Man is born to be free and can sacrifice anything for being free. The concept of bail emerges from the skirmish between the police ‘power’ and to restrict the liberty of a man who is alleged to have committed a crime and 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 emancipation or setting at liberty a person arrested or imprisoned on security or on surety being taken for his appearance on certain day and place named.
The essential sense of bail in Bangladesh is to release a person from the custody of police and deliver him/her into the hands of the sureties who undertake to produce him in court whenever required to do so. The basic principle of law regarding release on bail is that an accused person is presumed in law to be entitled to freedom and every opportunity of look after his case. The effect of granting bail is not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of sureties with bond. But the necessary corollary is that it is open to the sureties to surrender the accused released on bailed at any time and discharge them from the liability of a surety. The main two objectives of detention during the trial are to prevent repetition of offence with which he is charged and to secure his attendance at the trial. In spite of above objectives bail is granted to the accused depending on the principle of presumption of innocence until convicted by the proof of beyond reasonable doubt and every person has the right to take preparation for his/her defence.
In our country, the legal provision regarding bail are section -496of Cr. P.C. for granting bail in bailable offence, section-497 of Cr. P.C for granting bail in non-bailable offence and section-498 of Cr. P.C. for anticipatory bail(bail before arrest).Besides, these there some other kinds of bail such Interim bail or ad-interim bail under section 497 of Cr. P.C and bail after conviction under sections 426 & 498(bail pending appeal) and section 435 (bail pending revision. If the bail application is rejected by the trial court, then the accused can pray for bail before the court of sessions under section 497 of Cr. P.C. and if again the bail is rejected the accused can pray for bail before the High Court Division under section 498 of the Cr. P.C. The Session judges and High Court Division have the discretionary power for granting bail. The session judges and High Court Division have the right to grant bail in non-bailable offence. These courts exercise the supreme power of granting bail at any stage of the investigation, inquiry and trial. Once the prayer of bail before the session court and High court is disposed of, the accused may pray for bail in the magistrate court again with fresh grounds.
Other important provisions relating to bail are bail bond and surety (section 499), discharge from the custody (section 500), discharge of sureties (section 502) of Cr. P.C.
Bail on special law:
Where a special law makes provision for disposal of bail applications, the High Court has no jurisdiction to grant bail in contravention of those provisions. Therefore, the accepted principle is that special enactments transgressing into the field in occupation of the laws universally applied and accepted in a country deserve strict interpretation so that they are confined to that field alone in which departure was intended by the legislature due to any expediency.
If the special court or tribunal is yet to be constituted the high court can entertain the application and can dispose of those which it already took for consideration even that special court or trail is established in the meantime.
Bail in Prevention in Corruption Act and under Customs Act can also be granted under the provisions of Cr. P.C.
Where the special or the local law does not specially provide for bail, the provisions of Cr. P.C. would apply and ordinarily courts may grant bail, i.e. as there is nothing in foreign Exchange Regulation Act to regulate matters of bail, the powers of High Court under section 498, to admit a person alleged 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.
Malpractices relating to bail:
Bail in case of a bailable offence can be claim as of right but in case of non-bailable offence is cannot be claim as of right but have to depend on the discretion of the concerned court.
Rather contrary to the legal provisions and principle, in the recent years bail has been granted to the most notorious criminal and rejected to the women, such as between 1994 to 2001, 1047 cases have been instituted against 97 persons whom the Dhaka Metropolitan Police, in 2002, had listed as “the notorious terrorist involved in sensational cases in the Dhaka Metropolitan Areas”. Among these 1047 cases, bail related information could be obtained about 659 cases. Out of this 695 cases, the said “terrorist” in total obtained bail in 512 cases (from the High court division), which means that more that in more than 77 per cent cases, their bail prayer succeeded. Among these applicants most of them later on declared as “top most terror” by the government.
Though the prosecution always opposes the granting of bail lamely as a part of their common duty in court, but the great number of bails to those persons clearly indicates that their bail prayer is not examined judiciously or opposed properly. The public procedures or court sub-inspector can contribute to the granting of a bail in various ways. These can be by not objecting to the bail prayer, by not doing it properly or by absenting himself from the hearing and by repeatedly claiming that he had not received case docket or other necessary papers.
Sometimes court are reluctant to scrutinize the bail application through judicious eye as it has the scope of trial in absentia after following some procedural steps. The judges enjoy wide discretion in deciding whether or not or cannot do it properly may be due to inexperience, heavy workloads etc. The high court and session judges very rarely exercise their revisional jurisdiction to inquire and monitor the appropriateness of granting bails by the sub-ordinate judges to notorious criminals.
The Government, especially through the Home Ministry or through the Law Ministry or Establishment Ministry may influence bail granting of bail to politically loyal criminal and we also have heard a lot of criticism on the granting of bail on three accused in Bisshajit’s murder case a few days ago. Such allegation reminds us to rethink about the need for an independent, transparent and accountable judiciary for reducing and stopping the political and monetary influence in the bail system.
In accumulation, police may facilitate bail for a habitual criminal by overlooking to mention previous case record of that bail applicant in P.C.P.R column in the charge sheet or by discarding the non-bailable section from the charge sheet.
A bail forgery racket run by corrupt lawyers is helping arrested criminals get out of jail on bail. Last month detective arrested one of such corrupted advocate named Advocate Md. A Samad who after being arrested acknowledge that he used to that malpractice regarding bail in many cases.
For removing all the above faults in our bail system, we can think about on following issues, such as, determining the sureties, stringent laws for certain offences, witness protection laws, creating specialised investigation cell, strengthening public prosecution, monitoring judges and most importantly to ensure an independent and strong judiciary. It is a matter of hope that recently our High Court Division established new software to give in bail petition’s result indication.
Though our law commission in its report dated July 22, 2002 suggested that the existing law regarding bail should not be changed for the sake of protecting human rights as the more stringent bail law may cause grave human rights violation but they gave their opinion only regarding the legal provision not in support of usual malpractices of bail system in our country at present.
At last it seems to me that our laws regarding bail is like a RITZ hotel which is open to all but access is restricted to the rich only who can pay a good for it.
The writer is a former Assistant Judge of Bangladesh Judicial Service Commission. At present she is an Advocate of High Court Division, Supreme Court, Bangladesh and Lecturer, Department of Law, East West University, Dhaka