A General Study on Bail under the Crpc and other laws
A GENERAL STUDY ON BAIL UNDER THE CRPC AND OTHER LAWS
INTRODUCTION
The concept of bail emerges from the
conflict between the ‘police power’ and to restrict the liberty of a man
who is alleged to have committed a crime and the presumption of
innocence in his favour. ‘Bail’ is derived from the old French verb
‘baillier’ meaning to ‘give or deliver’. Bail in English Common law is
the freeing or setting at liberty a person arrested or imprisoned on
security or on surety being taken for his appearance on certain day and
place named. In other words, bail is the delivery of arrested person to
his sureties upon their giving security for his appearance at a
designated place and time, to the jurisdiction and judgment of the
court. The surety is termed ‘bail’ because the person arrested or
imprisoned is placed in the custody of those (surety) who find
themselves or become bailer for his due appearance when required. Surety
must be those persons who have authority to bail the arrested person to
appear before the court on a certain date. It is upon the bonds of
those sureties that the person arrested or imprisoned is bailed, i.e.,
set at liberty until the day appointed for his appearance. The effect of
granting bail is not to set the prisoner free from jail or custody, but
to release him from the custody of law and to entrust him to the
custody of his sureties who are bound to produce him to appear in the
court at a specified time and place. The necessary corollary is that it
is open to the sureties to seize the prisoner at any time and any
discharge themselves by handing him over to the custody of law and the
result would be that he (the prisoner) would be then
imprisoned.<href=”#_ftn1″ name=”_ftnref1″ title=””>[2]
GENERAL CONCEPTION
2.1 History of Bail
Bail laws in the United States grew out
of a long history of English statutes and policies. During the colonial
period, Americans relied on the bail structure that had developed in
England hundreds of years earlier. When the colonists declared
independence in 1776, they no longer relied on English law, but
formulated their own policies which closely paralleled the English
tradition. In attempting to understand the meaning of the American
constitutional bail provisions and how they were intended to supplement a
larger statutory bail structure, knowledge of the English system and
how it developed until the time of American independence is essential.
In medieval England, methods to insure
the accused would appear for trial began as early as criminal trials
themselves. Until the 13th century, however, the conditions under which a
defendant could be detained before trial or released with guarantees
that he would return were dictated by the local Sheriffs. As the
regional representative of the crown, the sheriff possessed sovereign
authority to release or hold suspects. The sheriffs, in other words,
could use any standard and weigh any factor in determining whether to
admit a suspect to bail. This broad authority was not always judiciously
administered. Some sheriffs exploited the bail system for their own
gain. Accordingly, the absence of limits on the power of the sheriffs
was stated as a major grievance leading to the Statute of Westminster.
The Statute of Westminster in 1275 eliminated the discretion of
sheriffs with respect to which crimes would be bailable. Under the
Statute, the bailable and non-bailable offenses were specifically
listed. The sheriffs retained the authority to decide the amount of bail
and to weigh all relevant factors to arrive at that amount. The Statute
of Westminster remained the primary definition of what offenses would
be eligible for bail. The Statute, however, was far from a universal
right to bail. Not only were some offenses explicitly excluded from
bail, but the statutes’ restrictions were confined to the abuses of the
sheriffs.
In 1677 British Parliament passed the Habeas Corpus Act.
The act strengthened the guarantee of habeas corpus by specifying that:
A magistrate shall discharge the prisoner from his imprisonment taking
his or their recognizance, with one or more surety or sureties, in any
sum according to their discretion, having regard to the quality of the
prisoner and nature of the offense. Although the Habeas Corpus Act
improved administration of bail laws, it provided no protection against
excessive bail requirements. Even if a suspect was accused of a bail
able offense and therefore was entitled to some bail, he could still be
detained if the financial condition of release was exorbitantly high. As
evidence of this abuse reached parliament, it responded with the
English Bill of Rights of 1689. The language of the English Bill of Rights
was only one part of the bail system developed through many years of
English law. English law never contained an absolute right to bail. Bail
could always be denied when the legislature determined certain offenses
were unbailable. In colonial America, bail law was patterned after the
English law. While some colonies initiated their own laws which were
very similar to English statutes, others simply guaranteed their
subjects the same protections guaranteed to British citizens.
2.2 Meaning of Bail
Bail is a security given for the due
appearance of a person arrested or imprisoned to obtain his or her
temporary release from legal custody or imprisonment.<href=”#_ftn2″
name=”_ftnref2″ title=””>[3] In common law, an accused person is said
to be admitted to bail, when he or she is released from the custody of
the officers of court and is entrusted to the custody of persons known
as his or her sureties who are bound to produce him or her at a
specified time and place to answer the charge against him or her and who
in default of so doing are liable to forfeit such sum as is specified
when the bail is granted.<href=”#_ftn3″ name=”_ftnref3″
title=””>[4] Wharton’s Law Lexicon explains ‘bail’ as:
To set at liberty a person arrested or
imprisoned on security being taken for his or her appearance on a day
and a place certain, which security is called bail, because the party
arrested or imprisonment is delivered into the hands of those who bind
themselves or become bail for his or her due appearance when required in
order that he or she may be safely protected from prison, to which they
have, if they fear his or her escape etc, the legal power to deliver
him or her.<href=”#_ftn4″ name=”_ftnref4″ title=””>[5]
Hence, the tradition and logical
conception of bail in forensic phraseology means release of a person
from custody or prison and deliver into the hands of sureties who
undertake to produce him or her in court upon an appointed
day.<href=”#_ftn5″ name=”_ftnref5″ title=””>[6] In criminal law,
‘bail’ means to set free, liberate or deliver the accused from arrest or
out of custody, to the keeping of other persons, on their undertaking
to be responsible for his or her appearance at a certain day and place
to answer to the charge against him or her. These persons are called his
or her sureties.
2.3 Definition of Bail
According to the Cambridge Advanced Dictionary (3rd
ed.), asum of money which a person who has been accused of a crime,
pays to a law court so that they can be released until their trial. The
payment is a way of making certain that the person will return to court
for trial.
Bail is the money a defendant pays as a
guarantee that he or she will show up in court at a later date. For most
serious crimes a judge or magistrate sets bail during an arraignment,
or in federal court at a detention hearing.
For minor crimes bail is usually set by a
schedule which will show the amount to be paid before any court
appearance (arraignment). For more serious crimes, the amount of bail is
set by the judge at the suspect’s first court appearance. The purpose
of bail is to guarantee the scheduled appearance of the defendant in
court. While the Constitution guarantees the right to reasonable bail, a
court may deny bail in cases charging murder or treason, or when there
is a danger that the defendant will flee or commit mayhem. In some
traffic matters the defendant may forfeit the bail by non-appearance
since the bail is equivalent to the fine.
2.4 Object and Purposes of Bail
The object of keeping an accused person in detention prior to, or during the trial is not punishment but
(i) To prevent repetition of offence with which he is charged; and
(ii) To secure his attendance at the trial.
However, every criminal proceeding is based on a prima facie
assumption of guilt and again there is a presumption of innocence in
favour of the accused of the accused. Bail serves the purpose of
presumption of innocence. And at the same time, the conditions of bail
like appearance in the court on fixed date and time serves the purpose
of prima facie assumption of guilt against the accused. There are
varieties of purposes behind granting a bail. This may be, for example,
for appearance before a court, for presenting appeal; pending reference
or revision; or for the purpose of giving evidence etc.
2.5 Categories of bail
Provisions as regards bail can be broadly classed into two categori
(1) Bailable cases, and
(2) Non- bailable cases.
In the former class, the grant of bail
is a matter of course. It may be given either by the police-officer in
charge of a police-station having the accused in his custody or by the
Court. The release may be ordered on the accused executing a bond and
even without sureties. In non-bailable case, the accused may be released
on bail: but no bail can be granted where the accused appears on
reasonable grounds to be guilty of an offence punishable either with
death or with imprisonment for life. But the rule does not apply to (i) a
person under sixteen years of age, (ii) a woman, or (iii) a sick or
infirm person. As soon as reasonable grounds for the guilt cease to
appear, the accused is entitled to be released on bail or on his own
recognizance; he can be also released, for similar reasons, between the
close of the case and delivery of the judgment. When a person is
released on bail, the order with reasons therefore should be in writing.
A person released on bail may be taken into custody by order if the
Court. In the same way the High Court or the Court of Session may admit a
person to bail or reduce the amount of the bail. As soon as the bail
bond is executed, the accused is entitled to be released from custody.
When the amount of bail taken td found to be insufficient, the Court may
demand additional bail. A surety who is once accepted is at liberty to
apply to the Court for his discharge; and the accused is then called
upon to find fresh sureties. In case of non-bail able offence bail may
be given by the following name and circumstances:
- Anticipatory Bail (before arrest)
- Interim or Ad-interim Bail
- Bail after conviction
i. Anticipatory Bail (before arrest)
When a person is granted bail in
apprehension of arrest, this is called anticipatory bail. This is an
extra-ordinary measure and an exception to the general rule of bail.
When any person has reason to believe that he may be arrested on an
accusation of having committed a non-bail able offence, he may apply to
the High Court Division or the Court of Session for a direction and the
court may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail. There is no section or provision which
specifically authorizes the court to grant an anticipatory bail.
However, application is made under sec. 498 of the CrPC for an
anticipatory bail. This is because of the wording in the section, “in
any case”. Thus the power given in this section is very wide and can be
exercised by both the High Court Division and the Court of Session in
any case without any limitation.<href=”#_ftn6″ name=”_ftnref6″
title=””>[7]
ii. Interim or Ad-interim Bail
There is no express legal provision of
ad-interim or interim bail. However, this kind of bail may be granted at
any stage of a case by way of court’s inherent power. If the case is
pending in the Magistrate Court, application for such a bail will have
to be filed in the Sessions Court under section 497 of CrPC and if the
case is in the Sessions Court, application will go to the High Court
Division against the order of the Sessions Court.
iii. Bail after conviction
The Section 496 and 497 have no
application where a person has been tried and convicted even though the
conviction is for bail able offence. Section 496 and 497 are in terms
confined to accused person and a person after conviction cases to be an
accused. Sections 426 and 435 of CrPC would be relevant for bail after
conviction. Bail after conviction may be of two types:
- Bail pending appeal under section 426 and 498 ; and
- Bail pending revision under section 435.<href=”#_ftn7″ name=”_ftnref7″ title=””>[8]
The discretionary power of the Court to
admit to bail is not arbitrary, but is judicial, and is governed by
established principles. The High Court of Bangladesh directed that when a
particular person surrenders and makes an application for bail, it
should be considered the same day. However, if it has to be adjourned,
the applicant should be directed to appear on the date fixed with a
further direction to the police not to arrest him till disposal of his
bail application. But it does not mean that the bail application should
be allowed invariably. It may also be dismissed. Short term release or
keeping good conduct during that period shall not be the sole ground for
enlarging a person on bail finally.
It should be decided on merits alone.
The object of the detention of the accused being to secure his
appearance to abide the sentence of law, the principal inquiry, Courts
have considered the seriousness of the charge, the nature of the
evidence, the severity of the punishment prescribed for the offence and,
in some instances, the character, means and standing of the
accused.<href=”#_ftn8″ name=”_ftnref8″ title=””>[9]
Chapter 3
BAIL UNDER THE CODE OF CRIMINAL PROCEDURE
In the CrPC the term ‘Bail’ has not been
defined but has been used sometimes singly and more often it has been
used in juxtaposition with other terms which are as follows: ‘bail’,
‘security for bail’, ‘bond with surety’ and so on.<href=”#_ftn9″
name=”_ftnref9″ title=””>[10] Chapter XXXIX of the Code of Criminal Procedure, 1898 (Act No. V) deals several sections related to Bail in the following way-
Bail in bailable offence (Section 496)
Section 496 of the Code of Criminal Procedure, 1898
describes when bail is to be taken. The section state as, “when any
person other than a person accused of a non-bailable offence is arrested
or detained without warrant by an officer-in-charge of a police
station, or appears or is brought before a Court, and is prepared at any
time while in the custody of such officer or at any stage of the
proceedings before such Court to give bail, such person shall be
released on bail; provided that such officer or Court, if he or it
thinks fit, may, instead of taking bail from such person, discharge him
on his executing bond without securities for his appearance as
hereinafter provided: Provided further that nothing in this section
shall be deemed to affect the provisions of section 107, sub section (4)
or section 117, sub-section (3).
Bail in Non-bailable Offence (Section 497)
Section 497 of the CrPC states about
power to direct admission to bail or reduction of bail. The amount of
every bond executed under this Chapter shall be excessive; and the High
Court Division or Court of Sessions may, in any case, whether there be
admitted to bail, or that the bail required by a police officer or
magistrate be reduced.According to the section 497 of the CrPC, (1) when
any person accused of the any non-bailable offence is arrested or
detained without warrant by an officer-in-charge of a police-station. Or
appears or is brought before a Court, he may be released on bail, but
he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
transportation for life:
Provided that the Court may direct that
any person under the age of sixteen years or any women or any sick or
infirm person accused of such an offence be released on bail.
(2)If it appears to such officer or
Court at any stage of the investigation, inquiry or trail, as the case
may be, that there are not reasonable grounds for believing that the
accused has committed a [non-bailable offence], but that there are
sufficient grounds for further inquiry into his guilt the accused shall
pending such inquiry, be released on bail, or, at the discretion of such
officer or Court, on the execution by him of a bond without sureties
for his appearance as hereinafter provided.
(3) An officer or a court releasing any
person on bail under sub-section (1) or sub-section (2) shall record in
writing his or its reasons for so doing.
(4) if at any time after the conclusion
of the trial of a person accused of a non-bailable offence and before
judgment is delivered, the Court is of opinion that there are reasonable
grounds for believing that 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 b itself, any other Court
may person who has been released under this section to be arrested may
commit him to custody “Save in accordance with law” as mentioned in
Article 32 not only refers to criminal law but also civil law which
provides for arrest and detention, namely, for recovery of decrial dues
and public dues.
Section 497 of the Code of Criminal
Procedure is a procedural law and the accused having alleged to have
committed a substantive offence of murder his liberty is curtailed.
Anticipatory Bail (Section 498)
Section 498 of the Code of Criminal Procedure, 1898 states
about the ‘Power to direct admission to bail or reduction of bail’. The
section states, The amount of every bond executed under this Chapter
shall not be excessive; and the High Court Division or Court of Sessions
may, in any case, whether there be an appeal on convection or not,
direct that any case, whether there be an appeal on conviction or not,
direct that any person be admitted to bail, or that the bail required by
a police-officer, or Magistrate be reduced.
A Member of Parliament being enlarged on
bail cannot avoid appearance before the trial Court simple on the plea
that the Parliament is in session.<href=”#_ftn10″ name=”_ftnref10″
title=””>[11]The question of granting or refusing bail depends upon
the particular circumstances of each case and the mere fact that an
offence is punishable with death or life imprisonment is not by itself
sufficient to refuse bail.<href=”#_ftn11″ name=”_ftnref11″
title=””>[12]
The grant of bail is the discretion of
the court and the Court could consider the exercise of discretion if it
is satisfied in the facts and circumstances of the case that the trial
cannot be concluded within the specified time.<href=”#_ftn12″
name=”_ftnref12″ title=””>[13]
The apprehension that there is
possibility on the part of the petitioner to interfere with the process
of investigation and of tampering with the evidence has got no basis at
all. The attending circumstances shown the petitioner deserve
bail.<href=”#_ftn13″ name=”_ftnref13″ title=””>[14]
The deceased was killed in her husband’s
house and naturally he was then her best custodian and he is supposed
to know the cause of her death, but the story narrated in the UD Case
which was ended in the final report creates presumption about the
implication of the husband in the occurrence. Moreover, there is no
cause to consider the prayer for his bail in the light of the decision
referred which was given in an appeal.<href=”#_ftn14″
name=”_ftnref14″ title=””>[15]Non-compliance of direction of High
Court Division by the Court below as to conclusion of trial of the case
within 4 months will not create any right to the accused Harun to be
entitled to get bail disregarding the allegation of overt act against
him. Court of law must act upon materials on record to decide the
question of granting or non granting of bail.<href=”#_ftn15″
name=”_ftnref15″ title=””>[16] As the petitioner has no forum to
surrender at this stage and police is after him the accused-petitioner
is enlarged on anticipatory bail for limited period till submission of
police report.<href=”#_ftn16″ name=”_ftnref16″ title=””>[17]
Bail Bond and Surety (Section 499)
Section 499 of the Code of Criminal Procedure, 1898 provides that provision bonds of accused and sureties which is following under,
(1) Before any person is released on
bail or released on his own bond, a bond for such sum of money as the
police-officer 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 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 officer or Court, as the
case 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 Division], Court of Sessions or other to answer the
charge.
Discharge from Custody (Section 500)
According to the Section 500 of the Code of Criminal Procedure, 1898,
(1) As soon as the bond has been
executed, the person for whose appearance if has been executed shall be
released; and when he is in jail, the Court admitting him to bail shall
issue an order of release to the officer in charge of the jail, and such
officer on receipt of the order shall release him,
(2) Nothing in this section, section 496
or section 497 shall be deemed to require the release of any person
liable to be detaining, for some matter other than that in respect of
which the bond was executed.
Power to Order Sufficient Bail when that First Taken is Insufficient (Section 501)
Section 501 of the Code of Criminal Procedure, 1898
provides the provision of power to order sufficient bail when that
first taken is insufficient. The Section states as, If through mistake,
fraud or otherwise, insufficient sureties have been accepted, or if they
afterwards become insufficient, the Court may issue a warrant of arrest
directing that the person released on bail be brought before it and may
order him to find sufficient sureties, on his ailing so to do, commit
him to jail.
Discharge of sureties (Section 502)
In the code of criminal procedure Section 502 states,
(1) all or any sureties for the
attendance and appearance a person released on bail may at any time
apply to a Magistrate to discharge the bond, either wholly or far as
relates to the applicants,
(2) on such application being made, the
Magistrate shall issue his warrant of arrest directing that the person
so released be brought before him,
(3) on the appearance of such person
pursuant to the warrant or on his voluntary surrender, the Magistrate
shall direct the bond to be discharged either wholly or so far as
relates to the applicants, and shall call upon such person to fond other
sufficient sureties, and, if he fails to do so, may commit him to
custody.
Chapter 4
POWER OF GRANTING OR CANCELING BAIL BY DIFFERENT COURTS
4.1 Whether Sessions Judge Can Grant Bail after Rejection Bail Application by the High Court or Supreme Court
After the High Court rejected a bail
application, the Court of Session can entertain a Bail application of
the same accused if any substantial grounds for bail arose after such
rejection. On the other hand, if the fresh application was meant to
overcome the earlier order of rejection of bail by the High Court,
judicial decorum requires that the Court.<href=”#_ftn17″
name=”_ftnref17″ title=””>[18]Generally when the High Court has
rejected bail, the subordinate Courts have no power to grant bail. But
if new circumstances have come into existence, the lower Court has power
to grant bail even after the High Court has rejected
it.<href=”#_ftn18″ name=”_ftnref18″ title=””>[19]When the bail
application has been rejected on merits by the Supreme Court, the High
Court or the Session Court cannot grant bail to the accused on
re-evaluation of evidence. The practice of this Court is that if an
application (under section 497 or 498 of CrPC) is dealt with by a Judge
of this Court and then the second bail application of that accused is
filed, then the said bail application is to be placed before the same
Judge who has already dismissed an application. There is no doubt that
on the same material if this court has already dismissed an application
for bail filed by an accused, the sessions judge should not allow that
bail application.<href=”#_ftn19″ name=”_ftnref19″
title=””>[20]Where bail petition is dismissed by High Court on
merits, bail can still be allowed by the sessions Judge/ Committing
Magistrate/ Trial Court if the case is covered by any proviso to section
497 (1) or by section 497 (2) or witness while appearing in court do
not support the prosecution case. A subordinate Court is not otherwise
vested with jurisdiction to sit in Judgment over the orders of the High
Court. Rule of propriety, however, demands the transfer of the case to
another Judge Has expressed himself strongly against the grant of
bail.<href=”#_ftn20″ name=”_ftnref20″ title=””>[21]
4.2 Sessions Judge Competent to Entertain Bail Application despite Rejection by Additional Sessions Judge
Where an Additional Sessions Judge, to
whom a criminal case was transferred for trail by the Sessions Judge
after its committal rejected an application for bail, and there after
the accused moved the Sessions Judge for bail, the Sessions Judge is
competent to entertain the application for bail. In such situation it
cannot be said that as the case is transferred by the Sessions Judge the
Additional Sessions Judge, exercises the jurisdiction of the Court of
Session as he has no independent power and consequently the Sessions
Judge has no power, authority or jurisdiction to hear the applications
for bail.
The power of the Court of Session under
section 497 CrPC it not in any way affected even after transfer of the
cases by the Sessions Judge to the additional Sessions
Judge.<href=”#_ftn21″ name=”_ftnref21″ title=””>[22]A Sessions
Judge can grant bail application despite rejection of bail petition by
the Additional Sessions Judge or the Assistant Sessions Judge to whom
the case was made over for disposal.<href=”#_ftn22″ name=”_ftnref22″
title=””>[23]
4.3 Whether Magistrate Can Grant Bail after Refusal by the Session Judge
In spite of refusal to grant bail by
Sessions Judge (the appellate authority) Magistrate can, on a subsequent
occasion, in proper circumstances, grant bail.<href=”#_ftn23″
name=”_ftnref23″ title=””>[24] Where in spite of two successive bail
applications having been rejected by the High Court in a murder case,
the Magistrate granted provisional bail to the accused it was held that
the course adopted by the Magistrate was not only contrary to the
settled principles of judicial discipline and propriety but also
contrary to the statutory provisions.<href=”#_ftn24″ name=”_ftnref24″
title=””>[25]
4.4 Additional Sessions Is Not Bound By the Bail Granted by the Sessions Judge
Additional Sessions Judge is not bound
by the bail granted by the Sessions judge. If he refuses bail to an
accused who was earlier granted bail by the Sessions Judge that cannot
be construed as cancellation of bail granted by the Sessions
Judge.<href=”#_ftn25″ name=”_ftnref25″ title=””>[26]
4.5 Whether Court of Sessions Can Cancel Bail Granted by High Court
Neither the magistrate nor the Sessions
Judge is empowered to cancel the bail granted to an accused person by an
order of the High Court under section 498, unless the order of the High
Court is explicitly of a temporary character and applicable only to a
certain stage in the proceedings. It must be made clear that a Court of
Session cannot cancel bail which has already been granted by High Court
unless new circumstances arise during the progress of trial after the
accused person has been admitted to bail by the High
Court.<href=”#_ftn26″ name=”_ftnref26″ title=””>[27]
4.6 Magistrate Cannot Cancel Bail Granted by Sessions Judge or High Court
A Magistrate cannot cancel the bail of
the person who has been granted bail by Sessions Judge or High
Court.<href=”#_ftn27″ name=”_ftnref27″ title=””>[28] A Magistrate
has no power to cancel the bail granted by the High Court or the Court
of Sessions.<href=”#_ftn28″ name=”_ftnref28″ title=””>[29]
Chapter 5
BAIL ON SPECIAL LAWS AND PREVENTIVE DETENTION
5.1 Bails on Special Laws
Where a special law makes provision for
the disposal of bail applications, the High Court has no jurisdiction to
grant bail is special enactment orpermitting it to govern the field for
which it is meant, or it caters; but 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. Therefore, the accepted principle is that
special enactments transgressing into the field in occupation of the
laws universally applied and accepted in a country deserve strict
interpretation so that they are confined to that field alone in which
departure was intended by the Legislature due to any
expediency.<href=”#_ftn29″ name=”_ftnref29″ title=””>[30]
5.1.1 Special Law not specifically providing for bail
Where the special or local law does not specifically provide for bail, provisions of Code of Criminal Procedure, 1898 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 of the Code of Criminal Procedure 1898,
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.<href=”#_ftn30″
name=”_ftnref30″ title=””>[31]
5.2 Preventive Detention
Where the proceedings are in the nature
of a “preventive action” the underlying object of which is to ensure
that the detenues will not commit any offences or offences and not to
punish them for having committed any offence, they not being accused
persons charged with the commission of any offence cannot lay claim to
the application of provisions of section 496, 497 or 498 of the Code of Criminal Procedure, 1898
and apply for bail under any of these three sections. Provisions of
these sections are not applicable to persons detained under preventive
laws who are sent up before,” Special Tribunals” specially not for trial
for specified offences but in order to adjudicate whether orders of a
certain kind, particularly preventive could or should property be passed
against them.<href=”#_ftn31″ name=”_ftnref31″ title=””>[32]
5.2.1 Arrest by police
Section 151 of the CrPC deals with an
emergency situation and authorizes a police officer to prevent an
apprehended offence by arrest of a person designing to commit the same,
without a warrant or without waiting for the order of a Magistrate. The
application of section 107 along with section 151 of the CrPC would
clearly indicate that the offence designed to be committed related to
the breach if public peace. Obviously, therefore, the procedure laid
down in the Chapter VIII of CrPC must be followed to deal with the
situation which by implication denies the power of immediate release to
the police officer even on offering sureties. In the circumstances,
therefore the omission in the second proviso of section 151 of the CrPC
which does not deal with any particular offence is wholly
immaterial.<href=”#_ftn32″ name=”_ftnref32″ title=””>[33]
5.2.2 Arrest of vagabonds, habitual offenders
The police may arrest without warrant as a preventive measure, any person covered by section 55 of Code of Criminal Procedure, 1898. This
section isintended for suppression of habitual bad characters whom an
officer-in-charge if a police station suddenly finds within his circle,
or about whom he has good cause to fear that they will commit serious
harm before there is time to apply to the nearest Magistrate empowered
to deal with the case under section 122 of the Code of Criminal Procedure, 1898. When
the police act under this section they are bound to give the person
arrested the option of bail, and that bail should be not excessive but
in accordance with the position in life occupied by the person
arrested.<href=”#_ftn33″ name=”_ftnref33″ title=””>[34]
Chapter 6
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. But in case of non-bail able
offence, there is no specific provision in Cr.P.C of Bangladesh. The
suffering of the general people will be decreased and the judges will
not be biased by the force of the political party or ruling party to
fulfill their need if it is possible to adopt appropriate provisions in
Bangladesh. So we should introduce specific provision of bail in case of
non-bail able offence. For example, according to section 339(c) of the
CrPC, a Magistrate cannot go beyond the time range of 180 days to
conclude the trial and a Session Judge gets 360 days to conclude it. If
the trial is not completed within this time span, the accused even
though he is accused of non-bail able offence, may be released on bail.
In many cases in Bangladesh we see the time limit for concluding the
trial it is not maintained. But the poor, helpless mass people are not
found to get the benefit of this provision because of the words “may be”
in the section. This phrase actually imposes the power only to the
consideration of the court or the Judge to release the person on bail.
So we recommend to replace “may be” by “should ” in that section so that
the Judge/ the Court is bound to provide such a person for whom the
trial period has gone beyond bail to specified time range. It is
commonly seen that the provision of anticipatory bail is avoided by the
top political leaders and other bigwigs in Bangladesh though it is
available only in special cases by the special power of the words “in
any cases” of section 498 of the CrPC. But common people are rarely
found to get benefit of such anticipatory bail. Certainly the advantage
of the explanation of the wording of the section 498 of the CrPC is not
only for powerful and influential persons only. Since there is no
specific provision in the CrPC of Bangladesh, while in our neighboring
country India there is the specification on this point and that’s why
there is better assurance of justice through bail, we do feel to make
bail laws more convenient to the common people. Anticipatory bail should
not be occupied by a particular class of society rather mass people
should be given privilege by this. Bail is very much important in a
criminal case. So it must be delivered by the judges with due care and
deliberation
REFERENCES
Books
1. Sidiqure Rahman Miah, The Law on Bail Latest Decisions and Commentaries, 1st ed., (New Warsi Book Corporation, 2002).
2. Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed., (Dhaka: CCB Foundation, 2002).
- S Aftab Husain, Law of Bails in Pakistan (Karachi: Pakistan Publising House, 1961).
4. AC Sen , Mitra’s Legal and Commercial Dictionary (Kolkata: Eastern Law House, 1979), p.98.
Statutes
- Statute of Westminster, 1275.
- The Code of Criminal Procedure, 1898 (Act No. V).
- The Habeas Corpus Act, 1677.
- Bill of Rights, 1689.
List of Cases
1. State v Abdul Wahab, 51 (1999) DLR (AD) 242.
2. KM Obaidur Rahman v. State 55 DLR (AD) 6.
3. Captain (Retd) Nurul Huda v. State 55 DLR (AD) 33.
4. Dr. Qazi Faruque Ahamed v. State representes by the Deputy Commissioner, 56 DLR 600.
5. Azam Reza v. State 57 DLR 318.
6. Harun-or Rashid v. State, 56 DLR 318.
7. Shawkawat Hassan v. State 57 DLR 244.
8. Virendra Singh v. Avdesh Kumar, 1983 (V.P) Cr.R. 434=1983 All W.C. 809 at 812 = 1983 All Cr.r.c. 434.
9. Bohre Singh v. State, AIR 1956 All 671= 1956 Cr.LJ 1275.
10. Padam Chand Jain v. State of Rajasthan, 1991 Cr.LJ 736 at 738 (Raj).
11. Muhannad Akram Buttar v. Ijaz Ahmed and another,PLD 1976 Lah 591.
12. Rajesh Chowudhary v. State of Rajasthan, 1987 Cr.L.J 411 at 411(Raj).
13. Jagannath v. State, 1981 Cr.LJ 1808=1981 Mah LJ 791.
14. Taher Ali Khan v. State, 1968P.Cr.LJ 1463.
15. Bimla v. State (1994) 2 SCC 8= 1994 Cr. LJ 638.
16. Sohail Thakur and others v. State, 51 DLR (1999) 199.
17. Gurucharan Singh v. Dilhi Administration, 1978 Ce.LJ 129= Air 1978 SC 179.
18. Bholai Mistry v. State, 1977 Cr.LJ 492.
19. Dandapani Raut v. State of Orissa, (1984) 2 Crimes 781 = (1984) 58 C.L.T. 167 (Ori).
<href=”#_ftnref1″ name=”_ftn1″ title=””>[2] Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed., (Dhaka: CCB Foundation, 2008), p. 109.
<href=”#_ftnref2″ name=”_ftn2″ title=””>[3] AC Sen , Mitra’s Legal and Commercial Dictionary (Kolkata: Eastern Law House, 1979), p.98.
<href=”#_ftnref3″ name=”_ftn3″ title=””>[4]State v Abdul Wahab, 51 (1999) DLR (AD) 242.
<href=”#_ftnref4″ name=”_ftn4″ title=””>[5] S Aftab Husain, Law of Bails in Pakistan (Karachi: Pakistan Publising House, 1961), p 1.
<href=”#_ftnref5″ name=”_ftn5″ title=””>[6] AIR (1950) East Punjab 53, 57; State v Abdul Wahab, (1999) 51 DLR (AD) 242.
<href=”#_ftnref6″ name=”_ftn6″ title=””>[7] Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed., (Dhaka: CCB Foundation) p. 114.
<href=”#_ftnref7″ name=”_ftn7″ title=””>[8]Ibid p.116
<href=”#_ftnref8″ name=”_ftn8″ title=””>[9] Sidiqure Rahman Miah, The Law on Bail Latest Decisions and Commentaries, 1st ed.,(Dhaka: New Warsi Book Corporation, 2002).
<href=”#_ftnref9″ name=”_ftn9″ title=””>[10] Abdul Halim, ibid, p.109.
<href=”#_ftnref10″ name=”_ftn10″ title=””>[11]KM Obaidur Rahman v. State 55 DLR (AD) 6.
<href=”#_ftnref11″ name=”_ftn11″ title=””>[12]Captain (Retd) Nurul Huda v. State 55 DLR (AD) 33.
<href=”#_ftnref12″ name=”_ftn12″ title=””>[13]Ibid.
<href=”#_ftnref13″ name=”_ftn13″ title=””>[14] Dr. Qazi Faruque Ahamed v. State representes by the Deputy Commissioner, 56 DLR 600.
<href=”#_ftnref14″ name=”_ftn14″ title=””>[15]Azam Reza v. State 57 DLR 318.
<href=”#_ftnref15″ name=”_ftn15″ title=””>[16]Harun-or Rashid v. State, 56 DLR 318.
<href=”#_ftnref16″ name=”_ftn16″ title=””>[17]Shawkawat Hassan v. State 57 DLR 244.
<href=”#_ftnref17″ name=”_ftn17″ title=””>[18]Virendra Singh v. Avdesh Kumar, 1983 (V.P) Cr.R. 434=1983 All W.C. 809 at 812 = 1983 All Cr.r.c. 434.
<href=”#_ftnref18″ name=”_ftn18″ title=””>[19]Bohre Singh v. State, AIR 1956 All 671= 1956 Cr.LJ 1275.
<href=”#_ftnref19″ name=”_ftn19″ title=””>[20]Padam Chand Jain v. State of Rajasthan, 1991 Cr.LJ 736 at 738 (Raj).
<href=”#_ftnref20″ name=”_ftn20″ title=””>[21]Muhannad Akram Buttar v. Ijaz Ahmed and another,PLD 1976 Lah 591.
<href=”#_ftnref21″ name=”_ftn21″ title=””>[22] Rajesh Chowudhary v. State of Rajasthan, 1987 Cr.L.J 411 at 411(Raj).
<href=”#_ftnref22″ name=”_ftn22″ title=””>[23]Jagannath v. State, 1981 Cr.LJ 1808=1981 Mah LJ 791.
<href=”#_ftnref23″ name=”_ftn23″ title=””>[24]Taher Ali Khan v. State, 1968P.Cr.LJ 1463.
<href=”#_ftnref24″ name=”_ftn24″ title=””>[25] Bimla v. State (1994) 2 SCC 8= 1994 Cr. LJ 638.
<href=”#_ftnref25″ name=”_ftn25″ title=””>[26]Sohail Thakur and others v. State, 51 DLR (1999) 199.
<href=”#_ftnref26″ name=”_ftn26″ title=””>[27]Gurucharan Singh v. Dilhi Administration, 1978 Ce.LJ 129= Air 1978 SC 179.
<href=”#_ftnref27″ name=”_ftn27″ title=””>[28]Bholai Mistry v. State, 1977 Cr.LJ 492.
<href=”#_ftnref28″ name=”_ftn28″ title=””>[29]Dandapani Raut v. State of Orissa, (1984) 2 Crimes 781 = (1984) 58 C.L.T. 167 (Ori).
<href=”#_ftnref29″ name=”_ftn29″ title=””>[30] Sidiqure Rahman Miah , ibid,p.320.
<href=”#_ftnref30″ name=”_ftn30″ title=””>[31]Ibid, p. 321.
<href=”#_ftnref31″ name=”_ftn31″ title=””>[32] Ibid, p. 323.
<href=”#_ftnref32″ name=”_ftn32″ title=””>[33] Ibid, p. 323.
<href=”#_ftnref33″ name=”_ftn33″ title=””>[34] Ibid, p. 324.
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