Professional Documents
Culture Documents
CHAPTER I
INTRODUCTION:
Bail is a common word and it is also very much used word in criminal court
as well as civil court. Bail is to deliver, to release. Bail is delivering
something in trust to somebody for a special purpose and for a limited
purpose. Bail is release after a security has been paid.
Any one want a bail who are arrested living in jail means they want a bail
at any time. To set free, or deliver from arrest, or out of custody, on the
undertaking of some other person or persons that he or they will be
responsible for the appearance, at a certain day and place, of the person
bailed. The person or persons who procure the release of a prisoner from
the custody of the officer, or from imprisonment, by becoming surely for
his appearance in court. The security given for the appearance of a
prisoner in order to obtain his release from custody of the officer; as, the
man is out on bail; to go bail for any one. The legal system that allows an
accused person to be temporarily released from custody (usually on
condition that a sum of money guarantees their appearance at trial); he
is out on bail. Money that agrees to pay if a person accused of a crime
does not appear at their trail. When bail has been arranged, the accused
person is allowed to go free until the trail. Bail means release after a
security has been paid. Traditionally, bail is some form of property
deposited or pledged to a court in order to persuade it to release a suspect
from jail, on the understanding that the suspect will return for trial or
forfeit the bail (and be guilty of the crime of failure to appear In most
cases bail money will be returned at the end of the trial, if all court
appearances are made, no matter whether the person is found guilty or
2
Under the current law of England and Wales bail simply refers to the
release of the accused before trial. Under Scots law, no deposit or pledge
of property is asked for; bail is only granted where the court is satisfied the
accused will turn up for trial.
Objective :
Methodology :
CHAPTER II
Types of Definition
Definition of Bail:
Interim Bail:
As soon as the accused appears or brought before the court and prays
for bail the Sessions judge should dispose of his Application. If the sessions
judge fails to dispose of the same there is no scope for allowing the
4
Anticipatory Bail:
Court to try and effect a settlement between the warning couple may be
laudable act but is alien to the exercise of jurisdiction while deciding an
application seeking grant of anticipatory bail. Learned senior counsel
urged that the well known parameters viz. gravity of offence, possibility of
accused absconding or threatening witness of the prosecution, inherent
probabilities, for and against the accused are some of the factors which
have to be considered by the court while deciding an application for grant
a bail.
The Supreme Court of India explains the meaning of Anticipatory Bail and
lays the conditions for granting it. Here are the 9 guidelines as laid down
by a constitution bench, which the Courts are required to keep in mind
while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 497 of the Code can be
described as of an extraordinary character, but this does not justify the
conclusion that the power must be exercised in exceptional cases only
because it is of an extraordinary character. Nonetheless, the discretion
under the Section has to be exercised with due care and circumspection
depending on circumstances justifying its exercise.
5
ii) Before power under sub-section (1) of Section 497 of the Code is
exercised, the Court must be satisfied that the applicant invoking the
provision has reason to believe that he is likely to be arrested for a non-
bailable offence and that belief must be founded on reasonable grounds.
Mere fear is not belief, for which reason, it is not enough for the
applicant to show that he has some sort of vague apprehension that some
one is going to make an accusation against him, in pursuance of which
he may be arrested. The grounds, on which the belief of the applicant is
based that he may be arrested for a non-bailable offence, must be capable
of being examined by the Court objectively. Specific events and facts must
be disclosed by the applicant in order to enable the Court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the Section.
iii) The observations made in Balchand Jains case (supra), regarding the
nature of the power conferred by Section 497 and regarding the question
whether the conditions mentioned in Section 496 should be read into
Section 497 cannot be treated as conclusive on the point. There is no
warrant for reading into Section 497, the conditions subject to which bail
can be granted, anticipatory bail cannot be refused in respect of offences
like criminal breach of trust for the mere reason that the punishment
provided for is imprisonment for life. Circumstances may broadly justify
the grant of bail in such cases too, though of course, the Court is free to
refuse anticipatory bail in any case if there is material before it justifying
such refusal.
iv) No blanket order of bail should be passed and the Court which
grants anticipatory bail must take care to specify the offence or the
offences in respect of which alone the order will be effective.
While granting relief under Section 497(1) of the Code, appropriate
conditions can be imposed under Section 497(2) so as to ensure an
uninterrupted investigation. One such condition can even be that in the
6
event of the police making out a case of a likely discovery under Section
27 of the Evidence Act, the person released on bail shall be liable to
be taken in police custody for facilitating the recovery. Otherwise, such an
order can become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when
the order was passed.
vi) An anticipatory bail can be granted even after an FIR is filed so long
as the applicant has not been arrested.
vii) The provisions of Section 497 cannot be invoked after the arrest of
the accused. After arrest, the accused must seek his remedy under Section
496 of the Code, if he wants to be released on bail in respect of the
offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 497 of the Code
without notice to the Public Prosecutor but notice should be issued to the
Public Prosecutor or to the Government advocate forthwith and the
question of bail should be re-examined in the light of respective
contentions of the parties. The ad-interim order too must conform to the
requirements of the Section and suitable conditions should be imposed
on the applicant even at that stage.
of bail under Section 496 or 498 of the Code within a reasonable short
period after the filing of the FIR.
Misuse of Bail:
Mr. X was granted a bail from the lower court against 498A and 406 at
the time of bail it was not known that he has a valid passport with UK visa;
hence the passport was not ceased by the court.Mr X visited UK within the
bail priod without the permission of the court. Subsequently the fact of UK
Visit was brought to the notice of the court and a case started .The law
year of Mr. Xs lawyer is now pleading on the point that as Mr. X has not
break any condition of the bail bond executed (as per section 496 and 499
)and as Mr X is attending the court on the date whenever called for as Mr.
X has not break any condition of the bail bond so he can go any where
without the permission of the court (Bail bond implies only an oath that he
shout attain the court whenever ask for and know special condition has
been embedded in the bail bond)So the court has no right to punish Mr. X
for the Visit of UK without the permission of the court and the court can
not cancel or cease his passport in this case.
8
Bail Bond:
Criminal Law term paper Bail Bonds The principle of bail is basic to our
system of justice and its practice as old as English law itself. When the
administration of criminal justice was in its infancy, arrest for serious
crime meant imprisonment without preliminary hearing and long periods
of time could occur between apprehension and the arrival of the Kings
Justices to hold court. It was therefore a matter of utmost importance to a
person under arrest to be able to obtain a provisional release from custody
until his case was called. This was also the desideratum of the medieval
sheriff, the representative of the Crown in criminal matters, who wore
many hats including that of bailing officer. He preferred the conditional
release of persons under arrest to their imprisonment for several reasons:
it was less costly and troublesome; the jails were easy to breach and
under then existing law the Jailer was hanged if a prisoner escaped; the
jails were dangerous to health, and as there was no provision for adequate
food, many prisoners perished before trial was held Purpose Of Bail
Influenced by factors such as these, the sheriff was inclined to discharge
himself of responsibility for persons awaiting trial by handing them into
the personal custody of their friends and relatives. Indeed, in its strict
sense, the word bail is used to describe the person who agrees to act
assuredly for the accused on his release from jail and becomes responsible
for his later appearance in court at the time designated. As surety, the bail
was liable under the law for any default in the accuseds appearance.
Purpose Of Bail 3Between the 13th and 15thcenturies the sheriffs power
to admit to bail was gradually vested, by a series of statutes, in the
justices of the peace. In the case of a person committed for felony, the
justices of the peace had the authority to require, if they thought fit, his
remaining in jail until the trial took place, but, on the other hand, a person
committed for a misdemeanor case could, at common law, insist on being
released on bail if he found sufficient sureties. Writing in the mid-1700s,
9
the one side and the accused and his sureties on the other. Under the
contract the accused is released into the custody of the sureties on their
promise to pay the government a stated sum of money if the accused fails
to appear before the court in accordance with its terms. Historically, the
contract of bail, traced to a gradual increase of faith in the honor of a
hostage and the consequent relaxation of actual imprisonment,
constitutes one of the first appearances of the concept of contract in our
law.
CHAPTER III
11
Forms of Bail:
In the most of States there are several forms of bail used, these vary from
jurisdiction, but the common forms of bail include:
4. Cash typically cash-only, where the only form of bail that the
Court will accept is cash.
12
Set terms of bail, including the amount of bail and any special
conditions for release
Bail law came to the U.S. through English tradition and laws. Even
before the adoption of the U.S. Constitution and Bill of Rights, a judiciary
13
act in 1789 guaranteed a right to bail in all non capital cases. For a person
charged with a capital offense (where death is a possible punishment), bail
was discretionary, depending upon the seriousness of the offense.
1. What is bail?
courts deposit account to ensure that the accused is at the disposal of the
body carrying out criminal proceedings.
The court makes a decision about releasing the defendant on bail. When
discussing the motion made by the pre-investigation body, the
investigator or the prosecutor about detention, the court discusses also
the possibility of releasing the defendant on bail.
Yes, later at any investigation or trial stage the defendant or his defense
attorney can file a motion to the court to release the defendant on bail, as
well as to reduce the bail amount.
16
Detention and bail are applied only by the courts decision upon the
investigators or the prosecutors motion or on personal initiative while the
case is being heard in the court. The court can also apply bail instead of
detention upon the motion made by the defense party.
17
The defendant, his/her relatives and any person can pay the bail.
10. How and when is the defendant released from detention once
the bail is paid?
The court determines the amount of the bail by considering the rules
mentioned in question 8. Although the legislation does not provide the
maximum amount of the bail, nevertheless the court, while determining
the amount of the bail, should consider the financial state of the accused,
his family conditions and the number of people who are under his care.
The defendant who has been released on bail is at the disposal of the
body carrying out the proceedings. This means that he/she should not hide
from the trial, must appear upon
Summons and not to leave for another place without his permission.
If the terms of release on bail are violated, the prosecutor shall apply to
court with a motion to take the bail as state income. The prosecutor can
also file a motion on substituting bail with detention.
14. Can the decision on making the bail as state income and/or
substituting it with detention be appealed?
Yes, if the court grants the prosecutors motion and makes a decision on
making the bail as state income and substituting it with detention, these
decisions can be appealed. The defendant or his/her defender can appeal
such court decisions to the Court of Appeal and later to the Court of
Cassation.
In all cases the bail is returned to the pawnshop, with the exception of
cases when a decision has been made to make the bail as state income. If
the defendant has not violated
The terms of the bail, the bail is returned after the judgment has been
made. Bail is returned in all cases irrespective of the fact whether the
person is sentenced to imprisonment or not.
19
Zahirul Huq, Law and Practice of Criminal Procedure, (Fifth Edition, 1987)
by Subarna Publication
In below there are some mere possibility reasons of why bail is refused.
If you have not given a name or address, or the court have reasonable
grounds for doubting the name or address you have given.
If the court has reasonable grounds for believing that you wont turn up
at court (e.g. if you have not turned up in the past and have a bad bail
record).
If you has been arrested for an impressionable offence, and the court
have reasonable grounds for believing that detention is necessary to
prevent you from committing an offence.
20
The general rule is that the court has to grant bail unless one of the
following conditions applies.
If its not an impressionable offence, the court can refuse bail if you
have previously not turned up after being granted bail and if the court
believes that, if released on bail now, you would fail to turn up.
If its an indictable or either way offence (i.e. one that can be tried in
front of a jury, like theft, conspiracy or major criminal damage), the court
can refuse bail if you were on bail (for another offence) on the date of the
offence.
21
In any case (whatever the offence), the court can refuse bail if its
satisfied that you should be kept in custody for your own protection or (if
under 17) for your own welfare, OR if youre in custody following the
sentence of a court, OR if you have been arrested for absconding (not
turning up after being on bail).
If a court withholds bail, you will be kept on remand. Your bail will be
reviewed by the court each week (or so) until you are either released on
bail or brought to trial. When reviewing bail, the court has to hear
submissions from you at the first review (even if you have made the same
arguments before), but can refuse to hear the same arguments after that
(you can still make a submission, so long as its different from before).
In bailable offense accused have right to get bail. But, sometimes we are
looking that ,the accused can not get bail in bailable offense in the court.
The Magistrate is influenced by political and other illegal way he can not
grant bail.
In the political cases, the Magistrate can not grant bail in the bailable
offense. In this way by illegal interfere of the political leader, the
independency of judiciary is broken down and for this reason people are
confused about the court are they getting right judgment in the court.?
There are other important reason for refused granting bail by the
magistrate is taken huge amount of money from the party. Some
magistrate are corrupted , there are always take money from the party
after that the magistrate granting bail in the non- bailable offense.
In the Session judge court and the High court division has discretionary
power for granting bail. The session judge and high court division has
right to grant bail in non-bailable offense. Session judge and High court
22
division exercise the supreme power of granting bail. For, this reason
,sometimes misuse of the power of granting bail in the court.
23
CHAPTER IV
When any person other than a person accused of non bailable offence is
arrested or detained without warrant by an officer in charge of police
station or appears or is brought before a court and is prepared at any time
while in the custody of such officer or at any state of the proceedings
before such court to give bail. Officer or Court if he or it thinks fit may
instead of taking bail forms such person. Discharge him on his executing a
bond thought sureties for his appearance as hereinafter provided:
(1) When any person accused of any non bailable offence is arrested or
detained without warrant by an officer in charge of a police station or
appears or is brought before in Court, he may be released on bail but
he shall not be so released if there appear reasonable ground for
believing that he has been guilty or an offence punishable with death
or imprisonment for life.
1. Provided that the court may defect that any person under the age of
sixteen years or any woman or any sick or infirm person accused of
such an offence be release on bail.
(2) If it appears to such officer or Court at any stage of the investigation
inquiry or trial as the case may be that there are not reasonable
grounds for believing that the accused has committed a non bailable
offence but that there are sufficient grounds for further inquiry into
his guilt the accused shall pending such inquiry be released on bail or
at the discretion of such officer or Court on the execution by him of a
bond without sureties for his appearance as hereinafter provided.
24
(3) An officer or a Court releasing any person on bail under sub section
(1) or sub section (2) shall record in writing his or its reasons for so
doing.
(4) If at any time after the conclusion of the trial of a person accused of a
non bailable offence and before judgment is delivered the Court is of
opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence it shall release the accused
if he is in custody on the execution by him of a bond without sureties
for his appearance to hear judgment delivered.
(5) The High Court Division or Court of Session and in the case of a
person released by itself, any other Court may cause any person who
has been released under this section to be arrested and may commit
him to custody.
The basic conception of the word bail is release of a person from the
custody of police and delivery into the hands of sureties who undertake to
produce him in Court whenever required to do. For the purpose of bail.
offences are classified into two categories, bailable and non bailable. This
section provides for the granting of bail in bailable case and section 497
in non bailable cases. Grand of bail in baliable offence is a right while in
nonbailable offence the grant of bail is not a right but concession grace.
Grant of bail in offence punishable with imprisonment for less that 10
years is a rule and refusal and exception in bailable offences, there is no
question of discretion in granting bail as the word of the section are
imperative. The only choice for the court is as between taking a simple
recognizance of the principal offender or demanding security with surety.
Ordinarily the world bail applies to the second kind of security to the
practice and procedure to the court[3].
The basic essential governing the matter of granting bail is that bail
should never be withheld as punishment. Grant of bail is a rule and same
could not be withheld by way of punishment.
26
CHAPTER V
PRINCIPLES OF BAIL
In order to justify the grant of pre-arrest bail, the petitioner must show that
he apprehends his arrest on account of ulterior motives. Pre-arrest bail
may not be granted where there is no allegation made against the police
that they have falsely implicated the petitioner in the case. Where there is
nothing to show that there has been false involvement and the accusation
is of a heinous offence like sodomy bail before arrest cannot be granted.
While granting hail the Court must consider the gravity of the offence of
which the accused is charged the character of the evidence,
circumstances which are peculiar to the accused as reasonable possibility
of the presence of the accused not being secured at tile trial responsible
29
(a) Whether there is or is not a reasonable ground for believing that the
applicant has committed offence with which he is charged:
(b) The nature and gravity of the charge:
(c) Severity of degree of the punishment which might fail in the
particular circumstances in case of a conviction:
(d) The danger of tile applicants absconding if he is released on hail:
(e) The character and means and standing oh tile applicant:
(f) The danger of the alleged of alleged being continued or repeated
assuming that the occlude is guilty of having committed that offence
in the past:
(g) The danger of witness being tampered with:
(h) Opportunity of the applicant to prepare his defense and
(i) the fact that the applicant has already been sonic months in jail and
that the trial is not likely to conclude to, several months at least
(Hamarayan AIR I 958 Punj I 23: Khitish Chandra. (1972) 38 Cut Li
777: 1977 Ml.) (Cr.) 284: Ii R (1977) 2 Kant 1025).
While dealing with a bail application tile High Court should take 1110
account the various considerations. Such as
(5) likelihood of jumping the bail and tempering with evidence. Possibility
of non availability of the accused during trial, due apprehension of his
being murdered for retaliation has been considered to be a relevant
consideration while refusing bail. When proper treatment is available in
the bail on the ground of sickness is to be refused. It is to be remembered
that while adjudicating a bail petition detail examination of evidence and
elaborate documentation of the merits of the case should be avoided.
Although technically there is no bar of resjudicata. successive applications
for bail, should not be encouraged unless new grounds are available and
are successfully made. The likelihood of interference with witnesses
polluting with imprisonment for life and the accused petitioners arc men of
date-devil character and are also involved in other criminal cases, the
applicants prayer for bail should not be granted. That accused must
appear in Court and surrender when he applies bail and he cannot file the
bail petition through counsel without putting appearance.
32
CHAPTER-VI
CONDITION OF BAIL
Condition:
33
The law enjoins certain conditions for the release on bail, and the
Criminal Procedure Code lays down various provisions regulating the
conditions that can be imposed while granting bail to a person.
(2) If the case so requires ,the bond shall also bind the person
released on bail to appear when called upon at the High Court or Court
of Sessions or other court to answer the charge.
Bailable offence:
When bail may be refused. It cannot be said that section 497(1), Cr.
P.C was applicable only where an offence was punishable exclusively
with death or imprisonment for life and by no other sentence in place
of or in substitution of death or imprisonment for life.[PLD 1973 Lah.
741].
Where the accused where charged under Section 452, 109 and 120-
B .Cr. P.C., for carrying on demonstrations with a view to bring pressure
on the Government to give up its to impose grazing fees and the court
in granting bail, imposed a condition, that the accused should execute
bond not to abet to take part in such demonstration, it was held that
conditions were not unreasonable . The only condition contemplated by
Section 499, Cr.p.c. is the attendance of the accused in court on a fixed
day and continue to attend court until otherwise directed. Any other
condition such as undertaking not to deliver speeches until the disposal
of the case is invalid and will not result in forfeiture of the bond .(AIR 1939
cal 714 = 41 Cr. LJ 138= 43C.W.N. 6 93]
35
Condition of bail:
The conditions for grant of bail to a person of bail offence should not be
harsh, oppressive and virtually resulting in denial of bail. Sub-sec. (3)
empowers the to impose two conditions in case mentioned in sub-
clauses(a), (b) and (c). Under sec. (1) (a) the High Court or the Court of
Session is also authorized to impose such conditions. But any condition,
which has no reference to the fairness or propriety of investigation or trail,
cannot be imposed in granting bail. The Bombay High Court has held that
it was improper on the part of the court to impose the condition that he
would pay the complainant the amount secured by him as a result of
cheating and again to cancel the bail on his inability to return the
amount in full.
1. Anwar Vs. state 1995 Cr. LJ 863 (Orin) [ the condition for release
on the bail for depositing cash security with one surety in addition
to bail bond held harsh and progressive.
Recording of reasons:
A police officer or a Court relating a person on bail under sub-sec. (1) has
to record his or its reasons for releasing any person on bail and under
sub-sec.(2) has to record his or its special reasons for granting bail . Even
in case of refusal, reasons, are required to be recorded, otherwise the
High Court will interfere.
36
Chapter- VII
Meaning:
The Allahabad High Court held that bail cannot be granted to an accused
who had neither been arrested nor detained by a police nor appeared
personally in Court. The decision was based on the following reasons:-
Main conditions:
The anticipatory bail may be grated when the offence are bailable and non
cognizable. [ NLR 1983 Cr Lah. 334].
In Gurbaksh SinghVs. State, the court made it clear that the operation of
an order passed under sec. 438(1) necessarily be limited in point of time.
The Court may, if there are reasons for governor by Terrorist Areas (Special
Courts) Act, 1984.Promode Khare 1982 Cr. LR 344(MP).
Forum:
High Court. However, disagreeing with the said decisions of the Calcutta,
Karnataka, Delhi and Bombay High Courts, it has been held by the Madhya
Pradesh High Court in Pradeep Kumar Vs. State that in order to ascertain
the venue of jurisdiction of the court, provisions of sec.438 have to be
read along with other relevant provisions of the Code and combined
reading of sec.438 and Chapter XIII of the code, which is explicit, denotes
that the jurisdiction to try the accused for an offence alleged has to be
determined from the area within which the offence is committed and not
the where the offender may be found or residing. Amar Bharati
1980Cr.LJ385:1981 Rajdhni LR 37; Syed Zafrul Hossain Cr.LJ(part);
C.T.Mathew 1985 Cr. LJ 1316(Ker).
Anticipatory bail granted by The High Court can only be cancelled under
sec. 439(2) of the Code. It has, however, been held that when an ad
interim anticipatory bail was granted to the applicant and such interim bail
was set aside on hearing both sides ,such an order is not an order of
cancellation of the bail. Therefore, the principles on which the bail can be
cancelled would not be attracted when interim anticipatory bail is
cancelled on hearing both sides. It has been held that when an
anticipatory bail is granted on giving full hearing to the public prosecutor
and repeated attempts to have it cancelled have failed it cannot be
cancelled unless fresh materials are placed and the conditions for
cancellation of bail as provide under sec.439(2) are fulfilled . Rejection of
bail is a non-bail able case at the initial stage and the cancellation of bail
so granted, have to be considered and dealt with on different basis. Very
cogent and overwhelming circumstances are necessary for an order
directing the cancellation of bail, broadly (illustrative and not
exhaustive)are: Interference or attempt to interfere with the due course of
40
The State, 19 BLD (AD) (1999) 189(para26)=1999 BLC (AD) 195). For bail
before arrest section arrest section 498, Cr.P.C would be called in aid,
before the Court of Sessions and the High Court even where the court not
seized directly of the proceedings in question and where no where no
actual arrest has been made so far but anticipatory bail is asked for e.g.
where the case is still at the stage of investigation by the police or is
pending in a subordinate court.
Chapter- VIII
Where a special law makes provision for the disposal of bail applications,
the High Court has no jurisdiction to grant bail in contravention of those
provisions. There is no question of disputing with a Special enactment or
permitting it govern the field for which it is meant, or it caters; but it
cannot be stretched too far to enable it to travel outside its scheme and to
disturb the continuance of the normal law of the land; much less to allows
it to occupy the field for which it does not provide.
Where an offence is tribal by a special Court, and the Special Court has
not been constituted when a pre- arrest bail application is made to the
High Court, the Court can exercise jurisdiction under this section even
when the special Court is constituted after the application is made.
Where the petitioner was charged for offences under section 161, P.C. and
section 5 of Prevention of Corruption Act, punishable with 3 years and 7
years R.I respectively. Prohibitory clause as given in section 497, Cr. P.C.
was not attracted to the petitioners case. He was enlarged on bail on such
sole consideration. Where in a case under the Act the accused petitioner
was no longer required by the Police for investigation, he was released on
bail.
Embezzlement:
Where the total amount involved in all the cases was approximately Rs.
24,00,000 out of which an amount of Rs. 9,04,000 had not been
recovered while the remaining amount had already been recovered. Bail
was granted. Where the petitioners were in jail ever since the date of his
arrest and the period of their detention came to more than a year.
Pre-arrest bail:
Custom Act:
Where an offence has been committed under Customs Act bail may be
granted Criminal Procedure Code. Where the petitioner a carrier for the
owner, was charged under Customs Act for smuggling narcotics, he was
42
not granted bail even when the offences was punishable with ten years
R.I. only. But where the accused was only a carrier and he had no reason
to doubt that goods sought to be exported out of Bangladesh were
contraband or the company for which they acted was a fictitious firm.
Where the special or local law does not specifically provide for bail,
provisions of Cr. P. Code would apply and bail may be granted by ordinary
Courts. As there is nothing in foreign Exchange Regulation Act to regulate
matters of bail, the powers of the High Court under section 498, to admit a
person accused of an offence under the Act to bail has not been restricted
or taken away and the High Court has jurisdiction to admit persons
accused under the Act, to bail.
Chapter-IX
For instance, section 19 of the Naro-O Shishu Nirjaton Daman Ain, 2000
as amended in 2003, Provides for special provisions for bail. However,
there are conflicting decisions on the question as to whether prayer for
bail can be made before competent Magistrate when a person is produced
before him as an accused of an offence under this Act.
43
Majority View :-
As regards the granting of bail case under the said Ain, the Chief
Metropoliton Magistrate has no jurisdiction to entertain the prayer of bail.
Only the Nari- O-Shishu Nirjatan Daman Tribunal can take cognization of
the offence in accordance with the provision of section 27 of the Nari-o
Shishu Nirjatan Daman Ain,2000. Therefore, we direct the chief
Metropoliton Magistrate to send the record to the Tribunal within 7 days
from the date of receipt of this order to the petitioner can appear before
the Tribunal and pray for bail.
Similarly in Didarul Hasan v State 11 BLC 436, the High Cort Division made
the following observations on the question of granting bail under the Ain:
The Madak Drabbya Niyantran Ain, 1990 provides for special provisions of
bail in its section 31(Ka). However, this law does not provide for any
specific forum of trail where offences under this Ain may be tried. In the
absence of any such specific provision, while considering any bail petition,
the provision of sub-section (2) of section 5 of the CrPC shall apply and on
consideration of the quantum of punishment as provided in Schedule II of
the Code under the heading OF OFFENCES AGAIST OTHERS LAWS, the
forum will be determined. So, the courts mentioned in 7 th column will be
competent to try the case and also competent to grant bail to those
persons alleged to have committed offences under the Madak Drabbya
Niyantran Ain.
CHAPTER X
Bail Petition:
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State
.Prosecution
-Versus-
Shahjamal
.(Accused-Petitioner)
(In custody)
-AND-
1. That the petitioner is quite innocent and has been arrested by the
police out of suspicion.
7. That the petitioner has several houses and different business centers
in Dhaka city.
SHWETH:
1. That the informant-petitioner lodged the G.R. Case number 17, dated
26.02.2011 in the Dhanmondi police station of Dhaka against the
aforesaid accused person in alleging the killing of the informats
brother.
3. That the police submitted charge sheet against the accused persons
u/s. 302 of the Penal Code, 1860 and after accepting the Charge
sheet the case was sent to the trial court.
4. That recently the aforesaid miscreant- accused got bail from this
court and after releasing from bail threaten the informant to
withdraw the case otherwise he will kill of his family members.
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5. That the informant has lodged a G.D. in Dhanmondi Thana about the
threat of the accused and the copy of G.D. is annexed herewith as
ANNEXURE-A
6. That the accused person is now threating all the eye witnesses and
witnesses of the seizure list not to go to the court for appearing as
witnesses.
7. That recently, the accused persons has killed another man named
Kamal in Mohammadpur who is also a witness of this case.
8. That after released from bail, the accused is trying to hindrance the
whole procedure of this murder case.
9. That the accused may kill any other persons related with the case at
any time.
10. That for ends of justice the bail of the accused should be
cancelled and detained him in the custody otherwise total procedure
of this case would be frustrated.
And, for this act of kindness, the petitioner as in duty bound shall ever
pray.
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CHAPTER XI
Findings:
(1) The High Court Division and the Session Judge exercise the power of
granting bail by the influence of the executive body.
(2)After the release on bail the accused try to influence illegally on the
witness.
(3)The court can not give right decision in the matter of bail because of
the illegal interfere of political leader and the corruption of the Magistrate.
(4)After granting bail for insufficient bond the accused do not attend in the
court for further trial.
(5)Women and minor get bail easily in non-bailable offence for this reason
they enter in the arena of crime more rapidly.
Conclusion:
From the above mentioned discussion it is clear that Bail matter plays a
significant role in a criminal case, because it is the ultimate goal of the
accused. Bail is the right of the party. Anyone wants a bail who is arrested
living in jail means they want a bail at any time. To set free, or deliver from
arrest, or out of custody, on the undertaking of some other person or
persons that he or they will be responsible for the appearance, at a certain
day and place, of the person bailed. When bail has been arranged, the
accused person is allowed to go free until the trail. Bail is an alternative
preventive measure to the preventive measure applied as detention
against the defendant and it is applied only in case the court has made a
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The court makes a decision about releasing the defendant on bail. When
discussing the motion made by the pre-investigation body, the
investigator or the prosecutor about detention, the court discusses also
the possibility of releasing the defendant on bail. If the terms of release on
bail are violated, the prosecutor shall apply to court with a motion to take
the bail as state income. The prosecutor can also file a motion on
substituting bail with detention.
Recommendation:
(1) (1)The High Court Division and the Session Judge should exercise
the power independently.
(2) (2)Strict monitoring mechanism should be created by the
government for the accused who will be released on bail so that
they can not influence the witness.
(3) (3)The Court should be independent in taking decision in the matter
of granting bail.
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BIBLIOGRAPHY :
Books:
Website:
1. www.definitionofbail.com
2. www.groundofbail.com
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3. www.typeofbailbd.com