correction final
TRANSCRIPT
Chapter One
1.1 Introduction
The concise oxford dictionary defines bail as security for the
appearance of prisoner on giving which the accused is released
during pending of trial. In the same dictionary the meaning of
the world bail as a verb is giving as to admit to bail to relapse on
security given for appearance. According to the chamber
twentieth century dictionary, bail is the security given and used
as a verb, it means to set a person frees by giving security for
him or to release on the security of another. The word bail is
derived from the old French verb bailer who means to given or
deliver according to wasters new international. According to the
shorter ok for English Dictionary the word bail is relation to the
tatting alular means to bear a burden. In judicial dictionary bail
is defines as follows; Bail is when a mean is taken or arrested
for felony, suspension to felony indicated of felony, or bail able
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offering surety to those which have authority to bail him which
sureties are bound for him to the kings use in a creating sum of
money or body for body, that be shall appear before the justice
of goal delivery at the next sessions, etc. Then upon the bounds
of those securities as is aforesaid he is bailed, that is to say set a
liberty until the day appointed for his appearance.
In a civil mater the term bail applies to those persons who
become sureties or bind themselves either to satisfy the plaintiff
in respect of this debt or costs or to surrender the defendant in to
custody if the judgment is against him and he fails to satisfy it.
In the law lexicon, bail is defined as to set at liber5ty a persons
arrested or imprisoned or security being taken for his appearance
on a day and at a place certain, and such security is called bail
because the party arrested or impersonal is delivered in to the
hands of those who bind themselves for his forthcoming. In
order that he may be safely protected form prison.
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1.2 Objectives of Research:
The objective for which this research paper has been prepared:
1. To sort out on which situation an individual is competent
to apply for the bail,
2. To figure out the value of the bail in present perspective
and the abuse of the bail ,
3. To understand the proceeding more specifically,
4. To understand the legal importance of a bail,
5. Finally to go through the different aspect of bail.
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1.3 Research Methodology:
The research methodology of this research paper has been
analytical. The paper defines and describes different terms and
proceedings that an accused have to follow to apply for the bail.
The research paper shows and describes the importance and
value and even the abuse of the bail in detail. It has been an
effort to include every aspect of bail as a whole.
I have collected the information's from teacher and different
books journal, research papers, magazines and others different
sources and also annual report published by the NGOs. So this
information are secondary resources.
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1.4. Definition of Bail
Bail is matter of procedure privilege at the most, and not an
accused right, at least until it is granted. Where the statutes does
not contain a specific provision in the matter; view that no
procedure can be adopted however reasonable and report it may
be u8nless there is an express provisional sanctioning it in the
criminal procedure code is hardly courted and the correct
principle is that is matters of procedure a particular procedure
should be permitted if it is not prohibited. Therefore, bail may
be granted in such class on general principles.
The basis conception of the word bail is release of a person from
the custody of police and delivery into the hand of sureties who
undertake to produce him before court whenever required to do
so. An accused person is said at common law, to be admitted to
bail at common law, to be admitted to bail, when he is related
from the custody of the officers of the court and is default of so
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ding are it liable to forfeit such sum as is specified when bail is
granted.
The term bail in English common law as explained in
encyclopedia Britannica means the freeing or setting at liberty of
one arrested or impressionable upon by action, either civil or
criminal, on surety taken for his appearance on a certain day and
at a place named. The surety in termed bail, because the person
arrested or imprisoned is placed in the custody of those who
bind themselves or become bail for his due appearance when
required. So he may be reserved by them if they suspect that he
is court, when they are discharged from further liberty. The
sureties must be sufficient in the opinion of the court to answer
for the rule only householders are accepted; an infant would not
be accepted. Bail is obligatory in all summary cases. It is also
obligatory in all misdemeanors, except such as have been placed
on the level of felonies; viz; obtains or attempting to obtain
property on false pretences receiving property so obtained or
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stole, perjury or subornation or perjury, consentient of birth,
willful or indecent exposure of the person, riot, assault in
pursuance of a conspiracy to raise wages, assault upon a police
officer in the execution of his duty or upon any one assisting
him, neglect or breach of duty as a officer, any perocesctuioin of
which the costs are payable out of the country or brought rate or
fund.
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2 Categories of offences
Criminal procedure code has under 5.4 (b)
Categories offences of bail able and non -bail able. The
offences under each of the heads have been specified in the
schedule to the code.
A. Bail in bailble offence
Section 496; cr. p. c. provides that in the cases of bail able
offences the persons accused has an indefeasible right to grant
of bail subject of course to satisfactory sureties being offered, if
sureties are considered necessary. The provisions of the section
are mandatory and the court or the officer in charge of the police
station, as the case may be, is bound to release the person in
custody who is accused of a bail able offence, on bail, provided
he is prepared to give, it or on recognizance’s.
The seriousness of the offence is immaterial for the purpose of
bail, provided that the offence is bail able. Where the accused is
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change with a non bail able offence but it is found that the
offence, if any made out on the facts was bail able the accused
must be bailed out. The court has no discretion must be bailed
out. The court has no discretion matter. Where the High Court
ordered that bail may be granted by the Magistrate after
recording some evidence and the Magistrate fund that the charge
against the accused could be only for bail able offence, he was
right in admitting the accused to bail without recording any
evidence.
History of Bail
The United States’ bail system has evolved from a system
developed in England during the Middle Ages. In 1677, the
English parliament passed the Habeas Corpus Act, which,
among its provisions, established that magistrates would set
terms for bail. The English Bill of Rights of 1689 declared
restrictions against “excessive bail” and later inspired the
Virginia state constitution and the Eighth Amendment to the
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United States Constitution. The Sixth Amendment to the
Constitution states that all people under arrest must “be
informed of the nature and cause of the accusation” they face
and also allows a person to demand bail if he or she is accused
of a bailable offense. Bail law in the United States remained
relatively unchanged from 1789 until 1966. In 1966, the U.S.
Congress passed the Bail Reform Act, which was designed to
allow for the release of defendants with as small a financial
burden as possible. Before signing the act, President Lyndon B.
Johnson gave a speech that contained stunning examples of how
the bail system had hurt people in the past. Here’s one
particularly disturbing example: “A man spent two months in
jail before being acquitted. In that period, he lost his job, he lost
his car, he lost his family -- it was split up. He did not find
another job, following that, for four months”. Other anecdotes
related similar stories: poor people spending months in jail only
to later have the charges dropped; others forced to sit in jail,
unable to work, only to be found innocent of all charges. In
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short, the bail system was biased against the poor and filling
jails with people who should be out on bail.
The next major revision to U.S. bail law came with the Bail
Reform Act of 1984, which replaced its 1966 predecessor.
While the previous Reform Act had helped to overturn
discrimination against the poor, it had left open a serious
loophole that allowed many dangerous suspects to receive bail
as long as they didn’t appear to be flight risks. This new law
stated that defendants should be held until trial if they’re judged
dangerous to the community. The law also established new
categories of who could be held without bail -- mostly those
charged with very serious crimes, repeat offenders, the
potentially dangerous and anyone who might be a flight risk.
And finally, the act stated that those who were eligible for bail
had to have a bail hearing.
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For more information on bail and related topics, check out the links
on the next page.
Purposes:
The object of keeping an accused person in detention prior to, or
during the trial is not punishment but-
to prevent repetition of offence with which he is charged, and
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 favor 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 prima facie assumption of guilt against the accused.
There are varieties of purposes behind granting bail. This may
be, for example, for appearance before a court; for presenting
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appeal; pending reference revision; or for the purpose of giving
evidence etc.
Bail by Police:
An officer in charge of police station ids bound to grant bail in
bail able cases, and in improper refusal to do so will amount to a
violation of duty. A person arrested by the police under s. 55 of
the code should be given the option of release on reasonable
being furnished. The bail should not be excessive and no
needless impediment should be place in the way of being
admitted to bail. The intention of the law is that in such a case
the man is ordinary to be set t liberty and it is only when he is
unable to furnish such moderate security, if any, required him as
is suitable for the purpose of securing his appearance before the
court pending inquiry, that he should remain in detention.
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Conviction on bail able offence:
Section 496 will not apply when an accused person is convicted
of an offence there is no general offence is entitled as of right to
be enlarged on bail during the tendency of this appeal against
conviction.
Bail is always in the discretion of the court and this discretion
has of necessity to be exercised upon the facts and
circumstances of each case according to sound judicial
principles.
B. Non-bail able offence:
Whenever a court requires accused persons to furnish a bail
bond, the terms of the bail should normally be for attendance
and other conditions should not be imposed. This would be
more so in a cases where the accused is called upon to be of
good behavior; since there is a separating distinct provision of
law for this purpose. It would be improve to impose such
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condition in a bail bond and to ignore the provision of the code
which provide for such cases. But in the cash of non-bail able
offences a court may while granting bail to the accused impose
conditions other than fining of bail for the attendance of the
accused. Such conditions will not be illegal; An order imposing
a condition that the accused should confine their movements to
the municipal limits of the town as long as the session case way
pending and report themselves twice a day to the police station
was held to be not illegal. Where a woman is accused of man
bail able office and the situation was such that all her relations
within prohibitive degrees were arrayed against her and the
court ordered that she should furnish surety of one of such
relatives. The law does not contemplate the incorporation of
condition in the bail bonds, but it does not say that the courts
have no powers while granting bail to make sure that the
offences allegedly committed by the accused persons are not
repeated by them. Therefore, where the petitions have invoked
the special jurisdiction of the high court for grant of leave to
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appeal against the high courts order refusing bail it is essentially
a matter of discretion with court whether or not to grant this
leave on a consideration of the circumstances of the cases. It can
not be argued that the court has no powers to lay down
conditions on which it would grant leave in a given case.
Right of bail:
Bail is a matter of procedural privilege at the most, and not a
right of the accused at least until it is granted. The provisions
regarding bail are essentially a part of the law of procedure, and
as such, must be regulated by the law under which a particular
trial is held. The commission of an offence does not carry with it
a right of bail, such a right is dependent on the provisions.
Contained and statute and to the statute alone can the court look
for any right which the offender claims. Where the status does
not contain a specific provision in the matters; the view that no
procedure can be adopted, however reasonable and proper it
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may be, unless there is an express provisions sanctioning it in
the criminal procedure code, is hardly correct and there correct
principles is that in matters of procedure, a particular procedure
should be considered to be permitted if it is not prohibited.
There fore, bail may be granted in such cases on general
principles.
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Chapter Two
General provisions of Bail
a. When an accused surrenders in the court and applies for
bail, the subordinate court have jurisdiction to release
him on personal bond.
b. The courts should be liberal in this matter but the facts
and the circumstances of each case should be
considered and taken into account.
c. In cases of women and children courts should refer to
release them on personal bonds pending the disposal of
their bail applications as there is always a fear of sex
abuse and child awes in jail as well as police custody
and no one likes to report such outrages to the
authorities out of shame or other reasons.
d. The bail applications should be decided as expeditiously
as possible and should not be allowed to remain
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pending for long. If practicable the bail applications
should be considered the sum up.
2. Interim bail
No Magistrate, Sessions judge or any courts he jurisdiction to
grant interim bail during the tendency of bail application in that
court. Order granting short term bail quashed. It the magistrate /
sessions judge feel that such a course should be adopted and it is
always open to them chatter to dispose of the application on the
same day and in the alterative release the accused on executing
personal bond till the disposal of the application. It may be also
pointed out that the application is entitled to claim the benefit of
the provides to section 497 (1) Cr. P.C. Which contains special
provision for bail to women minors under 16 years of age and
sick or infirm persons no. Magistrate or Session Judge is
empowered to grant interim bail during the tendency of the bail
application.
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ail the session judge should dispose of his application. Ad
interim bail can not be allowed to continue simply because an
appeal against conviction is pending in the high court division.
Interim bail allowed continuing further on specific terms.
3. Temporary Bail
The court which has authority to try an issue and grant a relief
has authority and jurisdiction to consider and dispose of all
incidental questions pertaining to it. If a court has authority to
decide the matter, it has authority to consider a temporary bail or
parole or dealing with the custody of the accused and manner of
it till the required material is collected. The Delhi High court
granted bail in a security scam case on the grounds that the role
assigned to the accused did not prima faces make out any grave
offence maximum punishment for the offence being only 5
years no charge sheet having been submitted even after lapse of
two months and no police remand was sought for however the
high court imposed condition that he should not level the
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country and join the investigation as and when called for and his
passport should be kept by the court possess jurisdiction to
relapsed and accused on interim bail pending final disposal of
the bail application. No hard and fast rules can be laid down in
this regard. However few illustrations can be given where it
would be proper to grant such release.
1. Offence of trivial nature in which bail is generally
granted.
2. Women, children, minors and aged persons of 70 years
or more should invariably be relapsed on interim bail.
3. Students whose examinations are to commence should
also be given interim relief.
4. Cases in which accusations appear to be frivolous or
male fide. But release on interim bail is no ground for
grant of bail which has to be made only on merits. Once
an application for bail before arrest is admitted by a
court for regular, hearing it should in fitness of things
grant interim bail to the petitioner so that he is not
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arrested in the meanwhile because other wise there is no
point in entertaining and admitted his application.
5. Consideration of evidence of bail stage: It is not fore the
court of the stage of bail to evaluate the evidence but
merely to considered as to whether upon the material on
the record one of the ways in which can be done is to
consider as to whether upon the material on the record,
it on the record if no further evidence is called or be
found guilt or evidence is called or not. If he can be
then that would be a case where reasonable grounds do
exist for forming the belief required under section 497
of the code of criminal procedure and the high court
would be justified in refusing bail.
6. Condition for grant of bail: While granting bail the high
court should not impose such condition which would
amount to denial of bail. Where there for, bail was
granted by the high court to the accused on furnishing
security of taka 1 lack in case or in fixed deposit in
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nationalized bank with due sureties residing in the state
for like amount, the condition amounted to denial of
bail and is liable to be set aside. The conditions should
not be harsh, oppressive and virtually resulting denial of
bail. Accused prosecuted for offence relating to illicit
distilled liquor. He was directed to be released on bail
by depositing security with one surety in addition to bail
bond. While granting bail in billable offences the court
has no power to impose any condition except the
demanding of security with sureties. Where the accused
where ordered to execute bonds with secreting and a
condones whaps also imposed that they would not enter
upon the land in dispute for a particular period and that
they would not commit any breach of the peace. The
conditions where opposed to law and were deleted.
Similarly bail can not be granted subject to the
conditions that the accused shall desist from a
repetitions of the offence with which be was charged.
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7. Persons who may be enlarged no bail: The provisions of
section 496, criminal P.C are wide enough to cover the
cases, not only of an accused person, but also of a
person complained against who is present before the
court, although be may not have been hauled up as an
accused person. But in such case3s he can not be
considered to have been arrested at any stage prior or
subsequent to the grant of bail. Witness: A witness
arrested under a warrant and brought before a
magistrate can be enlarged on bail.
8. Stage of which bail may be granted: A judge has
jurisdiction to grant bail where the applicant is in the
lock up under arrest and it is not necessary in order to
invest the judge with such jurisdiction, that the accused
person must be put up before the court. Bail can be
granted at any stage of the proceedings, even after the
commencement of the trail, or after his conviction when
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he files an appeal against it, or when he is arrested on
appeal against his acquitted.
9. Reasonable ground: It was not permissible to allow bail
to an accused person where reasonable grounds to belie
that he was committed an offence were shown to exist.
Conversely where the court was satisfied that no
reasonable grounds existed to connect the accused with
the liability it was free to enlarge him on bail. The
actual test for grant or refusal of bail, there fore rested
on availability of reasonable grounds. Reasonable
grounds is an expression which connotes that the
grounds be such as would appear sufficient to a
reasonable man for connecting the accused with the
crime with which he was charged. It such grounds exist
tending to connect the accused with the crime, bail
should be refused, without the need to go into a duper
appreciation of the merits of those grounds and the
evidence on which they rested which function was to be
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assuming at the trial stage. If is not the prima facie case
against the accused but reasonable grounds for
believing that he has been guilty which prohibits
granting of bail. The onus is on the prosecuting to
disclose those reasonable grounds.
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Chapter Three
Guiding principle of granting bail
As a general rule bail should not be with held as punishment
unless the facts warrant such course. Courts exercising bail
jurisdiction should refrain from including in elaborate reasoning
in their order in justification of grant or no grant of bail. Bail
was not to be refused to accused by way of punishment and the
prosecution was required to show existence of reasonable
grounds and satisfactory evidence in support of offence alleged
against accused and if prosecution failed to establish same then
matter would become for further enquiry into the guilt of
accused and bail in such circumstances should not be withheld.
While granting bail 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, a
reasonable possibility of the presence of the accused not being
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secured at the trial, reasonalable apprehension of the witnesses
being tampered with the larger interests of the public or the state
and similar other consideration.
The matters for consideration in an application for bail may be
enumerated as follows:
a. Whether there is or is not a reasonable ground for
believing that the applicant has committed the offence
with which he is charged.
b. The nature and gravity of the charges.
c. Severity of degree of the punishment which might fall
in the particular circumstance is case of a conviction.
d. The danger of the alleged offence being continued or
repeated assuming that the accused is guilty of having
committed that offence in the past.
e. The character and means and standing of the applicant.
f. The danger of the application absconding if the is
relapsed on bail.
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g. The danger of witness being tampered with.
h. Opportunity of the applicant to repaired his defense and.
i. The fact that the applicant has already been some
months in jail and that the trial is not likely to conclude
for several months at least.
While dealing with a bail application the high court should
take in to account the various considerations such as-
i. Nature and seriousness of the offence.
ii. The character of the evidence
iii. Circumstance peculiar to the accused.
iv. a reasonable possibility of the presence of the accused
not being secured at the trail;
v. Reasonable apprehension of witness being tampered
with.
vi. The larger interests of the public or the state and
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vii. Similar other considerations which arise when a court is
asked to admit accused to bail in a non bail able
offence.
Chapter Four
Application for Bail
1. Form and contents
An application for bail or an affidavit supporting such
application should state clearly the grounds on which bail is
asked for and the reasons for such grounds.
Application to high court
An application for bail to the High Court should not include
defamatory allegations containing attacks on the trying
magistrate or other officers irrelevant and improper in
themselves. It is the duty of the defense counsel to satisfy him
about the correctness of the allegations made by him in the
application. It is not consistent with the responsibility of a
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counsel to make averments of fact in applications and partitions
on information proper for the officer to receive applications in
which averment o fact are made, when those of some one who
says that those averments our true.
2. Forum for application
Where the high court ordered that bail may be granted by the
magistrate after recording some evidence but the magistrate
found that the charge against the accused could be only fore bail
able offence he was right in admitting the accused to bail
without recording any evidence. If a magistrate has jurisdiction
to try an accused, he has the power to enlarge him on bail under
section 497, Cr. P.C. If a Magistrate has no jurisdiction to try a
case he has no power under section 497, Cr.P.C. grant bail to the
person arrested. In such a case the session judge and the high
court can release the arrested person on bail. A part from the
provision of section 498, a court of session an accused who has
been committed to it to take his trial. Section 497 deals with the
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powers of the trial court to grant bail while s. 498 deals with the
powers of the high court and the Court of Session to grant bail.
Chapter 39 excludes the existence of any additional inherent
owner high court relating to the subject of bail. Section 516-17
Cr. P.C. confers no such power.
Although the jurisdiction of the superior court where two courts
have concurrent jurisdiction is undoubted ordinarily and in the
absence of special circumstances the superior court should not
entertain a bail application without the inferior court being first
moved. But this practice is not inflexible, because section 498
gives unlimited judicial discretion to the high court in the matter
of granting bail. There is no hare to the high court entertaining a
bail. Application directly if peculiar such special circumstance
the application will not be entertained by the high court. It has
been held that where the once before, it had made some remarks
upon the heavier of the petitioner which would be likely to
prevent the sessions judge from giving a wholly free and
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independent consideration to the case, there is no bar to the high
court entreating a bail application direct.
Direct application to High Court
It is to be punted out that usually a petition for bail of an
arrested accused in not entertainer directly by the high court and
it is generally insisted that before coming to that court the
accused must approach the subordinate court in the first
instance. This procedure however, is subject to certain
exceptions, one of which is that where an accused was arrested
as a measure of preventive detention but the relevant detention
order was later on rescinded of which rescission the disclosure
was made only in the high court when the habeas corpus matter
come up for consideration then if the accused who is surprised
in this manner by the prosecution itself, files an application for
being released on bail the rule of directing the accused to
approach the courts below may not be insisted upon. The mere
fact that the applicant had traveled all the way to the seat of the
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high court and has incurred expenses in engaging a counsel is no
ground for entertaining an application directly in the high court.
3. Second application made to different judge
Where a bail application in a cases in refused by a judge of the
high court and a second application is made to another judge,
the latter con not go in to the merits of the case over again. He
should as a rule of propriety transfer the application to the judge
who heard the first application. He should not grant bail on his
own. This is specially so where the earlier order is challenged as
incorrect which can be done only before the Supreme Court.
One judge of the high court can not sit in appeal against the
judgment of another judge. Where the judge who passed order
on the first application was not available and was not likely to
be available for some time to come the bail petition may be
heard by another judge.
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4. Application to high court
The high court does not normally entertain direct application for
bail.
5. Transfer of application
The transfer of a bail matter or to put it in other words the
withdrawal of the sail application of the petitioner by the session
judge to his own court without notice to the petitioner is
certainly a matter of prejudice to the petitioner and the order
would call for being set aside on this ground alone.
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Chapter Five
Anticipatory Bail before Arrest
1. Meaning
A bail in anticipation of arrest or detention is termed as
anticipatory bail. A person is entitled to be relapsed on bail.
When he is arrested or is brought before a court. The judicial
opinion is conflicting on the issue whether a person can apply
for relapse on bail in anticipating of arrest or detention.
The Alahabad High Court held that bail can not be granted to an
accused that had neither been arrested nor detained by a police
nor appeared personally in court. The decision was based on the
following reasons:
1. The liability of a person to arrest is no restraint.
Nationally ever person is liable to arrest for anything
which the person having authority to arrest consider him to
have committed.
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2. When a person appears in court his very physical
presence resulted in his placing himself in them custody of
the court. Whether the court actually orders his being
taking in custody or allows him bail at once, nationally it
must be held that the person was in the custody of he court
and got his relapse on bail.
3. Appearing through counsel can not naturally result
is even national custody of the court over the person
concerned. It may be that the applicant might give his
address in application but there can not be any undertaking
that he would not more away from that place. The word
appear in section 496 and 497, Cr. P.C. does not
contemplate the appearance through counsel.
4. A person who is not in custody stands in no need
of order of bail. If he is not in custody he is free to go
wherever he likes, in the case of such a person an order of
bail can be rightly considered to be an unjustified restraint
on his movement instead of any to him.
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2. Main Conditions
The main conditions to be satisfied before exercise of
jurisdiction to allow pre-arrest bail under see. 498 Cr. P.C ares-
1. That the petitioner should physically surrender the
court.
2. That on account of ulterior motives part clearly on
the part of the police, there should be
apprehension of harassment and under irruption
humiliation by means of unjustified arrest;
3. That its should be otherwise a fit cases on merits
for the purpose of bail. In this behalf the provision
contained in section 497, Cr. P.C. would have to
be kept in mind.
4. That unless there is reasonable explanation, the
petitioner should have earlier moved the sessions
court for the same relief under section 498, Cr.
P.C ordinarily an application for bail before arrest
should be presented to the session judge.
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3. Conditions enumerated to grant anticipatory bail
The considerations which weight with the court while granting
bail under section 497 or section 498, Cr. P.C are:
1. The nature and gravity of the circumstances in which
the offence is committed.
2. The position and the status of the accused with
reference to the victim and the witnesses.
3. The likelihood of the accused fleecing from justice.
4. Of repeating the offence
5. Of jeopardizing his own life being faced with a grim
prospect of possible conviction in the case.
6. Of tampering with witness;
7. The history of the case as well as of his investigation;
and
8. Other relevant grounds which may apply to the facts
and circumstances of a particular case.
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4. Duration of anticipatory bail
In Gurbaksh Singh Vs. State, the court made it clear that the
pertain of an order p[assed under sec. 438 (1) need not
necessarily be limited in point of time. the court may if there are
reasons for governed by Terrorist Areas. Anticipatory bail under
sec. 438 can be granted to persons accused of offence under the
Karnataka Forest Act, 1963 and apprehending arrest by the
Range forest officer.
5. Cancellation of anticipatory bail
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
sliders, such and order is not an order of cancellation of the bail.
Therefore, the principles no which the bail can be cancelled
would not be attracted when interim anticipatory bail is canalled
on hearing both side. It has been held that where an anticipatory
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bail is granted on giving full hearing to the public prospector
and repeated attempts to have it cancelled have failed it can not
be cancelled unless fess materials are placed and the conditions
for cancellation of bail as provided under sec. 439 (2) are
fulfilled. Rejection of bail in 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 circumstance are necessary for an order directing
the cancellation of the bail, already granted. Generally speaking
the grounds for cancellation of bail, broadly illustrative and not
exhaustive are interference or attempt to interfere with the due
course of admistatioin of justice or evasion or attempt to evade
the true course of justice or abuse of the concession granted to
be accused in any manner.
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Chapter Six
Bail in case of woman aged person, sick infirm and mental
disturbed person:
1. Woman accused
The law permits granting of bail even in a case where there are
such resonate grounds for refusing bail in the case of any
woman or any sick of infirm person. Accused a woman detained
in judicial lock up with sucking body. Alleged confessional
statement exculpatory in nature and not involving accused in
commission of offence. Accused granted bail in circumstances.
Even in cases where a person is accused of an offence
punishable with death or imprisonment for life and there appears
reasonable ground for being that he has been guilty of such
offence, the court may release the accused on bail if the person
is under the age of 16 years or a women or any sick or infirm
person.
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The case of women descries special consideration. Merely
because chancre sheet has been submitted against her under
section 302/109/34 penal code, she is not automatically debarred
from getting bail.
Under section 497 it is open to a court to grant bail to women
even in cases where she is accused of an offence which is
punishable with death or imprisonment of life.
But a women con not claim the benefit of the concession as
provided in the first provision to sub section of section 497 Cr.
P.C as a matter of right. The court must exercise its discretion
on a proper appraisal of the facts and the surrounding
circumstances of the case not unmindful of the fact that this
concession is provided in heinous cases of murder. Grant of bail
to women is not a matter of right yet interim of legislature
appears to be that bail should invariably be granted to a woman
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unless any special circumstance exists on record to warrant
refusal of bail.
A court should grant bail to a woman even when she is accused
of murder. Where there was no evidence to show that woman
accused has been party to conspiracy to commit murder they
were enlarged on Bain. In such circumstances the existence of a
suckling baby may be an additional ground in favors of grant of
bail.
2. Age of accused
Age by itself would not be a ground for grant of bail. All the
attending circumstance are to be taken into consideration.
However, it must be kept in mind that prison to section 497 (1)
Cr. P.C constitutes an exception invite case of heinous offence
punishable with death or life imprisonment.
44
Accused a boy of 12 days short of 16 years age at time of
occurrence. Case falls within provision of section 497 (1).
Proviso however is discretionary. Release of a accused on bail is
not. Accused giving most serious Knife blow on back of chest
thereby showing him to be a person of desperate character not
entitled to bail. Where grounds existence to believe that the
petitioners where not guilty of an offence punishable with death
or imprisonment for life and the accused was a young man of
16/17 years old, the case was held to be covered by provisos
section 497 Cr. P.C. and bail was all wed.
A delinquent juvenile is entitled to grant of bail unless court
comes to conclusion that there appeared to be reasonable ground
for believing that relapse of juvenile was likely to bring him in
association with known criminal or expose him to moral danger
or his releases would defile elands of justice.
45
Accuse appeared to be a young boy and had no previous record.
Ground existed for further inquiry also into guilty of accused.
Accused was released no bail in circumstances.
3. Bail on ground of sickness
Person actually sick or infirm may be released on bail even in
case of charge involving death or classes’ sentences. For grant
of bail on ground of sickness it is not essential that the aliment
should be of an alarming nature which may endanger the life of
accused, but the initial requir4ement is the satisfaction of the
court. Bail was sick person and was an old heart patient and had
been operated for by pass surgery and was on regular
medication and diet.
Accused contended that his health condition was such that he
could not take strain of any nature and his remaining in jail
would be detrimental to his health and life. Considering the
medical certificate issued by the National Institute of
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Cardiovascular Disease, treatment and care of cardiac ailment of
accused was not possible in jail. Accused was also entitled to
grant of bail as two main accused heed already been released on
bail. Petitioner accused was ordered to be relapsed on bail, in
circumstances.
Accused suffering from active pulmonary. Tuberculosis of both
lungs with multiple cavitations and advised regular treatment for
a considerable period. His wife (Other Co-accused having a
small suckling child to be looked after). Both accused granted
bail in circumstance. When want to be medical treatment entails
likelihood of risk of his bail may be granted.
Every sickness or infirmity can not be ground for bail. The
nature and seriousness of the sickness has to be seen. Where the
proper treatment of the accused is possible in jail he is not
entitled to bail on the ground of Sickness. When a wife or other
dependent of the accused in of the accused is suffering from a
47
chronic disease and the trail is not start in the near future bail
may be granted for a short period.
4. Sick and infirm:
A Sick or infirm may be released on bail even in a case of
capital punishment.
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Chapter Seven
Refusal, Rejection and Cancellation of Bail
Refusal of Bail
1. Introduction
In refusing to grant bail it is generally necessary to see whether
there are reasonable ground for believe that the accused has
committed some offence and secondly that whether he is likely
to tamper with the evidence during his enlargement ob bail.
The court is take in to consideration the gravity of the offence
alleged, the heinousness of the charge, and the possibility of
abscission and tampering with the witness and on the
consideration prayer for bail may be refused.
While considering the qu3siton whether a case fell within the
prohibition constrained in sub section of section 497, CR. P.C.
the courts are not supposed to keep in view only the maximum
sentence of transportation for life. Provided in the relevant law.
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2. Bail may be refused to an accused person: on certain grounds:
1. Where that is likelihood of the accused absconding it he is
released on bail.
2. Where there is likelihood of the accused tampering with
the prosecution evidence.
3. Where there are the dangers of the offence being continued
or repeated if the accused is left on bail.
4. Where the character, behavior and previous conduct of the
accused are such that it is desirable to leave him at large.
5. Where taking the nature and gravity of the offence, the
nature of the evidence is support of the accusation and the
severity of the punishment which the convicting will
entail, consi9deratin, the court is of onion that he accused
should not be enlarged on bail.
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Rejection of Bail
Grounds of Rejection
Where the accused was released on bail but subsequently the
was found abusing his bail, the Madras high court cancelled his
bail relying on the illustrative grounds given in Aslam Baba Lal
Desai Vs. Maharshatra which are as under.
Where the accused
1. Indulges again in similar activities,
2. Interferes with course of investigating
3. Attempts to tamper with evidence
4. Threatens witness,
5. Likelihood of his fleecing to other country,
6. Makes himself unavailable to investigation agency
beyond reach of surety.
A bail was not allowed to be cancelled on the basis of certain
factors of which the court granting the bail was fully aware.
Where bail was granted by the then presiding judge at the initial
state it could not be cancelled shoot by the successor judge after
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filling of the charge sheet in the case unless proper application
for its cancellation was moved and a case for its cancellation
was made our after hearing both the parties. Where the session
judge granted anticipatory bail, the high court refused to cancel
the bail as no cogent reasons or overwhelming circumstance
could be shown for cancellation of the bail.
2. Rejection of successive bail application by High Court
Where in spite of two successive bail applications having been
rejected by the high court in a number 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.
3. Rejection of bail:
No person shall be deprived of his life and personal liberty
except according to procedure established by law. Deprivation
52
of freedom by refusal of bail is not for punitive purpose by for
the bifocal interests of justice to the individifual implied and
society affected.
4. Refusal to grant bail after specified period:
A perusal of section 426 (1-A) shows that bail is to be allowed
in such cases if the appeal has not been disposed of within two
years, but the same could be refused fur the reasons to be
recorded by the high court.
Cancellation of Bail:
1. Principle for cancellation of bail:
Where bail has been granted, its cancellation should no follow
in the ordinary course. There has to be sometime in the nature of
miscarriage of justice or improper excessive of discretion which
alone can justify the cancellation. However, the court has the
power in certain situations to cancel the bail if the facts warrant
no course other than refusal to grant bail. Where victim of a
53
murderous assault sustained as many as nine injuries including
four on the head became semi unconscious at the time of
medical examination and his condition became serious. The
petitioners were allowed bail on the grounds that the callowness
complete against them petitioners were neither bad mashers nor
any apprehension was expressed that they would influence the
prosecution case. Bail was not cancelled. But where the
accusation was of murderous assault on processeciton witness
and giving him a grievous blunt weapon injury on the jaw, just
missing neck but uprooting 2/3 teeth. Bail was cancelled. Where
the person of declassed and was apprehended along with
incriminating knife at the sport. The bail of the accused was
cancelled in spite of his tender age.
2. Grounds of cancellation of bail:
The courts if it grants anticipatory bail must expressly make it a
condition that if the petitioner commits any breach of the terms
of bail, the court concerned will be at liberty to cancel his bail
54
and take him into custody. If has been emphasized that very
cogent and overwhelming circumstance are necessary for an
order seeking cancellation of the bail. Even where prima facie
case is established the approach of the court is not that the
accused should be detained by way of punishment, but whether
presented of the accused would be readily available for trial or
that he is likely to abuse the discretion granted in his favor by
tampering with evidence. Bail may be cancelled on the
following grounds.
1. When the person on bail commits the very offence or
other offence for which he is being tried or has been
convicted.
2. When it is found that the accused is tampering with
investigation.
3. When the accused is found tampering with evidence.
4. When the accused is found absconding or having gone
out of control of sureties.
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5. When it is alleged that the accused is terrorizing the
witness and committed acts of violence against the
police.
6. When it is found that the subsequent events make our
non-bail able offence or a graver offence.
7. When the high court found that there was a wrong
exercise of judicial discretion to grant the accused bail.
8. When the circumstances were proved that the accused
has misused the liberty granted to him it is sufficient
ground to cancel bail.
Where once pre-arrest bail is granted to accuse very strong
reasons and grounds would be require for cancellation of the
same.
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3. Cancellation of bail on ground of suppression of material
fact
Where an accused obtains an order of bail in his favor by
misrepresenting true facts and in fact by playing fraud upon and
an order for bail is bound to be recalled. It appears in
consideration of the materials on record that the accused person
played a fraud upon the session’s judge by suppressing the fact
that earlier their application under section 498 Cr. P.C was
rejected by this court after hearing the parties at length. As it
was not pressed the rafter in order to prevent the court from
passing a harsh order it is accordingly directed in the interest of
justice and for ends of justice that the session judge. Shall take
appropriate action accord to law against the accused persons and
pass an order for their arrest immediately.
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Consequences of cancellation of bail
The cancellation of pre-arrest bail by the court, of an accused
person who was not in custody and was admitted to interim bail,
did not entail the consequence that he had to be ordered to be
given into police custody. It was emphasized by the Supreme
Court that proper order to pass in those circumstances was to
cancel ad-interim bail and to leave the accused person to be
death with by the police, as they thought fit.
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Chapter Eight
Bail Bond, Sureties and Forfeiture of Bail Bond
1. Bail Bond
According section 499, Cr. P. C lays down that
1. Before any person is released on bail or released on his
own bond, a boned 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 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, court of sessions or other court to answer
the charge.
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2. Bond without sureties
Where a person accused of a bail able offence holds ha high
position in government service he should be released on a
personal bond without sureties instead of bail.
3. Conditions in bail bond
The court can grant bail on the condition that the person shall
attend at the time and place mentioned in the bail and that would
cover nonattendance before the police but it does not over such
conditions as have been imposed in criminal cases, station twice
daily in the morning and in the evening to give hajira before the
police officer. A conditions that the accused will not deliver any
speech until the disposal of the case under section 124-A, penal
code pending against him, or that the accused should not reside
within the limits of a certain town for a certain town for a
certain period or that they should not can act any drama is
beyond the jurisdiction of the magistrate. The court can not
incorporate in the bail bond a condition that the accused should
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desist from repletion’s of the offence charge. Similarly the court
can not put any restrictions on his movements. When the
accused, though granted bail, is ordered to be sent to an
institution and live there under the order of the court, and is not
released within the meaning of this section.
4. Security
Section 499 Cr. P.C contemplates the execution for a bond with
sureties and not a cash deposit. A Magistrate has no power to
require an accused person to deposit a sum of money in court as
surety for haws attendance in court at a given time. However,
section 513, Cr. P. Code was canceled in the interest of the
person who, because they may be strangers in the locality
position to arrange for bail or able to offer sureties. In the case
of these person if they offer a cash deposit the court is abode in
its discretion to accept that deposit in lieu of a bond but neither
section 499 nor S. 513 of the code conditions any thing which
authorities a Magistrate of his own accord to insist on the
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deposit of a sum of money as security in the place of a bond. It
is an enabling provision and provides that except in cases of
bonds for good behavior, a court or officer taking bond may in
fit cases, relieve a person of his obligation to execute a bond,
and in lieu there of take cash deposits. The deepest under this
section is in lieu not only of the bond to be executed by the
principal but also of the bond to be executed by the sureties.
5. Fitness of surety
The court has to verify the solvency of the surety and the fitness
of surety before accepting the same. A particular person may be
solvent but he may not be a fit person to stand as surety. Such
determinations being a judicial function in necessarily implied
that the verification should be based upon proper inquire and
there should be some material on record to justify a finding of
this nature.
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6. Forfeiture of bond
Under section 514, CR. P. C it is for the court to determine
whether the conditions of a bond have been broken and the bond
is forfeited. The provision being of penal nature has to be
strictly construed. A perusal of the provision of this section
shows that three stages are concmplanted for a proceeding under
the section. Firstly, a declaration of forfeiture. Secondly, the
order for payment or to show causer, and thirdly steps to be
taken for the recovery of the amount. The declaration of
forfeiture must be proved upon cogent grinds establishing to the
satisfaction of the court that the forfeiture has taken place.
Advantages and Disadvantages about Bail:
Advantages for the Defendant:
The advantages of bail for the defendant are quite easy to
understand. It allows them the right to remain free until the end
of the trial period, which if they are innocent means they haven’t
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had to endure any unwarranted jail time, and if they are guilty
gives them that last few weeks, sometimes months with their
friends and family before facing their punishment. During the
time of a trial it is extremely stressful and being imprisoned
during it can make the experience ten times worse and make
meetings with lawyers a lot harder, jeopardizing the case.
Disadvantages for the Defendant:
That being said there are some major financial disadvantages for
the defendant, which if innocent proves an unwanted, unneeded
and unjust waste of money. And if guilty may cause financial
ruin to loved ones who just wanted to help.
It is often criticized but in the US, during the trial period the
court sets a bail amount in relation to the crime, of which the
defendant can pay in order to remain free as long as they attend
all the court hearings. (Obviously if they are then found guilty
they go to jail). In order to pay such a fee the defendant or often
the defendant’s friends or family visit a bail bond agency, who
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are more than happy to pay the bail for a 10% (sometimes more)
non refundable fee? As long as the defendant attends all court
related dates the agency gets the bond repaid, yet still keeps that
original fee for their services.
The main problem with this, other than profiting off somebody’s
poor life decisions (or somebody totally innocent), is the fact
that if the defendant skips bail the agency may repossess their
home and other assets to cover the bail. If the arrangement was
sorted out by a loved one then the debt could fall on to them,
when all they may have been doing is trying to help. No mother
wants to see their son a criminal.
Advantages for the State:
Allowing a defendant to be released on bail, although maybe
risky cuts the funding needed to detain them. Prisoners have to
fed and looked after, which isn’t free. Ok the cost of one person
isn’t a lot but with thousands of people brought in each week it
can cut a considerable amount of expenses.
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Although a rather cynical view, if the bail amount isn’t enough
to scare the victim in to showing up in court then the state gets
to keeps the amount which was paid by the defendants bail
agency leaving the debt with them.
Disadvantages for the State:
The major disadvantage that the state might face when granting
bail is that the defendant may never come back, going on the run
or fleeing the country. Although they get paid the bail amount
there may be a dangerous criminal on the loose. In the long run
this may also waste government spending trying to track down
the individual. Many feel it would be safer to keep everyone
detained.
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Chapter Nine
6.1 Problems and Findings:
The problem I faced to prepare this research paper has not been
that much. Though there has not been a good number of books
in this regard. The whole issue is described and prescribed in
The Code of Criminal Proceeding.
The Internet has been a great source of information but it
provides only the bail issue of some present significant cases.
The topic being a very important and sensitive one has been
very interesting to work on.
There has not been that much research or study on so far I know.
Though there has been a criticism of bail that makes easier for
an accused to escape the legal proceeding.
67
There should be more careful and strict authority with sufficient
laws to compel the accused to follow.
To prepare the paper I have discuss the issue with some lawyers
and lecturers and professors to clarify the points on which I have
to work on.
After all these problems, I have collected all information which
are necessary to prepare my research paper.
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Chapter-Ten
Conclusion
The foregoing discussions reveal that in Bangladesh perspective
it bail is practiced as considerable issue. But it should be
practiced on the basis of merit. In other countries until judgment
is pronounced accursed are free from custody. 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 a 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
69
or imprisoned is placed in the custody of those (surety) who
bind 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 die 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 liim 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 may
discharge themselves by handing him over to the custody of law
and the result would be that he (the prisoner) would be then
imprisoned.
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Suggestion
I have following suggestion to implement the Bail in Criminal
Cases.
1. Government should take initiative to stop arbitrary
arrest and detention by repeal or amending all Bail in
criminal cases.
2. An option of judicial review should be given to those
who are arrested under such laws.
3. Since our constitution gives the authority of making
preventive detention laws, so the constitution must
contain provision describing the certain specific period
when the law shall be exercised i.e. only in time of
grave emergency or war.
4. Article 33 (3) (b) of the constitution deprived the
detainee from the fundamental rights ensure by article
33 (2) which provides that every person who is arrested
and detained in custody shall be produced before the
magistrate within 24 hours and right to counsel under
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article 33 (1) of the constitution and these are
fundamental human rights guaranteed by constitution
itself. Such a provision should be repealed because it is
the clear violation of these rights.
5. The detenu shall be informed immediately about the
grounds of his detention with facts and particulars.
Which enable him to make a effective criminal cases.
6. The opportunity to challenge the legality of their
detention order before a court of justice should be
provided towards all detenu who are detained under
preventive detention laws.
7. They shall be granted immediate and regular access to
lawyer, their family and medical assistance.
8. The detenu shall not be subjected to torture and other ill
treatment in detention.
9. All allegations of oppressions should be quickly and
immediately investigated.
10. The orders and directions should be obeyed entirely,
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immediately and strictly.
11. Judicial detention is preferable to executive
detention. In order to ensure the proper functioning of
democratic environment and to maintain the standard of
criminal cases, the above recommendations should be
ensured and practiced.
Eventually, the criminal cases may add aforesaid provision in
our constitution or in the laws criminal cases for which will be
specifically mentioned that the preventive detention law can not
be used by government except in times of emergency, war or
external aggression.
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References
Books
1. Miah , Siddiqur Rahman, “The law on bail”: New warsi
Book Corporation, (1st edition, Dhaka, 2002).
2. Hassan, K.E, “Criminal trial, Bail and civil litigation”
Kamrul Book House, 2nd edition, Dhaka 2004
3. Halim, Md. Abdul, “The Legal System of Bangladesh”,
Nazim Book House, 1st edition. Dhaka-2005.
4. Houqe, Md. Zohurul, “The Code of Criminal Procedure”,
Siddique Book House, 3rd edition. Dhaka-2004
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