Q. What is meant by BAIL BEFORE ARREST? Discuss the Law and ground provided in Cr. PC for grant of Bail.

(A/22)
Q. Ballable and non-ballable offences [SHORT] (A/21)
Q. What is meant by Ball? Disscus dlfferent grounds of granting bail in non-bailable offences? (A/21)
Q. What is meant by Bail before arrest? Discuss the law provided in Cr.PC for grant of such bail. (A/20)
Q. Bail can be granted even in non-bailable cases. Enlist the exceptions (S/19)
Q. Bail can be granted even in non-bailable cases. Enlist the exceptions (S/18)
Q. What is mean by Bail? Whether it can be CLAIMED AS A MATTER OF RIGHT IN A NON-BAILABLE OFFENCE?
(A/18)
Q. What do you understand by the term “Bail before arrest”? Explain the legal provisions relating to grant of bail before arrest
under Cr.PC? (S/17)
Q. What is meant by Bail? Whether it can be CLAIMED AS A MATTER OF RIGHT IN A NON-BAILABLE OFFENCE?
Also discuss different grounds for grant of such bail. (A/16)

BAIL
1. INTRODUCTION

The law of bail occupies an important place in the administration of criminal justice. “Bail” is the release
of an accused person from the custody of police and delivery into the hands of sureties, who undertake to
produce him before a Court. The definition of bail has not been provided in the code of criminal
procedure. It is merely a way of freedom of a person officially or legally under arrest and in custody.

The essential idea of bail is discharging a person from the custody of law enforcement authority and
convey him into the hand of sureties. The sureties must undertake to provide him at any time when the
need is raised (2007 YLR 1582).

2. RELEVANT PROVISIONS

Section 496

Section 497

Section 498

Section 499

Section 500

Section 501

Section 502

Section 426

3. CROSS REFERENCE

Article 4 and Article 10 of the Constitution of Pakistan

4. MEANING OF BAIL

“To set free a person who is under arrest, detention or under some kind of restraint by taking security for
his appearance”.

5. DEFINITION OF BAIL

In accordance with Wharton's law Lexicon bail is to

“Release a person who was detained or in imprisoned and take security in order to produce him.”

6. CONCEPT/ EXPLANATION OF BAIL

The concept of bail emerges from the conflict between the police power to restrict the liberty of a
man who is alleged to have committed a crime and the presumption of innocence of the accused
person. Man has the inherent right to be presumed innocent until proven guilty, he is entitled to
freedoms enjoined through law by virtue of his innocence. Bail is the medium through which such
freedoms of law are materialized.

7. HISTORICAL EVALUATION OF THE CONCEPT OF BAIL

The concept of bail has had a long history and deep roots in English and American Law.

In medieval England, the custom grew out of the need to free untried prisoners from disease ridden
jails, while they were waiting for the delayed trials conducted by travelling justices.

8. OBJECT OF BAIL

The object of bail is that as an accused person is presumed to be innocent until proven guilty, therefore it
is his right that he may liberally defend the allegations levelled against him and pursue his case. He
is entitled to freedoms enjoined through law by virtue of his innocence. Bail is the medium through
which such freedoms of law are materialized.

9. KINDS OF BAIL

I. BAIL AFTER ARREST

It is the bail which is granted to the accused person after hi arrest, both in bailable and non-bailable
cases. When the accused has been arrested by law enforcing agencies, bail may be granted to him
under Section 497.

II. BAIL BEFORE ARREST

Granted where the Court is of the opinion that perhaps accused has been falsely involved in the
case and he is likely to suffer irreparable injury to his dignity, honor or reputation if he is
arrested

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III. BAIL AFTER CONVICTION

It is granted when after conviction of accused, the appeal has been accepted for hearing and the
Court observes that there are grounds for the release of the accused, therefore, accepts the bail
petition and allows bail also under Section 426.

IV. PROTECTIVE BAIL

Granted to accused to enable him approach the concerned court of other provinces for the purpose of
obtaining pre-arrest bail without touching its merits.

10. SITUATIONS WHERE BAIL WILL BE DECLINED

Bail will be declined only in extraordinary and exceptional cases, namely;-

I. Likelihood of absconding of accused

II. Apprehension of the accused tampering with prosecution evidence
III. Danger of the offence being repeated if the accused is released on bail
IV. Accused is a previous convict

BAIL IN BAILABLE OFFENCES U/S 496

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1. DEFINITION OF BAILABLE OFFENCES SECTION 4 (B)

According to Section 4(b) of Cr.PC,

'Bailable offence' means an offence shown as bailable in the second schedule, or which is made
bailable by any other law for the time being in force;

2. WHEN ACCUSSED MAY BE RELEASED ON BAIL IN BAILABLE OFFENCES

The conditions for grant of bail to accused in bailable offence are as follows,

(i) He is accused of bailable offences under Schedule II, CrPC

(ii) He is arrested without warrant by an officer in charge of a Police Station
(iii) He is detained without any warrant by an officer in charge of a Police Station
(iv) He appears before Court in answer to process issued by Court
(v) He is brought before Court by police or by some other arresting authority
(vi) He is prepared to give bail at any time while in the custody of such officer or any stage of the
proceeding before the Court.

3. EXECUTION OF BOND

The court or an officer in charge of a police station, may discharge the accused from the case if the
accused executes a bond for appearance before the Court till decision of the case.

4. EXCEPTION

Any person who is detained under Section 107(4) or 117(3) does not come within the purview and not
entitled to bail under section 496

5. REQUIREMENT OF APPLICATION IN BAILABLE OFFENCES

There is no requirement to make an application for grant of bail in bailable offences. Accused who is
produced before the Magistrate may be release without any application.

6. COMPETENT AUTHORITY TO GRANT BAIL

Court or officer in charge of Police Station.

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7. GRANT OF BAIL TO A PERSON COMPLAINED OF

The provisions of Section 496 are wide enough to cover the case, not only of an accused person, but also
of a “person complained against” who is present before court, although he may not have been hauled up
as an accused person.

8. WHEN BAIL MAY BE GRANTED

I. BY OFFICER INCHARGE OF POLICE STATION

When he is placed under actual custody of such officer. An improper refusal to do so will amount to
a violation of duty.

II. BY COURT

When he is in the custody of the police or when he is brought before the Court at any stage of the
proceedings even after the commencement of trial

9. AMOUNT OF SECURITY FOR BAIL

Should not be excessive, security demanded should be in accordance with the position occupied in the
society by such accused.

10. CONDITIONAL GRANT OF BAIL

Court has no authority to impose any condition except demanding of security with sureties.

11. CANCELLATION OF BAIL

In the case of bailable offences (section 496) the person accused has the indefeasible right to the
grant of bail subject of course to sureties being offered, if sureties are considered necessary.

There is admittedly no provision in the Code permitting cancellation of such a bail.

If, of course, the person enlarged on bail suborns witnesses there may be other remedies at law open
against him, e.g. contempt proceedings or conceivably even proceedings to bind him over to keep the
peace or be of good behavior in certain circumstances.

12. BAIL IN BAILABLE OFFENCES, A RIGHT

Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a
precious asset to be preserved undiminished.

13. EFFECT OF GRANT OF BAIL

Once a court admitted a person to bail then that person would cease to be in the custody of the Jail
Authorities and was in the custodian legis of the court. There should be no delay in giving effect to
bail order'

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 BAIL IN NON BAILABLE OFFENCES U/S 497

1. DEFINITION OF NON-BAILABLE OFFENCES U/S 4(B)

Non-bailable offence' means any other offence other than those mentioned in second schedule or those
which are made bailable by any other law for the time being in force.

2. BAIL IN NON-BAILABLE OFFENCES NOT A RIGHT, BUT A CONCESSION

Bail in Non-Bailable Offences is a concession which is right of an accused person within the parameters
of law, Criminal law is based on the dictum that everyone is innocent until proven guilty by a court of
law.

3. ANALYSIS OF SECTION 497

Analysis of section 497 Cr.P.C. as it exists in its present form, brings int light the following details of
concession, rights or discretions attached with the grant or bail:

i) Accused shall not be released if there appear reasonable grounds for believing that the accused
has been guilty of an offence punishable with death or imprisonment for life or imprisonment for
ten years
ii) No one will be released on bail without giving notice to prosecution (Second Proviso)
iii) Release of an accused on bail has become a statutory right after the expiry of specified period.
(Third Proviso)
iv) A hardened, dangerous criminal or a terrorist shall not be released on bail under the third proviso
(Fourth Proviso)
v) Accused may be released on bail by use of judicial discretion by the Court by invoking first
proviso to sub-section (1) of section 497, Cr.P.C.
vi) Although first proviso to section 497(1), Cr.P.C. provides certain exceptions yet their invocation
by the Courts may not be justified in the cases of those accused person falling the trap of fourth
proviso.

4. GROUNDS FOR BAIL IN NON-BAILABLE OFFENCES

The grounds for bail in non-bailable. offences are as follows;

i) Any person who is accused of non-bailable offence may be released on bail if he is arrested without a
warrant by an officer incharge of a police station
ii) Any person who is accused of non-bailable offence may be released on bail if he is detained without
a warrant by an officer incharge of police station
iii) Any person who is accused of non-bailable offence may be released on bail if he himsel appears
before the Court.
iv) Any person is accused of non-bailable offence may be released on bail it he is brought before the
Court forcibly.

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5. NOTICE TO PROSECUTION

Person accused of an offence punishable with death or life imprisonment or imprisonment up to 10 years
shall only be released on bail where a notice to show cause has been issued to the prosecution under
section 497

6. CIRCUMSTANCES WHERE BAIL SHALL BE GRANTED U/S 497(2)

Where it appears that there are no reasonable grounds for believing that the accused has committed a
non-bailable offence, but there are sufficient grounds for further inquire, the accused shall be released
on bail by police officer or by court or on execution of bond without sureties for his appearance..

7. CIRCUMSTANCES WHERE BAIL SHALL NOT BE GRANTED

A person shall not be released on bail where there will appear sufficient grounds for believing that he has
been guilty of an offence which is punishable with

(i) death;
(ii) imprisonment for life: or
(iii) imprisonment for ten years.

8. MEANING OF THE TERM ‘REASONABLE GROUNDS’

Actual test for grant or refusal of bail rests in availability of “reasonable grounds”.

Reasonable grounds mean grounds which appeal to a reasonable and prudent man.

Where reasonable grounds do not, prima facie, seem to exist, then there may be grounds for further
inquiry as envisaged under S. 497(2) Cr.P.C.

9. HARDENED, DESPERATE OR DANGEROUS CRIMINAL OR INVOLVED IN TERRORISM

In order to determine whether a person is a hardened or dangerous criminal, the Court may. Take the
following factors into consideration

i) The nature of the accusation and conduct of accused at the time of alleged incident.
ii) Previous record of the accused which may include his earlier prosecution.
iii) The material before the Trial Court and with the Investigation Agency and also the reports of police
and jail authorities

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10. PERSON WHOM THE COURT MAY DIRECT TO BE RELEASED ON BAIL

The Court may direct that following persons should be released on bail:

i) person under the age of 14 years;

ii) women whether she is pardanashin of otherwise;
iii) sick or infirm person.

11. RECORDING OF REASON

Section 497(3) requires the officer of a police station or a Court releasing any person on bail to
record in writing his reason doing so. Such an order must be speaking order showing application of
mind by Court. Justice should not only be done but should be seen to have done.

12. POWER OF TRIAL COURT ON CONCLUSION OF TRIAL AND BEFORE JUDGMENT

Section 497(4) has empowered the. Trial Court on conclusion of trial and before judgment and on the
basis of reasonable grounds that there are ground to believe that the accused is not guilty of the
offence charged to release him on his execution of bound without sureties for his appearance to hear
the judgment to be delivered.

13. CANCELLATION OF BAIL

Bail may be cancelled by the High Court or the Court of Session and also by the Court itself which
granted it if further evidence is produced for believing the accused to be guilty.

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 BAIL BEFORE ARREST/ PRE-ARREST BAIL U/S 498

1. INTRODUCTION

2. RELEVANT PROVISIONS

Section 498 of Criminal Procedure Code

3. MEANING OF BAIL

“To set free a person who is under arrest, detention or under some kind of restraint by taking security for
his appearance”.

4. MEANING OF BAIL BEFORE ARREST

Bail before arrest is a bail which is granted in a case where Court feels perhaps accused has been falsely
involved in the case and he is likely to suffer irreparable injury to his dignity, honour or reputation.

5. OBJECT OF BAIL BEFORE ARREST

The object of bail before arrest is to save innocent persons from being unnecessarily harassed due to
their arrest in the cases instituted against them with the ulterior motive.

6. COURT HAVING POWER TO GRANT BAIL BEFORE ARREST

Section 498 Cr.P.C empowers Court of Sessions and High Court to grant pre-arrest bail in case of
exceptional nature but such power has to be exercised when pre conditions laid down by the Superior
Court are satisfied.

7. CONDITIONS FOR BAIL BEFORE ARREST

In order to make out the case of bail before arrest the following conditions are to be satisfied:

i) Arrest being for ulterior motive, such as humiliation and unjustified harassment.
ii) Prosecution motivated to cause irreparable injury to reputation and liberty and
iii) Motivation of police on political consideration.

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8. PRINCIPLES OF GRANT OF BAIL BEFORE ARREST

The general principles of bail before arrest are summarized as follows.

(I) APPREHENSION OF IMMINENT ARREST:

That there should be genuine reasonable apprehension of imminent arrest within the effect of
virtual restraint of the petitioner.
(II) PHYSICALLY SURRENDER TO THE COURT:

That the petitioner should physically surrender to the Court.

(III) APPREHENSION OF HARASSMENT AND UNDUE IRREPARABLE HUMILIATION:

That on account of ulterior motives, particularly on the part of the police there should be
apprehension of harassment and undue irreparable humiliation by means of unjustified arrest.

(IV) A FIT CASE ON MERITS:

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 Sections 497 and 498,
Cr. P.C. would have to be kept in mind.

(V) RELIEF U/SEC. 498, CR.P.C.:

That unless there is reasonable explanation, the petitioner should have moved the Sessions Court
for the same relief u/s. 498. Cr.P.C.

9. CASES WHERE BAIL BEFORE ARREST IS GRANTED

In the following cases bail before arrest is granted:

i) where the case prima face is false;

ii) where the involvement of accused is actuated by malice
iii) where the aim of the complainant is to humiliate the otherwise respectable accused and to cause
irreparable injury to his reputation and liberty;
iv) where the case is politically motivated.

10. CASES WHERE BAIL BEOFRE ARREST NOT GRANTED

Bai before arrest cannot he granted in the following cases:

i) Where there is likelihood of abscondence of the accused

ii) Where there is apprehension of accused tampering with the prosecution evidence:
iii) Where there is danger of the offence being repeated if the accused is released on bail:
iv) Where the accused is habitual offender;
v) Where the accused is previous convict.

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11. BAIL BEFORE ARREST IN BAILABLE OFFENCES

May Be Granted

12. BAIL BEFORE ARREST IN NON-BAILABLE OFFENCES

Bail before arrest is not allowed where prima facie offence is punishable with death or life
imprisonment or imprisonment for 10 years. However, in other offences which Are not punishable
with death or life imprisonment or imprisonment for 10 years it may be allowed.

13. CONDITIONAL ORDER OF BAIL BEOFRE ARREST

There is no in built provision in the Code which empowers Court to attach conditions to bail grant
order. In absence of a specific bar in the Code in this context, Court may pass conditional bail before
arrest order with a view to guard against repetition of offence or perpetuation of immorality

14. BAIL BEFORE ARREST WHERE NO CASE IS REGISTERED

Section 498-A provides in specific terms that no bail can be granted to a person against whom no
case is registered.

15. SURRENDER TO COURT

Privilege of pre-arrest can only be availed by a person who surrenders before the. Court. Save in rare
and exceptional circumstances, Courts, always insist upon the Physical personal appearance.

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