Whether bail is a right or privilege: A critical analysis.

Contents

1. Introduction……………………………………………………………………..…...01
2. Conceptual Issues……………………………………………………………….….01
3. Legal Framework……………………………………………………………………06
4. Bail is a Right and also a Privilege………………………………….……….12
5. Recommendations……………………………………………………………..….14
6. Some Important Case Reference………………………………………….…14
7. Conclusion………………………………………………………………………….….15
8. Bibliography…………………………………………………………………………..16
 1

1. Introduction
The basis conception of the word bail is release of a person from the custody of
police and delivery into the hands of sureties, who undertake to produce him in
court whenever required to do so. The Code of Criminal Procedure makes a
distinction between the bailable and non-bailable offences. The grant of bail to a
person accused of non-bailable offence is discretionary and the person release on
bail may again be arrested and remanded to custody by an order of the Court
granting the bail. The session and High Court Division may release any person on
bail and by a subsequent order cause him to be re-arrested and remanded to
custody. But a person accused of bailable offence is treated differently. He has a
right to be release on bail and only the High Court Division has the power to cause
him to be arrested and remanded to custody in bailable offences. There is no
question to discretionary power of court remains here. Accused of bailable offence
cannot be taken into custody unless they are unable or unwilling to offer bail or to
execute personal bonds.1

2. Conceptual Issues
Definition of Bail: Bail means a procedure to secure the accused from being
harassed in the custody of police or jail while long interval during investigation is
running. Security or bond pledged or given to a court or on behalf of one accused
of committing a crime, to obtain release from incarceration and to ensure the
person’s future appearance in court when required during the criminal proceeding.
There are four types of bails. They are described below;
Interim Bail: When the application for the grant of bail is filed before a Court like
Supreme Court or High Court Division, it requires document from lower courts or
investigation agency like charge sheet, certified copies of documents, case diary
etc. to take decision. But the process to get these documents requires time and the
accused or convict has to remain in the jail till the court gets hold of these
documents and can decide on the bail plea. But accused or convict can apply for
interim bail to avoid jail for such period till higher courts get required documents
from the lower court or investigating agency. Thus Interim Bail is temporary bail for
a period in which higher court can call documents required to make a final decision

1
. Islam md. Zahurul, The Code of Criminal Procedure, Third Edition, (Dhaka: Mullick Brothers, 1986) page 897
 2

on the bail application in which court can either grant permanent bail, extent
interim bail or even can reject bail application.
Anticipatory Bail: An individual can seek or request to get a bail in anticipation or
in expectation of being named or accused of having committed a non-bailable
offence. Anticipatory bail is meant to be a safe guard for a person who has false
accusation or charges made against him/her, most commonly due to professional
or personal enmity, as it ensure the release of the falsely accused person even
before he /she is arrested.
The Supreme Court of India explains the meaning of Anticipatory Bail and lays the
conditions for granting it. Here are the 9 guidelines as laid down by a constitution
bench, which the Courts are required to keep in mind while dealing with an
application for grant of anticipatory bail:
i) Though the power conferred under Section 497 of the Code can be described
as of an extraordinary character, but this does not justify the conclusion that
the power must be exercised in exceptional cases only because it is of an
extraordinary character. Nonetheless, the discretion under the Section has
to be exercised with due care and circumspection depending on
circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 497 of the Code is exercised,
the Court must be satisfied that the applicant invoking the provision has
reason to believe that he is likely to be arrested for a non-bailable offence
and that belief must be founded on reasonable grounds. Mere “fear” is not
belief, for which reason, it is not enough for the applicant to show that he
has some sort of vague apprehension that someone is going to make an
accusation against him, in pursuance of which he may be arrested. The
grounds, on which the belief of the applicant is based that he may be
arrested for a non-bailable offence, must be capable of being examined by
the Court objectively. Specific events and facts must be disclosed by the
applicant in order to enable the Court to judge of the reasonableness of his
belief, the existence of which is the sine qua non of the exercise of power
conferred by the Section.
iii) The observations made in Balchand Jain’s case (supra), regarding the nature
of the power conferred by Section 497 and regarding the question whether
 3

the conditions mentioned in Section 496 should be read into Section 497
cannot be treated as conclusive on the point. There is no warrant for reading
into Section 497, the conditions subject to which bail can be granted,
Anticipatory bail cannot be refused in respect of offences like criminal
breach of trust for the mere reason that the punishment provided for is
imprisonment for life. Circumstances may broadly justify the grant of bail in
such cases too, though of course, the Court is free to refuse anticipatory bail
in any case if there is material before it justifying such refusal.
iv) No blanket order of bail should be passed and the Court which grants
anticipatory bail must take care to specify the offence or the offences in
respect of which alone the order will be effective. While granting relief under
Section 497(1) of the Code, appropriate conditions can be imposed under
Section 497(2) so as to ensure an uninterrupted investigation. One such
condition can even be that in the event of the police making out a case of a
likely discovery under Section 27 of the Evidence Act, the person released
on bail shall be liable to be taken in police custody for facilitating the
recovery. Otherwise, such an order can become a charter of lawlessness and
a weapon to stifle prompt investigation into offences which could not
possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to
the exercise of power under Section 497. The imminence of a likely arrest
founded on a reasonable belief can be shown to exist even if an FIR is not
yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the
applicant has not been arrested
vii) The provisions of Section 497 cannot be invoked after the arrest of the
accused. After arrest, the accused must seek his remedy under Section 496
of the Code, if he wants to be released on bail in respect of the offence or
offences for which he is arrested.
viii) An interim bail order can be passed under Section 497 of the Code without
notice to the Public Prosecutor but notice should be issued to the Public
Prosecutor or to the Government advocate forthwith and the question of
bail should be re-examined in the light of respective contentions of the
parties. The ad-interim order too must conform to the requirements of the
 4

Section and suitable conditions should be imposed on the applicant even at

that stage.
ix) Though it is not necessary that the operation of an order passed under
Section 497(1) of the Code be limited in point of time but the Court may, if
there are reasons for doing so, limit the operation of the order to a short
period until after the filing of FIR in respect of the matter covered by the
order. The applicant may, in such cases, be directed to obtain an order of
bail under Section 496 or 498 of the Code within a reasonable short period
after the filing of the FIR.2
65 DLR 541 no chance of ainticipotory bail after submission of police report
Bail Bond & Surety: Bail bond and Surety are two conditions of bail. Bail bond is a
prescribed form kept in the court; the person who is released on bail has to execute
it by filing it up; the security money fixed by the court or the police officer
mentioned in the bond. Surety is the person who undertakes by signing the bail
bond that they would pay a certain amount mentioned in the bond in case the
person on bail fails to comply with the bail condition or absconds. The principle of
bail is basic to our system of justice and its practice as old as English law itself. When
the administration of criminal justice was in its infancy, arrest for serious crime
meant imprisonment without preliminary hearing and long periods of time could
occur between apprehension and the arrival of the King’s Justices to hold court. It
was therefore a matter of utmost importance to a person under arrest to be able
to obtain a provisional release from custody until his case was called. This was also
the desideratum of the medieval sheriff, the representative of the Crown in
criminal matters, who wore many hats including that of bailing officer. He preferred
the conditional release of persons under arrest to their imprisonment for several
reasons: it was less costly and troublesome; the jails were easy to breach and under
the existing law the Jailer was hanged if a prisoner escaped; the jails were
dangerous to health, and as there was no provision for adequate food, many
prisoners perished before trial was held Purpose Of Bail – Influenced by factors
such as these, the sheriff was inclined to discharge himself of responsibility for
persons awaiting trial by handing them into the personal custody of their friends
and relatives. Indeed, in its strict sense, the word bail is used to describe the person

2
Gurbaksh Singh Sibbia v. State of Punjab
 5

who agrees to act assuredly for the accused on his release from jail and becomes
responsible for his later appearance in court at the time designated. As surety, the
bail was liable under the law for any default in the accuser’s appearance.
Bailable Offence- Bailable offence means an offence shown as bailable in the
second schedule which is made bailable by any other law for the time being in
force. Basically, these offences are less severe in nature.
Non Bailable Offence-non bailable offence means any offence which is included in
the 5th column of Schedule II. These offences are severe in nature.
Purpose of Bail –After an arrest, a person is arraigned. At this point, the judge may
decide to set bail. Bail is a way for a defendant to be temporarily released from
custody pending the outcome of his or her case. It essentially serves as a form of
insurance for the court; by requiring that defendants secure bail bonds, a Maryland
court can receive some measure of assurance that they will appear for their next
court appearance. If a defendant fails to appear, the bail bond is withdrawn, and
the defendant is returned to custody.
Bail bonds are essentially an extension of the principle that all suspects are
innocent until proven guilty. Until a defendant is proven guilty, he or she might
avoid the punishment of jail while awaiting trial and continuing to carry out daily
responsibilities, such as going to work and taking care of his or her family. Provided
the defendant meets all requirements of the bail bond, the money is typically
returned at the end of the trial, regardless of whether the defendant is found guilty
or not guilty. However, if the defendant tries to flee the area and skip the trial, he
or she forfeits the money used to secure the bail bond.
Between the 13th and 15th centuries the sheriff’s power to admit to bail was
gradually vested, by a series of statutes, in the justices of the peace. In the case of
a person committed for felony, the justices of the peace had the authority to
require, if they thought fit, his remaining in jail until the trial took place, but, on the
other hand, a person committed for a misdemeanor case could, at common law,
insist on being released on bail if he found sufficient sureties. Writing in the mid-
1700’s, Blackstone described the arrest-bail procedure his day in the following
passage: When a delinquent is arrested. He ought regularly to be carried before a
justice of the peace. Otherwise he must be committed to prison or give bail that is,
put in his securities for his appearance to answer the charge against him. This
 6

commitment, therefore, being only for safe custody, wherever bail will answer the
same intention it ought to be taken. Bail is a delivery or bailment of a person to his
sureties, upon their giving (together with him) sufficient security for his
appearance. The notion of bail pending trial was not changed over the centuries.
Admission to bail always involves a risk that the accused will take flight. That is a
calculated risk which the law takes as the price of our system of justice the
possibility that the accused might flee or hide must, of course, be squared with the
traditional right to freedom pending trial. In order to reconcile these conflicting
interests, therefore, his release on bail is conditioned upon his giving reasonable
assurance in one form or another that he will appear at a certain time to stand trial.
In this regard, the Supreme Court has remarked: Like the ancient practice of
securing the oaths of responsible persons to stand as sureties for the accused, the
modern practice or requiring a bail bond or the deposit of a sum of money subject
to forfeiture serves as an additional assurance of the presence of the accused.
Modern statutes, which regulate bail procedure in detail today and vary from
jurisdiction to jurisdiction, provide that an accused may be set at liberty pending
trial in several ways. For example, he might be released without security by
agreeing in writing to appear at a specified time and place, i.e., on his own
recognizance; or he may execute a bond with a deposit of cash or securities in an
amount equal to or less than the face amount of the bond; or he may execute a bail
bond which requires one or more sureties. A bail bond, with sureties, is essentially
a contract between the government on the one side and the accused and his
sureties on the other. Under the contract the accused is released into the custody
of the sureties on their promise to pay the government a stated sum of money if
the accused fails to appear before the court in accordance with its terms.
Historically, the contract of bail, traced to a gradual increase of faith in the honor
of a hostage and the consequent relaxation of actual imprisonment, constitutes
one of the first appearances of the concept of contract in our law.

3. Legal Framework
Bail proceeding: Bail is an amount of money that a criminal defendant may be
ordered to pay before being released from custody pending trial. Its purpose is to
ensure a defendant’s return at subsequent trial proceedings. Bail is typically
determined during a defendant’s first appearance in court. A judge or other court
 7

officer sets the amount and conditions of bail. At a bail hearing, a judge has three
options:
 Release the defendant on his or her own recognizance or upon an unsecured
appearance bond
 Deny bail to the accused
 Set terms of bail, including the amount of bail and any special conditions for
release
First you will need to be “booked,” or processed into police custody. Then you may
have to post “bail,” a set amount of money you pay in exchange for your release. If
you're placed under arrest, normally you will be taken into police custody and
booked, or processed. During booking, officers will generally:

 Record your personal information (name, date of birth, physical

characteristics);
 Record information about the alleged crime;
 Record your fingerprints, and photographs;
 Check for any criminal background;
 Search your person and confiscates any personal property like keys, phone,
or a purse (to be returned upon your release); and
 Place you in a police station holding cell or local jail.

If you’ve been arrested for a minor offense, you might be given a written citation
and released, after signing the citation and promising to appear in court at a later
date. If not, you will go through the bail and bond procedure.
After booking, the next step is the arraignment, where you will be read the formal
charges and be given an opportunity to arrange for your release. The main concern
authorities have is that you show up for your future court dates. In certain cases,
you may be eligible to be released on your own recognizance. This means you
promise in writing to appear in court later on. A judge deciding whether to grant
own recognizance release normally considers:
 8

 The seriousness of the crime;

 Your criminal record, if any;
 Whether you pose a danger to the community; and
 Your ties to the community (whether you are a risk to flee).

If you are released on your own recognizance and fail to appear for your court date
as scheduled, a warrant may be issued for your arrest.
The bail proceedings can vary from court to court, but generally the court will have
a bail hearing to decide whether to grant bail (in extreme cases a court can deny
your release altogether) and, if so, what amount is appropriate. The court will have
a bail hearing, during which it will consider:

 Your physical and mental condition;

 Your financial resources;
 Your family ties;
 Any history relating to drug and alcohol abuse;
 Any criminal history;
 Any previous record concerning appearance at court proceedings; and
 The length of your residence in the community.
Along with the monetary bail determination, the court could also impose
restrictions on your release like limiting your travel, enforcing a curfew, revoking
gun ownership privileges, or requiring drug, alcohol, medical, or psychological
testing or treatment.
Once a court has set the amount of your bail, that amount, or a specified
percentage, must be posted, or paid to the court. Generally you can pay in cash or
an approved cash substitute, such as a money order or cashier's check. Once you’ve
posted bail, the court will issue a document or an order that shows you may be
released.
 9

If you can’t afford to post your own bail, you can contract a commercial bail bond
agent (or bail bondsman) to pay and ensure bond. A bond agent will charge a
nonrefundable fee, usually 10 to 20 percent of the total bail. In return, the bail bond
agent agrees to pay the remaining amount to the court if you fail to appear for your
court proceedings
Bail may come into play at three stages of a criminal proceeding:
 During the pretrial period
 Pending imposition or execution of sentence
 Pending appeal of a conviction or sentence
If bail is not required, a defendant may be released on his or her own recognizance.
Releasing someone on personal recognizance means that the person has promised
to show up for trial or other court proceedings, without posting a bond. Release on
personal recognizance may be appropriate when a person has ties to the
community and has lawful and steady employment. Family status is also taken into
account. Before release, a defendant must sign a document promising to appear.
Failure to abide by the terms of release on personal recognizance may result in
revocation of the privilege, or further criminal charges, including immediate arrest.
A defendant released on personal recognizance may be required to abide by certain
rules. For example, the defendant may be forbidden from traveling outside of the
court’s jurisdiction, or may be forbidden from contacting the victim or the victim’s
family.
A court may also impose an unsecured appearance bond on a criminal defendant.
A bond amount is set, but the defendant is not required to post any money. If the
defendant fails to appear at subsequent proceedings, or violates any terms of the
bond, he or she will be required to pay the full amount of the bond.
Relatable Sections of Code of Criminal Procedure 1898 Regarding Bail-
496. In what cases bail to be taken- When any person other than a person accused
of a non-bailable offence is arrested or detained without warrant by an officer in
charge of a police-station, or appears or is brought before a Court, and is prepared
at any time while in the custody of such officer or at any stage of the proceedings
before such Court to give bail, such person shall be released on bail: Provided that
such officer or Court, if he or it thinks fit, may, instead of taking bail from such
 10

person, discharge him on his executing a bond without sureties for his appearance
as hereinafter provided:
Provided, further, that nothing in this section shall be deemed to affect the
provisions of section 107, sub-section (4), or section 117, sub-section (3).
497. When bail may taken in case of non-bailable offence- (1) When any person
accused of any non-bailable offence is arrested or detained without warrant by an
officer in charge of a police-station, or appears or is brought before a Court, he may
be released on bail, but 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 transportation for life:
Provided that the Court may direct that any person under the age of sixteen years
or any woman or any sick or infirm person accused of such an offence be released
on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or
trial, as the case may be, that there are not reasonable grounds for believing that
the accused has committed a non-bailable offence, but that there are sufficient
grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be
released on bail, or, at the discretion of such officer or Court, on the execution by
him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under sub-section (1) or sub-
section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that there
are reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused, if he is in custody on the execution by him of a
bond without sureties for his appearance to hear judgment delivered.
(5) The High Court Division or Court of Session and, in the case of a person released
by itself, any other Court may cause any person who has been released under this
section to be arrested and may commit him to custody.
 11

3.3 Scope & Application of Law- The basic conception of the word bail is release of
a person from the custody of police and delivery into the hands of sureties who
undertake to produce him in Court whenever required to do. For the purpose of
bail. Offences are classified into two categories, bailable and non bailable. Section
496 provides for the granting of bail in bailable case and section 497 in non bailable
cases. Grant of bail in baliable offence is a right while in nonbailable offence the
grant of bail is not a right but concession grace. Grant of bail in offence punishable
with imprisonment for less than 10 years is a rule and refusal and exception in
bailable offences, there is no question of discretion in granting bail as the word of
the section are imperative. The only choice for the court is as between taking a
simple recognizance of the principal offender or demanding security with surety.
Ordinarily the world bail applies to the second kind of security to the practice and
procedure to the court.
Section 496 Cr P.C confers an absolute right on accused to be released on bail with
no provision imposing any liability for his rear rest whilst section 497 Cr P.C confers
no absolute right to bail. Which privilege is discretionary with provision imposing a
liability for his re arrest and committal to binds him to the principles and limitations
flowing from the grant of such a concession it being understood that but for the
concession, he could be in custody concession, it being understood that but for the
concession, he could be in custody. Even in case not falling from the grant of such
a concession it being understood that but for the concession, he could be in
custody. Even in case not falling within prohibitory clause, accused person cannot
claim bail as a matter of right grant of bail is not favor or concession but is a right
of the detente regulated by law. Ball shall not be granted if the offence is
punishable with death. or imprisonment for life if the court is of the view that there
appear reasonable grounds for believing that the person concerned accused or
suspected of the commission of the offence provided that he may in his discretion
grant bail to a woman or a minor under the age of sixteen or a sick or infirm person.
The power of release may be exercised by the Court when the accused appear or
is brought before if whether during investigation or otherwise.
The basic essential governing the matter of granting bail is that bail should never
be withheld as punishment. Grant of bail is a rule and same could not be withheld
by way of punishment.
 12

4. Bail is a Right and also a Privilege

It is a right in bailable offence: In bailable offences, there is no direction to the
court in granting bail, the only choice given on the court is either to take a simple
recognizance of the person released or to demand security. The court has not
discretion in a bailable offences, while granting bail under section 496, Cr.P.C. to
impose any condition expect the demand of security with sureties. In the case of
bailable offences, the accused had an indefeasible right to grant of irrespective of
his conduct however, reprehensible it may be. It’s a right not a favor.
Condition: The law enjoins certain conditions for the release on bail, and the
Criminal Procedure Code lays down various provisions regulating the conditions
that can be imposed while granting bail to a person. Section 499.
(1) Before any person is released on bail or released on his own bond, a bond for
such sum of money as the police 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 or court, as they 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 or Court of Sessions or other court to
answer the charge.
The word “conditioned” in section 499, Cr.P.C. is not so comprehensive as to
include all continued that the Magistrate may like to impose e.g., that accused is to
live in a certain place.[PLD 1955 Dhaka 84].
So that bail is a right for the bailable offence.

It is a privilege in non-bailable offence: In the case of non –bailable offence,

granting of bail is discretionary. In certain cases, bail cannot be granted, while in
certain other cases, bail may be granted at the discretion of the court. When a
discretion is vested in the court the discretion has to be exercised subject to such
reasonable conditions as the court deems to fit. In non –bail able cases, grant of
 13

bail is only a concession allowed person. The court should see that the concession
is not misused and so any reasonable condition can be imposed when granting bail
in such cases.
Where the accused where charged under Section 452, 109 and 120-B .Cr. P.C., for
carrying on demonstrations with a view to bring pressure on the Government to
give up its to impose grazing fees and the court in granting bail, imposed a
condition, that the accused should execute bond not to abet to take part in such
demonstration, it was held that conditions were not unreasonable. The only
condition contemplated by Section 499, Cr.p.c. is the attendance of the accused in
court on a fixed day and continue to attend court until otherwise directed. Any
other condition such as undertaking not to deliver speeches until the disposal of
the case is invalid and will not result in forfeiture of the bond
b. Condition of bail:
The conditions for grant of bail to a person of bailable offence should not be harsh,
oppressive and virtually resulting in denial of bail. But any condition, which has no
reference to the fairness or propriety of investigation or trail, cannot be imposed
in granting bail. The Bombay High Court has held that it was improper on the part
of the court to impose the condition that he would pay the complainant the amount
secured by him as a result of cheating and again to cancel the bail on his inability
to return the amount in full. Court may direct release on bail without concentrating
on the crime a person aged 16 years, any women or any sick infirm person.
c. Recording of reasons: A police officer or a Court relating a person on bail under
section 497 has to record his or its reasons for releasing any person on bail and has
to record his or its special reasons for granting bail. Even in case of refusal, reasons,
are required to be recorded, otherwise the High Court will interfere.
 14

5. Recommendations
 The High Court Division and the Session Judge should exercise the power
independently.
 Strict monitoring mechanism should be created by the government for the
accused who will be released on bail so that they cannot influence the
witness.
 The Court should be independent in taking decision in the matter of granting
bail.
 The amount of bail bond should be sufficient.
 Minor and women should not be given scope to enter in the arena of crime.
The government should provide strong monitoring system for them.

6. Some Important Case Reference

41 DLR 291 Abdus Samad vs.The State-to be release on bail a person must be in
custody or in some sort of confinement. Therefore a person to be release on bail
need to be in some sort of confinement or custody or otherwise it is not understood
from what confinement or custody he would be release.
25 DLR 45(SC)-Chowdhury Muhamad Khan vs. Sanaullah-First Judge of High Court
refuse bail. Later on a fresh application for bail was moved before another judge of
High Court, who grants bail. Extreme impropriety that results from such a course.
31 BLD 176-Babar vs. The State-Once bail is granted to an accused it becomes his
valuable right to be on bail and that the bail shall not be cancelled without any
allegation of misuse of privilege of bail as well as apprehension of absconding.
6MLR 51 (AD)-Bail cannot be Granted to an accused involved with direct complexity
in offence punishable with Death or imprisonment for life. if it is done by a court
then it should be set aside by the apex court.
22 DLR 145 Md. Salim vs. State- Magistrate granting bail should verify solvency of
surety himself not act upon the advice of others.
 15

7. Conclusion
From the above-mentioned discussion it is clear that matter of bail plays a
significant role in a criminal case. Bail is the right of the party. Anyone wants a bail
who is arrested living in jail means they may want a bail at any time. To set free, or
deliver from arrest, or out of custody, on the undertaking of some other person or
persons that he or they will be responsible for the appearance, at a certain day and
place, of the person bailed. When bail has been arranged, the accused person is
allowed to go free until the trail. Bail is an alternative preventive measure to the
preventive measure applied as detention against the defendant and it is applied
only in case the court has made a decision about detaining the defendant. By saying
bail we understand a sum of money, securities, other valuables or, if the court
permits, also real estate, which is paid to the court’s deposit account to ensure that
the accused is at the disposal of the body carrying out criminal proceedings.
An arrested person can be kept under custody no more than 72 hours. During this
time a charge shall be brought against him and if necessary the question of
choosing detention as a preventive measure shall be determined in court. If a
preventive measure is chosen regarding not keeping the person in detention or a
preventive measure is not chosen at all, the latter is released. And if detention is
chosen as a preventive measure, the defendant has the right to file a motion about
being released on bail.
The court makes a decision about releasing the defendant on bail. When discussing
the motion made by the pre-investigation body, the investigator or the prosecutor
about detention, the court discusses also the possibility of releasing the defendant
on bail. If the terms of release on bail are violated, the prosecutor shall apply to
court with a motion to take the bail as state income. The prosecutor can also file a
motion on substituting bail with detention.
Bail is very much important in a criminal case. So it must be delivered by the judge
with due care and deliberation.
 16

8. Bibliography
Books:
1. Halim Abdul The text Book on Criminal Procedure, Fifth Edition, (Dhaka: Shams
Publications, 2006)
2. Mitra, B. B. The Code of Criminal Procedure, Third Edition, (Calcutta: Eastern Law
House, 2002)
3. Sikder M. Answer Uddin, The Code of Criminal Procedure, Second Edition,
(Dhaka: A. Akhter Traders, 2003)
4. Islam md. Zahurul, The Code of Criminal Procedure, Third Edition, (Dhaka: Mullick
Brothers, 1986)
5. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 17th Edition, (Calcutta:
Wadhwa & Company (Pvt.) Ltd, Reprint 2006)
6. Huq Zahirul, Law and Practice of Criminal Procedure, Fifth Edition, (Dhaka:
Subarna Publication, 1987)
Website:
1. www.definitionofbail.com
2. www.groundofbail.com
3. www.typeofbailbd.com