CrPC II Final Term Answer Paper

Submitted by:

Tanvir Mahtab

9th semester, Fall’20

Course: CrPC I

ID: 181100018

Section: 01

Submitted to:

Saidul Islam

Assistant Professor, Dept of Law

Eastern University.

Date of submission: 28/1/2021

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Question: An analysis of the law and practice of bail under the CrPC 1898.
Answer:
While bail can be traced to ancient Rome, our traditional American understanding of bail
derives primarily from English roots. Bail has been recognized as a process of releasing of an
accused from the custody of police under certain conditions temporarily. Generally, bail is
some form of property deposited to a court to persuade it to release a suspect criminal from
jail, on the understanding that the suspect criminal will return for trial or forfeit the bail.1 In
some cases bail money may be returned at the end of the trial, if all court appearances are
made, regardless of whether the person is found guilty or not guilty of the crime accused.
In English law, bail is the freeing or setting at liberty a person arrested on security, surety for
his appearance on a certain day and place named. Bail has been defined by Black’s Law
Dictionary in the language that “security required by a Court for the release of a prisoner who
must appear at a future time”. From another point of view, Bail is a safety measures which is
given for the due appearance of a person who is ar-rested or imprisoned to get his or her
temporary release from the legal custody.2 The United States Supreme Court equated the
right to bail to a “right to release before trial,” and likened the modern practice of bail with
the “ancient practice of securing the oaths of responsible persons to stand as sureties for the
accused.3
In some countries, granting bail is a common practice in the court. In this sub-continent
especially in Bangladesh, bail has been developed as of fundamental rights of an accused.
All these give us an idea that for bail, there are some requirements. They are,
 Surety
 Security money
 Bond
Surety:
The surety is termed bail because the person arrested or is placed in the custody of those
surety who bind themselves or become bailer for his due appearance when required. Surety
must be of the person who has authority to bail the arrested person to appear before the court
on a certain date. The surety’s responsibility over the accused was great and was based on a
theory of continued custody, with the sureties often being called “private jailers” or “jailers of
the accused’s own choosing.”4 However, surety must be reliable and his solvency should be
verified. Accused has the authority to choose his surety by himself.
Bond:
The gradual evolution from a personal surety system using unsecured bonds to the now
familiar commercial surety system using secured bonds in America began with the Norman
1
S. Islam, G. Moula, The Right of Getting Bail of an Arrested Person in Bangladesh—A
Legal Study of Theories and Practice, (2014) Beijing Law Review, 35
2
Akkas, S. A. (2009). Law of Criminal Procedure (2nd ed., Dhaka: Ankur Prokashani.) pp.
243-245.
3
Stack v. Boyle, 342 U.S. 1, 4-5 (1951)
4
Reese v. United States, 76 U.S. (9 Wall.) 13, 21 (1869)
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Invasion. Bail bond is a simple contract between the court and the surety whereby the custody
of the person is given to him and for his production in the court according to the terms of the
bond. The bail bond is executed by both the person in bail and the surety. But under section
514 it is permissible for the court to accept a bail bond executed by a surety only when the
person in bail is minor. The bonds contemplated by the CrPC are documents intended to
secure the appearance of the persons arrested.5
Security money:
A security is a sum of money or other valuables that is deposited with the court to ensure a
defendant surrenders to custody. The security may be provided by the defendant personally or
from a third party.6 Security money is fixed by the court or the police officer is to be
mentioned in the bond as mentioned under section 499. Section 498 states that the amount of
security money under this Chapter shall be fixed with due regard to the circumstances of the
case and shall not be excessive. The money may only be deposited if the court considers that
it is necessary to secure the defendant’s attendance at court. If the defendant fails to surrender
to custody it may be forfeited by the court either wholly or in part, unless there appears to be
a reasonable excuse for his absence.
Bail can be of various types. Some of them are discussed below:
Right to bail in bailable offence:
Bailable offense are discussed in the 2nd schedule of the Code of Criminal Procedure, 1898. A
bailable offence is offence where bail can be claimed as of right. The accused is given bail as
soon as he fulfills all the conditions of the bond. Section 496 discussed about bail in bailable
offences. It alludes that When any person accused of a bailable offence is arrested or detained
without warrant such person shall be released on bail. 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 bailable offence, on bail, provided
he is prepared to give it, or on recognizance. In the case of Meah Mahmud Ali Qasuri vs.
State, the court observed that in bailable offences, the person accused has the indefeasible
right to grant of bail subject to satisfactory sureties being offered if necessary.7 The Hon'ble
Supreme Court in a case held that, “As soon as it appears that the accused person is prepared
to give bail, the police officer or the court before whom he offers to give bail, is bound to
release him on such terms as to bail as may appear to the officer or the court to be reasonable.
It would even be open to the officer or the court to discharge such person on his executing a
bond as provided in the Section instead of taking bail from him”.8 The court or police may
ask for securities or executing a bond for his appearance in the court. In such case, the
seriousness of the offence is immaterial for the purpose of bail, provided that the offence is
bailable.9 Bail can be granted to an accused under section 496 at any state of the proceeding

5
Md. Abbas vs Crown, 2 PCR 28.
6
Lexisnexis < https://www.lexisnexis.co.uk/legal/guidance/securities-sureties-other-
conditions-of-bail> Accessed January 24, 2021
7
15 DLR (SC) 429.
8
Rasiklal Vs. Kishore Khanchand Wadhwani (AIR 2009 1341)
9
Shahidul Islam, Golam Moula, The Right of Getting Bail of an Arrested Person in
Bangladesh—A Legal Study of Theories and Practice, (2014) Beijing Law Review, 3
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before the conviction.10 Hon'ble Supreme Court in Maulana Mohmmad Amir Rishadi vs.
State of U.P. and others held that, merelyon the basis of criminal antecedents, bail cannot be
denied.11 In Sumit Vs.State of U.P., it was held that even if there are other criminal cases
pending, accused should be granted bail.12

Bail in non bailable offences:

Section 498 deals with the right of bail in non bailable offences. In such case, bail is not the
right of the parties, rather, it is a discretion of the court. Section 498 states, when any person
accused of any non-bailable offence is arrested or detained without warrant he shall not be so
released if there appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life. But if there are no 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 be released on bail. Thus, this
section empowered two authorities to grant bail, the court and the police officer in charge.
Under this section, court can grant bail only in the absence of prima facie case against the
accused.13 If the offence is punishable with life imprisonment or any other lessor sentence and
is triable by Magistrate, then the Magistrate has jurisdiction to consider the bail application.14
Getting of bail in non bailable offence, magistrate must record response in support of his
order.15 Another case holds that, bail should be accepted on very strong grounds in case of
non bailable offence.16

Stages of Bail petition:

Application for bail can be made at the first appearance of the accused before the court. As
per article 35 of the constitution every arrested person shall be brough before the court within
24 hours. Thus, the accused shall make the application for bail to the magistrate. If the
magistrate rejects the application, the accused may appeal to the court of session. Once the
appeal I disposed of, he may apply for bail in the magistrate court with fresh grounds.
Magistrate can grant bail at any stage of the suit.

Cancellation of bail:

10
Sadiq Ali vs State, 18 DLR SC 393
11
2012(2) Mh. L. J. (Cri.) 412
12
2010 Cri.L.J. 1435 (SC)
13
Muhammad Ishaq vs Farman Shah, 16 DLR WP 72
14
Ambarish Rangashahi Patingare vs State of Maharashtra, 2010 All MR (Cri) 2775. (Bom)
15
Ghulam Qasim vs Langra 10 DLR WP 3
16
3 PLD (Pesh) 37
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Section 497(5) states that bail can be cancelled by High Court division and court of session.
Again, any court may cancel the bail and arrest the person who the court released.
Furthermore, the magistrate granting bail can alone cancel it.17
Reasonable Grounds for Granting Bail:
In the case of Sheikh Shahidul Islam vs. State the court held that the actual test for grant or
refusal of bail rested on availability of rea-sonable grounds.18 It is not acceptable to permit
that bail to an accused person where reasonable grounds to believe that he was committed an
offence. Granting bail on reasonable grounds is an expression that the grounds be such as
would appear sufficient to a reasonable man for connecting the accused with the crime with
which he is alleged. If such grounds exist tending to connect the accused with the crime, bail
should be refused without the need to go into a deeper appreciation of the merits of those
grounds and the evidence on which they rested which functions was to be assumed at the trial
stage.19 It is found that the responsibility is on the prosecution to disclose those reasonable
grounds of not accepting the bail.20 In order to ascertain the “reasonable grounds” for
believing that accused has been guilty of specified offences it would be seen if a prima facie
case is disclosed against the accused on the basis of FIR, statements of prosecution witness
recorded according to CrPC. Similarly where reasonable grounds are not disclosed but
grounds exist for a further investigation and inquiry, the case will fall under section 497 (2),
in which case again bail should be withheld.21
But moreover, in the case of Nurul Huda v State the court held that the grant of bail is the
discretion of the court and the court could consider the exercise of discretion if it is satisfied
in the facts and circumstances of the case that the trial cannot be concluded within the
specified time.22

Circumstances Where Bail Not Be Granted:

There are some situations, where bail shall not be granted such as,
 The court held in the case of Mang Karai vs. The State that when there is a chance of
tampering, but the mere allegation is not enough. There must be material evidence to
prove that the witnesses may be tampered with.23
 When there is likelihood of the accused absconding. In proof of absconding the past
conduct of the accused has to be seen.
 It was held in the case of Venakataramanappa vs. K. R. Subramany Setty When there
is prima facie case against the accused of grave offences and apprehension of
tampering with evidence bail cannot be granted.24

17
Abdul Kader vs Crown, 7 DLR 637.
18
1992 P. Cr. LJ 2597, BLD (1993) (AD) 190.
19
20 DLR (SC) 295.
20
44 DLR (AD) 192.
21
20 DLR (SC) 295.
22
55 DLR (AD) 33
23
AIR 1967 Tri 32 = 1967; State vs. Mahbub Ali, AIR 1957 Bom, 548.
24
1991 (2) Crimes 648 (Kar).
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  When the overt act on the part of the accused alleged in the F.I.R is corroborated by
post-mortem report, the rejection of the bail application is justified.
These are some of the situations, when bail must not be granted.

Ad Interim bail:
There is no express legal provision regarding ad interim bail. However, this kind of bail can
be granted at any stage of the case by the inherent power of the court. If the case is pending in
the magistrate court application for ad interim bail will have to be filed in the session court
and if the case in pending in the session court then the bail petition is filed in the High Court
Division. An ad interim bail may be pending appeal or revision.

Anticipatory bail:
Anticipatory bail means bail before arrest. It is a special kind of bail. When any person has
reason to believe that he may be arrested on an accusation of having committed a non
bailable offence, he may apply to High Court Division or the court of sessions for a direction
and the court may if it thinks fit, direct that in the event of such arrest, he shall be released on
bail. The anticipatory bail may be granted when the offence are bailable or non-bailable and
non-cognizable.25 In a proper case, the High Court Division has the power under section 498
to make an order that a person who is suspected of an offence for which he may be arrested
by a police officer or a court shall be admitted to bail.26 But, ordinarily an application for bail
before arrest should be presented to the Sessions Judge.27 The High Court does not directly
entertain bail applications unless in the first place remedy before the Court of Session is
exhausted.28 Though the power given in this section is very wide and can be exercise by both
the High Court Division and the Court of Session in any case without any limitation, there are
some Conditions for Anticipatory Bail. They are:
 There should be a genuine apprehension of imminent arrest of the accused.
 The petitioner should physically surrender to the Court.
 On account of ulterior motives particularly on the part of the police, there should be
apprehension of harassment and under irreparable humiliation by means of unjustified
arrest.
 It should be otherwise a fit case on merits for exercise of discretion in favour of the
petitioner for the purpose of bail. In this behalf the provisions contained in section
497 of CrPC would have to be kept in mind.
 unless there is reasonable explanation, the petitioner should have earlier moved the
Sessions Court for the same relief under section 498 of CrPC.29

25
NLR 1983 Cr. LJ. 43 (1).
26
1 PLD (Lah) 21.
27
PLJ 1973 Lah. 524.
28
22 DLR (WP) 216 = 1970 P. Cr. LJ. 188 = 1973 P.Cr.LJ. 163
29
PLD 1973 Lah.256.
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  the nature and gravity of the circumstances in which the offence is committed should
be considered.
 the position and the status of the accused with reference to the victim and the
witnesses should be observed.
 It should be ensured that the person shall not flee away from the justice.

Duration of Anticipatory Bail:

In Gurbaksh Singh vs. State, the Court made it clear that the operation of an order passed as
an anticipatory bail under CrPC needs not necessarily be limited in point of time.30 Thus, it is
the discretion of the court regarding the duration of anticipatory bail.
Bail after conviction:
Section 496 and 497 have no application where a person has been tried and convicted even
though the conviction is for bailable offence. Section 496 and 497 are in terms confined to
accused person and a person after conviction ceases to be an accused. When a person in
convicted and made an appeal in the higher court, he may be apply for bail during the period
of pendency of appeal.
Importance of bail:
Bail is considered as a right of the person. In Khemlo Sakharam Sawant Vs. State of
Maharashtrax it was held that Bail is rule, and jail an exception.31
When a suit is in motion, the accused is considered as innocent until he is proven guilty. And
it is unwise to detain an innocent person in the custody. Thus, bail is to ensure the right to
freedom of movement of the arrested person until proven guilty ensured by article 36 of the
constitution of Bangladesh.

Side effect of the provision of bail:

There are some dark side of bail. Such as,
 The accused may be fled away from the hand of justice.
 The accused may temper the evidence submitted against him.
 He may suppress the victim to withdraw the case which is a very common incident in
our country.
 He may manipulate the witness from giving evidence against him.
 He may in some case make any harm to the witness or victim.

This was all about bail under CrPC. So far, this paper discussed about what is bail, its
importance and dark side, different types of bail and conditions and grounds of bail.

30
1980 AIR 1632, 1980 SCR (3) 383
31
2002(1) BOM C.R. 689
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Bibliography:
 The Code of Criminal Procedure, 1898
 Abdul Halim, Textbook on Code of Criminal Procedure
 CrPC DLR
 Shahidul Islam, Golam Moula, The Right of Getting Bail of an Arrested Person in
Bangladesh—A Legal Study of Theories and Practice
 Website of Lexisnexis.