Bail Process in Myanmar

In the contemporary society, the bail determines whether an individual may return home
while in trial or remain in custody, with or without conditions. Bail is a critical aspect of the rule
of law and is an example for the reflection of the presumption of the innocence which is
considered as the right to fair trial principles. The primary principles which underpin bail
legislation around the state include the presumption of Innocence are the part of the framework
of the rule of law. Therefore, the bail process must uphold these principles to ensure the fair and
the just legal system. In granting the bail, the role of presumption of innocence plays the pivotal
role. For the bail process, the rules shall have to be in accordance with section 496 and section
497 of the Code of Criminal Procedure, 1898. According to section 4(1) (a) of the Code of
Criminal Procedure, the bail able offence is an offence shown in the second schedule, or which is
made bail able by any other law, of the time being in force; and non-bail able offence means any
other offence.

In the case of Hussain Bux Khan v. The Union of Burma, the Burma Law Reports,
1960, p-192, the principle to be deduced from section 496 and 497 of the Criminal Procedure
Code is that the grant of bail is the rule and the refusal is an exception and as an accused is
presumed under the law to be innocent until his guilt is proved, he should be released on bail
during the pendency of the case against him unless he is likely to influence or intimidate the
witnesses for the prosecution or is likely to abscond if bail is granted to him. In this case, the
doctrine of presumption of innocence plays as a role for the grant of bail.

According to section 497 (1) of the Criminal Procedure Code, the accused shall not be
released if there appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or with transportation of life or with imprisonment for life or with
imprisonment for a term of unlimited period or with imprisonment for a term of 20 years as
provided in the relevant law. However, this section empowers the court to grant the bail to the
person under the age of 16 years or any woman or any sick or infirm person accused of such
offence.

In the case of the Union of Burma v. U San Khin, 1965, BLR, 488, it was deducted that
the evidence was not sufficient enough to determine whether he committed the offence under
section 409 of the Penal Code and the plaintiff could not prove the commission of the offence of
the accused, therefore, the burden of proof lies upon the plaintiff and the presumption of
innocence plays the important role to release the accused on bail. In the case of Kyaw Myint
Than vs. The Union of Myanmar and 4, 2013, p-1, it was found that the defendants being the
woman and the guardians of the minors and one of the defendants being the man who was at the
age of 60. Thus, it was held that the District Court granting the bail on them seems to be correct.

According to section 497(2) of the Criminal Procedure Code, if it appears 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-bail able offence but
there are sufficient ground, 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. The section 497 (4)
provides that if at any time after the conclusion of the trial of a person accused of a non-bail able
offence and before judgement is delivered, the Court is of opinion that the reasonable grounds
for believing that the accused is not guilty of any such offence, it shall release the accuse, if he is
in custody, on the execution by him of a bond without sureties for his appearance to here
judgement delivered. These sections allow the accused to be released on the execution by him of
a bond without sureties during the inquiry.

According to section 497 (3) of the Criminal Procedure Code, 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 reason for so doing. In the case of The Union of Myanmar vs. Naw Taung 1992 Myanmar
Law Reports, 33, it was held that the judge omitting to record for his doing was said to be
disregardful or negligent. So, the order from subordinate court for releasing on the execution by
the accused of a bond was cancelled and he was to be rearrested.

According to section 497(5) of the Criminal Procedure Code, the Supreme Court or the
High Courts of the Region or The High Courts of the States or the Courts of Sessions 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 in custody. According to section 498 of the
Criminal Procedure Code, the Supreme Court of the Union or the High Courts of the Regions or
the High Courts of the States or the Courts of Sessions may in any case whether there be an
appeal on conviction or not, direct that any person be admitted to bail, or that the required by a
police officer or Magistrate be reduced.

In the case of U Ohn Kyaw, Maung Saw Maung and one and Maung Ba Sein v. The
Union of Burma, 1962, Burma Law Reports, p-511, it was deducted that there is no provision
in section 498 of the Code of Criminal Procedure which empowers a Session Judge to cancel the
bail granted by himself. It only gives discretionary power to the Court of Session to grant bail or
to reduce the amount of the bail required by the Magistrate or Police. Under clause (5) of section
497 of the Code of Criminal Procedure, only the High Court or the Court of Session or the trial
court can order re-arrest of a person who has been released under section 497. The power
conferred by section 497(5) to cancel the bail is expressly limited of cases in which accused has
been released under section 497 and the provisions of Clause (5) of section 497 have no
application to an accused person who has been released under section 498.

In case of granting bail for the offences under Special Laws, if the offences are
punishable with death, transportation or imprisonment for life or imprisonment for a term of
unlimited period or imprisonment for 7 years or upwards, the offences are said to be non-bail
able offences. If the offences are punishable with imprisonment for 3 years and upwards but less
than 7 years except in cases under the Arms Act, section 19 which shall be bail able, are not bail
able offences. If the offences are punishable with imprisonment for 1 year and upwards but less
than 3 years are said to be bail able. If the offences which are punishable with imprisonment for
less than 1 year or with fine only shall be deemed to be bail able offences.

For the Juvenile Offences, the provisions for granting bail to the child offenders are
provided in section 83 (c) and section 83 (e) of the Child Rights Law, 2019. The Juvenile Court
may entrust the child sent up for prosecution to the care of parents or guardians or temporary
care center or shelter or any other appropriate place upon the execution of a bond for good
behavior subject to conditions. The Juvenile Court shall not pass a detention order to the child
either in a police custody or prison under any reason. The Special Laws may influence the
General Law like the Code of Criminal Procedure.