Tuesday, June 18, 2024

How to get bail in a criminal case?

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The legal and constitutional right of an accused person to get bail in a criminal case. In getting bail in a criminal case, it should be remembered that the accused is not guilty of the case.

Accused and criminal are different. All rules related to criminal cases are laid down in the Code of Criminal Procedure.

Various sections of the Code of Criminal Procedure deal with when an accused may be granted bail in a criminal case.

In today’s discussion, I will write about the provisions under which an accused can be granted bail in a case.

What is bail?

Bail is the conditional temporary release of an accused in a case. The fifth column of the 2nd Schedule to the Code of Criminal Procedure deals with offenses under various sections of the Penal Code regarding the grant or non-grant of bail in a criminal case.

Courts generally decide on bail according to which crime is bailable and which crime is non-bailable. Or if you want to understand easily, you can have the idea that crimes which are serious in the common eye are non-bailable and crimes that are minor or not very harmful or will not be repeated are bailable.

The word Bail is derived from the French Baillier. Which means supply in Bengali. According to the conventional rules, temporary release on the condition that the court regularly attends the case on the bond of a surety can be called bail.

Provisions relating to bail in a criminal cases

Article 496, 497, 498, and 514 of the Code of Criminal Procedure deals with bail. A person accused of any bailable offense may be granted bail under section 496.

In short, a person accused of a bailable offense is entitled to bail. But one more thing has been said in this clause. The court will grant bail to the accused only if he agrees to give a surety or surety. Moreover, it is the legal right of a person accused of a bailable offense to get bail.

Bail in non-bailable offenses

Section 497 deals with when bail can be granted in criminal cases for non-bailable offenses. It has been discussed in the previous para what are bailable and non-bailable offenses and where are the details given.

While discussing this section, one thing that should be mentioned is that it is the discretionary power of the court to grant bail or not. Although it is the legal right of the accused to get bail in bailable offenses.

It is at the discretion of the court whether to grant bail to a person accused of a non-bailable offense in a criminal case. But the law also clarifies when a person accused of a non-bailable offense can be granted bail.

In particular, in 4 cases, the court can also grant bail to a person accused of non-bailable offenses. If an accused person is below 16 (sixteen) years of age, is female, is sick or afflicted, or is disabled, the court can grant bail.

However, it is not a legal right of the accused to get bail for non-bailable offenses. One more thing is said in this clause.

The court shall not grant bail to the accused if there is reason to believe that the accused has committed an offense punishable with death or imprisonment for life. Such direction to the court is mandatory.

Power of High Court and Court of Session to grant bail and interim bail

The highest court of the country is the High Court and the highest criminal court at the district level is the Sessions Court.

The separate powers of these two courts to grant bail are discussed in Section 498 of the Code of Criminal Procedure.

You can also read our article about the structure and powers of the criminal courts of the country.

High Courts and Sessions Courts are vested in law with unlimited powers to grant bail in criminal cases.

These two courts can grant bail to a person accused of any crime at any time and in any case.

Moreover, we know about the anticipatory or interim bail which is also practiced by the court according to this clause.

Anticipatory bail means that a person can apply for anticipatory or interim bail if he believes that he may be falsely accused of an offense and arrested.

High Courts and Sessions Courts may at any time grant anticipatory or interim bail to a person and may also direct reduction of bail if necessary.

However, under Section 498, the discretionary power of the court to grant bail is discretionary.

Provision of bail if an investigation is not completed within a specified time

The reader has so far discussed the general provisions of bail which have been discussed in the above para.

By reading above, you must have understood when bail is usually granted. Apart from these, there are provisions for granting bail in criminal cases under special provisions.

Under section 167(5) of the Code of Criminal Procedure, an accused can get bail in a criminal case.

The provision of this section is that when the investigation of any crime is not completed within 120 (one hundred and twenty days) then the Magistrate Court or the Sessions Court may grant bail subject to certain provisions.

In case of offenses punishable with death, life imprisonment, and other offenses punishable with imprisonment exceeding 10 years, if the investigation of the offense is not completed within 120 days, the Magistrate may grant bail subject to his satisfaction.

Another provision is in the case of the Sessions Court. If the investigation of any offense punishable with imprisonment is not completed within 120 days, the Sessions Court may grant bail subject to satisfaction.

Provision for bail if the trial is not completed within a specified time

The law is clear about what work has to be done within what time frame. Just as bail can be granted if the investigation is not completed within 120 days, there are clear provisions in the law regarding granting bail if the trial of the case is not completed within a specified time.

If you want to know the trial procedure of criminal courts, you can read the article.

According to section 339(c) there is a provision to complete the trial within 180 days after the Magistrate Court gets to try the case and within 360 days after the Court of Session, Additional Session Judge Court, and Joint Session Judge Court get to try the case.

This section further states that if the trial is not completed within the specified period, the court may grant bail to the accused subject to the satisfaction of the accused even in non-bailable offenses.

Provision of bail pending appeal

When the trial court passes a sentence, if the accused is aggrieved by the sentence, he has the right to appeal. Section 426 of the Code of Criminal Procedure mentions the provision of bail in terms of appeal.

It is stated in this section, subject to the appeal of the convicted person, the appellate court can order suspension of sentence by recording reasons or release the accused on bail on his own bond.

Section 426(2A) states that if a judicial court sentences a person to imprisonment for a term exceeding one year and there is provision for an appeal against the sentence, and if the judicial court is of the opinion that the person may or will file an appeal, the court may release the convicted accused on bail.

According to Section 2B of the same section, the High Court can also release the convicted person on bail.

If the High Court gives a sentence in appeal, there is a special order for appeal to the Appellate Division of the Supreme Court against that sentence and if the High Court Division thinks fit, it can order suspension of the appealed sentence and release the accused on bail if he is detained.

Provision of bail by the call for records

High Courts or Sessions Courts may call for documents to verify the validity, correctness or reasonableness of the decision, sentence, or order of any criminal court subordinate to them.

According to the provisions of section 435 of the Criminal Procedure Code, the two courts can suspend any sentence after examining the documents and release the accused on bail or on his own bond if he is detained.

Generally, the High Court is subject to an application for verification of any mistake or reasonableness of the order of the lower court.

High Court decisions on bail in a criminal case

The High Court in a case said, ‘The basic concept of the expression bail is to deliver any person from police custody to the promisor and the promisor is such a person who promises to produce a suitable person whenever the court deems it necessary. [5 DLR (FC) 154]

In another case it has been said about bail, if it appears to the court that the criminal has committed an offense punishable with death or life imprisonment, then the said accused cannot be released on bail.

A duly authorized officer of Bangladesh Bank filed the affidavit and after investigation by the investigation team of the Bangladesh Bank, the affidavit stated the alleged facts against the petitioner criminal in the affidavit. In such a situation, if it appears to this court that the petitioner criminal Mostafizur Rahman has committed various crimes like criminal breach of trust by taking possession of the above-mentioned money in various ways in the name of his companions and the said crime is punishable with imprisonment for life. The learned Sessions Judge has rightly rejected his bail application and we see no reason to grant him bail. [41 DLR 227]

Our advice

Bail or not in a criminal case is a question of law. Today’s article discusses the various sections related to bail under the Criminal Procedure Code. However, we also want to inform you that this article about bail is definitely not complete.

Bail in a criminal case depends on the case. Today’s article on bail is written to give a basic idea only. Whether to grant bail, in any case, is entirely at the discretion of the court. Also, consult a knowledgeable lawyer to know whether there will be bail in any case. thank you.

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Advocate Shipta Barua
Advocate Shipta Baruahttps://legalhome.org
Currently working as a Criminal Lawyer in Cox's Bazar Sessions Court, as well as legal consultant at Legal Home to provide legal assistance to common people. Moreover, involved in various social activities through the organization Gyananneshon. He completed LL.B (Hons) and LL.M in Law and Justice. Special interest in maritime law, environmental law and criminology.

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