View with images and charts 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.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. 2
Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed., (Dhaka: CCB Foundation, 2008),
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. 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. 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.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 3
AC Sen , Mitra’s Legal and Commercial Dictionary (Kolkata: Eastern Law House, 1979), p.98.
State v Abdul Wahab, 51 (1999) DLR (AD) 242.
S Aftab Husain, Law of Bails in Pakistan (Karachi: Pakistan Publising House, 1961), p 1.
him or her in court upon an appointed day. 6 In criminal law, â€˜bailâ€™ 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.), a sum 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 6
AIR (1950) East Punjab 53, 57; State v Abdul Wahab, (1999) 51 DLR (AD) 242.
(2) Non- bailable cases.
In the former class, the grant of bail is a matter of course. It may be given either by the policeofficer 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 nonbailable 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: i. Anticipatory Bail (before arrest) ii. Interim or Ad-interim Bail iii. 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.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. 7
Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed., (Dhaka: CCB Foundation) p.
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: a. Bail pending appeal under section 426 and 498 ; and b. Bail pending revision under section 435.8 c. 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.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.10 Chapter XXXIX of the Code of Criminal Procedure, 1898 (Act No. V) deals several sections related to Bail in the following wayBail 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; 8
Sidiqure Rahman Miah, The Law on Bail Latest Decisions and Commentaries, 1st ed.,(Dhaka: New Warsi Book
Corporation, 2002). 10
Abdul Halim, ibid, p.109.
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. 11The 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.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.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.14 The deceased was killed in her husbandâ€™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. 15Non-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.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.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 11
KM Obaidur Rahman v. State 55 DLR (AD) 6.
Captain (Retd) Nurul Huda v. State 55 DLR (AD) 33.
Dr. Qazi Faruque Ahamed v. State representes by the Deputy Commissioner, 56 DLR 600.
Azam Reza v. State 57 DLR 318.
Harun-or Rashid v. State, 56 DLR 318.
Shawkawat Hassan v. State 57 DLR 244.
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. 18Generally 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.19When 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.20Where 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.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. 22A Sessions Judge
Virendra Singh v. Avdesh Kumar, 1983 (V.P) Cr.R. 434=1983 All W.C. 809 at 812 = 1983 All
Bohre Singh v. State, AIR 1956 All 671= 1956 Cr.LJ 1275.
Padam Chand Jain v. State of Rajasthan, 1991 Cr.LJ 736 at 738 (Raj).
Muhannad Akram Buttar v. Ijaz Ahmed and another,PLD 1976 Lah 591.
Rajesh Chowudhary v. State of Rajasthan, 1987 Cr.L.J 411 at 411(Raj).
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.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.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.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.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.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.28 A Magistrate has no power to cancel the bail granted by the High Court or the Court of Sessions.29 23
Jagannath v. State, 1981 Cr.LJ 1808=1981 Mah LJ 791.
Taher Ali Khan v. State, 1968 P.Cr.LJ 1463.
Bimla v. State (1994) 2 SCC 8= 1994 Cr. LJ 638.
Sohail Thakur and others v. State, 51 DLR (1999) 199.
Gurucharan Singh v. Dilhi Administration, 1978 Ce.LJ 129= Air 1978 SC 179.
Bholai Mistry v. State, 1977 Cr.LJ 492.
Dandapani Raut v. State of Orissa, (1984) 2 Crimes 781 = (1984) 58 C.L.T. 167 (Ori).
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 or permitting 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. 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.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.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 30 31 32
Sidiqure Rahman Miah , ibid, p.320. Ibid, p. 321. Ibid, p. 323.
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.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 is intended 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.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 33
Ibid, p. 323.
Ibid, p. 324.
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). 3. S Aftab Husain, Law of Bails in Pakistan (Karachi: Pakistan Publising House, 1961). 4. AC Sen , Mitraâ€™s Legal and Commercial Dictionary (Kolkata: Eastern Law House, 1979), p.98. Statutes 1. Statute of Westminster, 1275. 2. The Code of Criminal Procedure, 1898 (Act No. V). 3. The Habeas Corpus Act, 1677. 4. 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, 1968 P.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).