to impose e.g.,
that accused is to live in a certain place.[PLD 1955 Dhaka 84].

Bailable offence:

In bailable offences, there is no direction to the court in granting bail,. The


only choice given on the court is either to take a simple recognizance of
the person released or to demand security. The court has not discretion in
a bailable offences, while granting bail under section 496, Cr.P.C. to
impose any condition expect the demand of security with sureties.[AIR
1940 Mad 77=1948(1) M.L.J.332=1948 M.W.N.368].

In the case of bailable offences, the accused had an indefeasible right


to grant of irrespective of his conduct however, reprehensible it may
be. [1981 P.Cr.LJ 788=NLR 1981 Cr.LJ741].
34

When bail may be refused. It cannot be said that section 497(1), Cr.
P.C was applicable only where an offence was punishable exclusively
with death or imprisonment for life and by no other sentence in place
of or in substitution of death or imprisonment for life.[PLD 1973 Lah.
741].

Non- bailable offence:

In the case of non bailable offence, granting of bail is discretionary. In


certain cases, bail cannot be granted, while in certain other cases, bail
may be granted at the discretion of the court. When a discretion is
vested in the court the discretion has to be exercised subject to such
reasonable conditions as the court deems to fit. In non bail able cases,
grant of bail is only a concession allowed person. The court should see
that the concession is not misused and so any reasonable condition can be
imposed when granting bail in such cases.

Where the accused where charged under Section 452, 109 and 120-
B .Cr. P.C., for carrying on demonstrations with a view to bring pressure
on the Government to give up its to impose grazing fees and the court
in granting bail, imposed a condition, that the accused should execute
bond not to abet to take part in such demonstration, it was held that
conditions were not unreasonable . The only condition contemplated by
Section 499, Cr.p.c. is the attendance of the accused in court on a fixed
day and continue to attend court until otherwise directed. Any other
condition such as undertaking not to deliver speeches until the disposal
of the case is invalid and will not result in forfeiture of the bond .(AIR 1939
cal 714 = 41 Cr. LJ 138= 43C.W.N. 6 93]
35

Condition of bail:

The conditions for grant of bail to a person of bail offence should not be
harsh, oppressive and virtually resulting in denial of bail. Sub-sec. (3)
empowers the to impose two conditions in case mentioned in sub-
clauses(a), (b) and (c). Under sec. (1) (a) the High Court or the Court of
Session is also authorized to impose such conditions. But any condition,
which has no reference to the fairness or propriety of investigation or trail,
cannot be imposed in granting bail. The Bombay High Court has held that
it was improper on the part of the court to impose the condition that he
would pay the complainant the amount secured by him as a result of
cheating and again to cancel the bail on his inability to return the
amount in full.

1. Anwar Vs. state 1995 Cr. LJ 863 (Orin) [ the condition for release
on the bail for depositing cash security with one surety in addition
to bail bond held harsh and progressive.

2. Sk. 1981 Cr. LJ 954: (1981)2 Andh WR 1.

Recording of reasons:

A police officer or a Court relating a person on bail under sub-sec. (1) has
to record his or its reasons for releasing any person on bail and under
sub-sec.(2) has to record his or its special reasons for granting bail . Even
in case of refusal, reasons, are required to be recorded, otherwise the
High Court will interfere.
36

Chapter- VII

ANTICIPATORY BAIL OR BAIL BEFORE ARREST

Meaning:

A bail in anticipation of arrest or detection is termed as anticipatory bail. A


person is to be released on bail (1) when he is arrested or detained
without warrant by an officer in-charge of police stations, or (2) when he
appears or is brought before a court. The judicial opinion is Conflicting on
the issue whether a person can apply for release on bail in anticipation of
arrest or detention.

The Allahabad High Court held that bail cannot be granted to an accused
who 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 every


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 results in
his placing himself in the 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 the
court and got his release on bail.
(3) Appearing through counsel cannot 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 cannot be any
undertaking that he would not move away from that place. The word
appear in Section 496 and 497, P.C.does not contemplate the
appearance through counsel.
37

(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
on his movement instead of any to him.(1955Cr.L.J.275=AIR
1955M.B.98)

For exercise of discretion of grant of bail before with effect of virtual


restraint of apprehension of (1)imminent arrest with effect of virtual
restraint of petitioned and (2) harassment and irreparable humiliation by
means of unjustified arrest on account of ulterior motives particularly on
part of Police to be shown.

Main conditions:

The main conditions to be satisfied exercise of jurisdiction to allow pre-


arrest bail ec, 498, Cr.P.C, are:-

(1) that there should be a genuine proved apprehension of imminent


arrest with the effect of virtual restraint on the petitioned;
(2) that the petitioner should physically surrender to the court ;
(3) that on account of ulterior motives particularly on the part of the
police, there should be apprehension of harassment and under
irreparable humiliation by means of unjustified arrest;

that it should be otherwise a fit case on merits for exercise of


discretion in favour of the petitioner for the purpose of bail. In this
behalf the provisions contained in section 497,Cr.P.C.would have to be kept
in mind ;

that unless there is reasonable explanation, the petitioner should


have earlier moved the Sessions court the same under section 498,Cr.P.C
[PLD 1974 Lah.256].
38

Ordinarily an application for bail before arrest should be presented to the


Session Judge. [PLJ1 973 Lah.524].

The anticipatory bail may be grated when the offence are bailable and non
cognizable. [ NLR 1983 Cr Lah. 334].

Maintainability of second anticipatory bail application:

Second anticipatory bail application is maintainable even when earlier one


was dismissed on merits or withdrawn (Imratlal Vishwakarma Vs.State of
M.P; 1997(1) Crimes 189 (M.P). Rejection of bail application at an rarlie
stage does not preclude filling of fresh application in changed
circumstances (Prasanjeet Basu Mallick Vs.State of Orissa, 1997 Cr.LJ
902(Ori).

Duration of anticipatory bail:

In Gurbaksh SinghVs. State, the court made it clear that the operation of
an order passed under sec. 438(1) necessarily be limited in point of time.

The Court may, if there are reasons for governor by Terrorist Areas (Special
Courts) Act, 1984.Promode Khare 1982 Cr. LR 344(MP).

Anticipatory bail under sec.438 can be granted to persons accused of


offences under the Karnataka Forest Act, 1963 and apprehending arrest by
the Range Forest Officer. H.S. Manjunath Vs.State 1995 Cr. 179 (Kant)
(DB).

Forum:

The appropriate court within whose jurisdiction the offence is alleged to


have been committed or the arrest is apprehended, may grant
anticipatory bail. But some of the High Courts have taken the High Court
can release on anticipatory bail a person residing within its jurisdiction
although the offence has been committed outside the jurisdiction of that
39

High Court. However, disagreeing with the said decisions of the Calcutta,
Karnataka, Delhi and Bombay High Courts, it has been held by the Madhya
Pradesh High Court in Pradeep Kumar Vs. State that in order to ascertain
the venue of jurisdiction of the court, provisions of sec.438 have to be
read along with other relevant provisions of the Code and combined
reading of sec.438 and Chapter XIII of the code, which is explicit, denotes
that the jurisdiction to try the accused for an offence alleged has to be
determined from the area within which the offence is committed and not
the where the offender may be found or residing. Amar Bharati
1980Cr.LJ385:1981 Rajdhni LR 37; Syed Zafrul Hossain Cr.LJ(part);
C.T.Mathew 1985 Cr. LJ 1316(Ker).

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 sides ,such an order is not an order of
cancellation of the bail. Therefore, the principles on which the bail can be
cancelled would not be attracted when interim anticipatory bail is
cancelled on hearing both sides. It has been held that when an
anticipatory bail is granted on giving full hearing to the public prosecutor
and repeated attempts to have it cancelled have failed it cannot be
cancelled unless fresh materials are placed and the conditions for
cancellation of bail as provide under sec.439(2) are fulfilled . Rejection of
bail is 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 bail, broadly (illustrative and not
exhaustive)are: Interference or attempt to interfere with the due course of
40

administration of justice or evasion or attempt to evade the course of


justice or abuse of the concession granted to the accused in any manner.

Bail before arrest:

Although in the Code of criminal Procedure there is no specific provision


for granting anticipatory bail, yet due to judicial pronouncements of the
Supreme Court of Pakistan and by our Supreme Court it is now established
that anticipatory bail can be granted (Abdul Wahab Shah Chowdhury Vs.

The State, 19 BLD (AD) (1999) 189(para26)=1999 BLC (AD) 195). For bail
before arrest section arrest section 498, Cr.P.C would be called in aid,
before the Court of Sessions and the High Court even where the court not
seized directly of the proceedings in question and where no where no
actual arrest has been made so far but anticipatory bail is asked for e.g.
where the case is still at the stage of investigation by the police or is
pending in a subordinate court.

Chapter- VIII

BAIL ON SPECIAL LAWS

Special law proving for bail:

Where a special law makes provision for the disposal of bail applications,
the High Court has no jurisdiction to grant bail in contravention of those
provisions. There is no question of disputing with a Special enactment or
permitting it govern the field for which it is meant, or it caters; but it
cannot be stretched too far to enable it to travel outside its scheme and to
disturb the continuance of the normal law of the land; much less to allows
it to occupy the field for which it does not provide.

Special Court or Tribunal not constituted:


41

Where an offence is tribal by a special Court, and the Special Court has
not been constituted when a pre- arrest bail application is made to the
High Court, the Court can exercise jurisdiction under this section even
when the special Court is constituted after the application is made.

Prevention of Corruption Act:

Where the petitioner was charged for offences under section 161, P.C. and
section 5 of Prevention of Corruption Act, punishable with 3 years and 7
years R.I respectively. Prohibitory clause as given in section 497, Cr. P.C.
was not attracted to the petitioners case. He was enlarged on bail on such
sole consideration. Where in a case under the Act the accused petitioner
was no longer required by the Police for investigation, he was released on
bail.

Embezzlement:

Where the total amount involved in all the cases was approximately Rs.
24,00,000 out of which an amount of Rs. 9,04,000 had not been
recovered while the remaining amount had already been recovered. Bail
was granted. Where the petitioners were in jail ever since the date of his
arrest and the period of their detention came to more than a year.

Pre-arrest bail:

Where the petitioner was a bank employee against whom serious


allegation were made of embezzlement of public money lying in trust
with him. The case was not fit for granting pre-arrest bail at that stage.

Custom Act:

Where an offence has been committed under Customs Act bail may be
granted Criminal Procedure Code. Where the petitioner a carrier for the
owner, was charged under Customs Act for smuggling narcotics, he was
42

not granted bail even when the offences was punishable with ten years
R.I. only. But where the accused was only a carrier and he had no reason
to doubt that goods sought to be exported out of Bangladesh were
contraband or the company for which they acted was a fictitious firm.

Special law not specifically providing for bail:

Where the special or local law does not specifically provide for bail,
provisions of Cr. P. Code would apply and bail may be granted by ordinary
Courts. As there is nothing in foreign Exchange Regulation Act to regulate
matters of bail, the powers of the High Court under section 498, to admit a
person accused of an offence under the Act to bail has not been restricted
or taken away and the High Court has jurisdiction to admit persons
accused under the Act, to bail.

Appeal field under special law:

Where an accused is convicted under a special law and he files an appeal


to a tribunal set up under that law but there is no provision under which
the tribunal may enlarge him on bail pending the disposal of the appeal, it
will be presumed that such appellate tribunal has the power to pass
interim orders, including an order to release the convicted on bail pending
the decision of the appeal.

Chapter-IX

Nari O- Shishu Nirjaton Daman Ain, 2000

For instance, section 19 of the Naro-O Shishu Nirjaton Daman Ain, 2000
as amended in 2003, Provides for special provisions for bail. However,
there are conflicting decisions on the question as to whether prayer for
bail can be made before competent Magistrate when a person is produced
before him as an accused of an offence under this Act.
43

Majority View :-

This view is supported by as many as three judgments in the High Court


Division. In Shahid Malongi v State [ 56 DLR 279] [24 Court Division held
that although the tribunal and the High Court Division on the Code, the
power was limited and such power should be exercised subject to specific
condition and restriction mentioned in section 19 of the Ain. It has further
been held that this restricted power of bail prevails notwithstanding the
general provision of section 25 of thee Ain. Section 25 provides that in the
matter of lodging compliant, investigation,trial and disposal of a case
under the Ain, the provisions of the Code of Criminal Procedure shall apply.
Likewise in Md.Nurul Islam Babul v the State 24 BLD 205,the observations
of the High Court Division are as follows:

As regards the granting of bail case under the said Ain, the Chief
Metropoliton Magistrate has no jurisdiction to entertain the prayer of bail.
Only the Nari- O-Shishu Nirjatan Daman Tribunal can take cognization of
the offence in accordance with the provision of section 27 of the Nari-o
Shishu Nirjatan Daman Ain,2000. Therefore, we direct the chief
Metropoliton Magistrate to send the record to the Tribunal within 7 days
from the date of receipt of this order to the petitioner can appear before
the Tribunal and pray for bail.

Similarly in Didarul Hasan v State 11 BLC 436, the High Cort Division made
the following observations on the question of granting bail under the Ain:

we must make it clear that in any case under Naro-O-Shishu


Nirjatan Daman Ain, 2000 which being a special law, bail can be granted
upon hearing the information or complainant or to that effect the state, In
Nari-O-Shishu Nirjatan Daman Ain, 2000 there is no scope for granting
anticipatory bail.

Madak Drabbya Niyantran Ain, 1990:


44

The Madak Drabbya Niyantran Ain, 1990 provides for special provisions of
bail in its section 31(Ka). However, this law does not provide for any
specific forum of trail where offences under this Ain may be tried. In the
absence of any such specific provision, while considering any bail petition,
the provision of sub-section (2) of section 5 of the CrPC shall apply and on
consideration of the quantum of punishment as provided in Schedule II of
the Code under the heading OF OFFENCES AGAIST OTHERS LAWS, the
forum will be determined. So, the courts mentioned in 7 th column will be
competent to try the case and also competent to grant bail to those
persons alleged to have committed offences under the Madak Drabbya
Niyantran Ain.

CHAPTER X

DRAFTING DIFFFERENT BAIL PETITION

Bail Petition:
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IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, DHAKA.

Source: Dhanmondi Thana

Under section 54 of the Code of Criminal Procedure, 1898

IN THE MATTER OF:

State

.Prosecution

-Versus-

Shahjamal

.(Accused-Petitioner)

(In custody)

-AND-

IN THE MATTER OF:

An application for bail on behalf of the accused-petitioner.

The humble petition of the acused-petitioner most respectfully states as


follows:

1. That the petitioner is quite innocent and has been arrested by the
police out of suspicion.

2. That the accused-petitioner has been arrested on 23.03.2011 u/s 54


of the Code of Criminal Procedure, 1898 by the police in G.D. No.
613,. Date 21.04.2006 of Dhanmondi Police Station.

3. That the accused-petitioner is a renowned person in the locality. He is


the Managing Director of Athens Ltd.
46

4. That the accused-petitioner is not connected with any offence what


so every.

5. That there is no specific allegation against the accused-petitioner.

6. That the petitioner is the victim of the circumstances. There is no


claim against him.

7. That the petitioner has several houses and different business centers
in Dhaka city.

8. That there is no chance of abscond if the petitioner is released on


bail.

Wherefore, it is most humbly prayed that your honor would graciously be


pleased to enlarge the petitioner on bail on such condition as your honour
deem fit and proper law.

SHWETH:

1. That the informant-petitioner lodged the G.R. Case number 17, dated
26.02.2011 in the Dhanmondi police station of Dhaka against the
aforesaid accused person in alleging the killing of the informats
brother.

2. That the police arrested the accused person from eh place of


occurrence with a fire arms and since then he was in jail.

3. That the police submitted charge sheet against the accused persons
u/s. 302 of the Penal Code, 1860 and after accepting the Charge
sheet the case was sent to the trial court.

4. That recently the aforesaid miscreant- accused got bail from this
court and after releasing from bail threaten the informant to
withdraw the case otherwise he will kill of his family members.
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5. That the informant has lodged a G.D. in Dhanmondi Thana about the
threat of the accused and the copy of G.D. is annexed herewith as
ANNEXURE-A

6. That the accused person is now threating all the eye witnesses and
witnesses of the seizure list not to go to the court for appearing as
witnesses.

7. That recently, the accused persons has killed another man named
Kamal in Mohammadpur who is also a witness of this case.

8. That after released from bail, the accused is trying to hindrance the
whole procedure of this murder case.

9. That the accused may kill any other persons related with the case at
any time.

10. That for ends of justice the bail of the accused should be
cancelled and detained him in the custody otherwise total procedure
of this case would be frustrated.

Wherefore, it is humbly prayed that your honour would graciously be


pleased to cancel the bail of the aforesaid miscreants-accused person and
order to detain him in the custody for ends of justice.

And, for this act of kindness, the petitioner as in duty bound shall ever
pray.
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CHAPTER XI

Summary of Findings, conclusion and Recommendation

Findings:

(1) The High Court Division and the Session Judge exercise the power of
granting bail by the influence of the executive body.

(2)After the release on bail the accused try to influence illegally on the
witness.

(3)The court can not give right decision in the matter of bail because of
the illegal interfere of political leader and the corruption of the Magistrate.

(4)After granting bail for insufficient bond the accused do not attend in the
court for further trial.

(5)Women and minor get bail easily in non-bailable offence for this reason
they enter in the arena of crime more rapidly.

Conclusion:

From the above mentioned discussion it is clear that Bail matter plays a
significant role in a criminal case, because it is the ultimate goal of the
accused. Bail is the right of the party. Anyone wants a bail who is arrested
living in jail means they want a bail at any time. To set free, or deliver from
arrest, or out of custody, on the undertaking of some other person or
persons that he or they will be responsible for the appearance, at a certain
day and place, of the person bailed. When bail has been arranged, the
accused person is allowed to go free until the trail. Bail is an alternative
preventive measure to the preventive measure applied as detention
against the defendant and it is applied only in case the court has made a
49

decision about detaining the defendant. By saying bail we understand a


sum of money, securities, other valuables or, if the court permits, also real
estate, which is paid to the courts deposit account to ensure that the
accused is at the disposal of the body carrying out criminal proceedings.

An arrested person can be kept under custody no more than 72 hours.


During this time a charge shall be brought against him and if necessary
the question of choosing detention as a preventive measure shall be
determined in court. If a preventive measure is chosen regarding not
keeping the person in detention or a preventive measure is not chosen at
all, the latter is released. And if detention is chosen as a preventive
measure, the defendant has the right to file a motion about being released
on bail.

The court makes a decision about releasing the defendant on bail. When
discussing the motion made by the pre-investigation body, the
investigator or the prosecutor about detention, the court discusses also
the possibility of releasing the defendant on bail. If the terms of release on
bail are violated, the prosecutor shall apply to court with a motion to take
the bail as state income. The prosecutor can also file a motion on
substituting bail with detention.

Bail is very much important in a criminal case. So it must be delivered


by the judge with due care and deliberation.

Recommendation:

(1) (1)The High Court Division and the Session Judge should exercise
the power independently.
(2) (2)Strict monitoring mechanism should be created by the
government for the accused who will be released on bail so that
they can not influence the witness.
(3) (3)The Court should be independent in taking decision in the matter
of granting bail.
50

(4) (4)The amount of bail bond should be sufficient.


(5) (5)Minor and women should not be given scope to enter in the arena
of crime. The government should provide strong monitoring system
for them.

BIBLIOGRAPHY :

Books:

1. Halim Abdul The text Book on Criminal Procedure, Fifth Edition,


(Dhaka: Shams Publications, 2006)

2. Mitra, B. B. The Code of Criminal Procedure, Third Edition, (Calcutta:


Eastern Law House, 2002)

3. Sikder M. Answer Uddin, The Code of Criminal Procedure, Second


Edition, (Dhaka: A. Akhter Traders, 2003)

4. Islam md. Zahurul, The Code of Criminal Procedure, Third Edition,


(Dhaka: Mullick Brothers, 1986)

5. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 17th Edition,


(Calcutta: Wadhwa & Company (Pvt.) Ltd, Reprint 2006)

6. Huq Zahirul, Law and Practice of Criminal Procedure, Fifth Edition,


(Dhaka: Subarna Publication, 1987)

Website:

1. www.definitionofbail.com

2. www.groundofbail.com
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3. www.typeofbailbd.com