LEGAL ASPECTS OF BAIL
Course title: Law of Crime & Criminal Procedure Dept. of Law
Bangladesh University of Business and Technology (BUBT), Dhaka
Khairul Amin Khan Lumen
LLB (2 Years)
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 favor. ‘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 a place named.
Bail under CrPC: 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 sureties’, ‘bail with surety’, ‘bail or bond’, ‘bail or security’. They all connote the same thing for the purpose of the CrPC. Under the CrPC both the police and the court are competent to grant bail in appropriate circumstances.
In the case CROWN VS KHUSHI MD (1953) 5 DLR (FC) 143 (150) it was held that,
“ Basic concept of the word bail is release of a person from the custody of police and delivery in to the hand of sureties , who under take to produce him in court whenever require to do so”.
There are varies of purpose 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 if giving evidence etc. Bail to a convicted person is dealt with in sections 424 and 435 where bail before conviction is dealt with in section 496 and 498.
Application for bail can be made at the first appearance of the accused before the Magistrate court. As per Article 35 of the constitution every person arrest, once he is brought before the Magistrate, he has right to apply for bail. If the bail application is rejected, he may appeal to the Court of Session pending which he cannot apply for bail again in the magistrate court. However, once the appeal in the Sessions Court is disposed of, he may apply for bail in the Magistrate court again with fresh grounds. Even if the appeal in the Sessions Court is rejected, still the accused person will have right to apply for bail in the Magistrate Court with fresh grounds if any.
Purposes of a 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 trail.
However, every criminal proceeding is based on a prima facie assumption of guilt and again there is a presumption of innocence in favor of the accused. Bail serves the purpose of presumption of innocence.
Categories of Bail:
Bail during inquiry and investigation:
Bail by Police (sec. 496 and 497)
Bail by Magistrate or court (sec. 496, 497 and 498)
Bail after investigation but before conviction:
Bail by the Magistrate or Court (sec. 496, 497 and 498)
Bail after conviction:
Bail pending appeal under section 426 and 498;
Bail pending revision under section 435.
Bail in bailable offence (sec. 496)
Bail in non-bailable offence (sec. 497)
Anticipatory Bail (sec.498)
Section 496 provides for grating of bail in case of bailable case and section 497 deals with the provision of non bailable case.
In bailable offence, there is no question of discretion in granting bail as the word of the section 396 are imperative. The only choice for the court is as between taking a simple reorganization of the principle of...
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