• Brain Booster Articles


Author: Devansh Bansal, Pursuing LL.M. from Christ University

ABSTRACT The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease-ridden jails while waiting for the delayed trials to be conducted by traveling justice. [1]Prisoners were bailed or delivered to reputable third parties of their choosing who accepted responsibility for assuring their appearance at trial. Suppose the accused did not appear; his bail would stand the test in his place. Eventually, it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service and usually demands some collateral. In the event of non-appearance, the bond is forfeited after a grace period of several days during which the bondsman may produce the accused in Court.[2] Usually, bail is a kind of asset or property given by the court as security for consideration of release from being arrested or to avoid being jailed, as an identification that the accused or suspect will be present on the day of hearing or trial and where if he fails to appear before the court on the given day then his property may be sized or forfeit the bail. The amount deposited shall be returned at the trial's end if the accused is present at every hearing, regardless of whether the accused has been found guilty oracquitted.

The administration of bail has seen changed enormously from this original bail setting. These changes in America can be attributed mainly to the intersection during the 20th century of two historical phenomena.

INTRODUCTION The slow evolution from the personal surety system using unsecured financial conditions to a commercial one primarily using secured economicneeds. The second was the often misunderstood creation and nurturing of bail or no bail or release or no release dichotomy, which continues today.

The history of bail tells us that the pre-trial releases and detention system worked effectively over the centuries. Moreover, the bail side of the dichotomy functioned most effectively through an uncompensated and un-indemnified personal surety system based on unsecured financial conditions. What we in America today know as the traditional money bail system – a system relying primarily on secured economic conditions administered through commercial sureties is, historically speaking, a relatively new approach that was encouraged to solve America‟s dilemma of the unnecessary detention of bailable defendants in the 1800s. Unfortunately, however, the traditional money bail system has only exacerbated the two primary cases of abuse that have typically led to historicalcorrection: 1. The unnecessary detention of bailable defendants, whom we now often categorize as lower risk. 2. The release of those we feel should be unbailable defendants and whom we now often categorize as higherrisk.

The history of bail also instructs us on the proper purpose of bail. Specifically, while avoiding blood feuds may have been the primary purpose for the original bail setting, once more public processes and jails were fully introduced into the administration of criminal justice, the purpose of bail changed to one of providing a mechanism of conditional release. Concomitantly, the purpose of‚ no bail was and is detention. Historically speaking, the only goal for limiting or conditioning pre-trial release was to assure that the accused come to court or otherwise face justice. That changed in the 1970s and 1980s, as jurisdictions began to recognize public safety as a second constitutionally valid.

The Purpose for limiting pre-trial freedom. It is a matter of court to grant bail or not in some countries, bail is commonly allowed, and in some countries, it is tough to get bail. If the courts find that the accused will not appear in court if he is permitted bail and there is a chance that he will abscond in such cases, the court may not let bail.


Bail is derived from the old French verb baillie, which means giving or delivering. The word is also related to the Latin word bajulare, meaning to bear a burden.[3] It allows individuals to live their lives until they are brought to trial, giving them a taste of freedom while preparing their defense. Bail itself has a fascinating history – and how it has been applied often says quite a bit about the relationship between the legal system and those who have been accused of a crime. Bail origins are ancient, but the concept has been familiar throughouthistory.[4]

While bail can be traced to ancient Rome, our traditional American understanding derives primarily from English roots. When the Germanic tribes, the Angles, the Saxons, and the Jutes migrated to Britain after the fall of Rome in the fifth century, they brought with them the blood feud asthe primary means of settling disputes. Whenever one person wronged another, the families of the accused and the victim would often pursue a private war until all persons in one or both of the families were killed. However, this form of „justice‟ was brutal and costly, so these tribes quickly settled on a different legal system based on compensation, first with goods and later with money to fix wrongs. This compensation, in turn, was based on the concept of the„ wergild, ‟meaning„ manprice‟ or „manpayment ‟and some times more generally called a „bot,‟ which was a value placed on every person and appears on every person's property", according to social rank.


Historical genesis the ethos and injunctions of ancient Hindu jurisprudence required,among other things, suitable disposal of disputes by the functionaries responsible for the administration of justice. No laxity could be afforded in thematter as it entailed penalties on the functionaries.[5] Thus, a judicial interposition ensured that an accused person was not unnecessarily detained or incarcerated. This indeed devised practical modes both for securing the presence of a wrongdoer and spare him of undue strains on his freedom.[6]

During Moghul Rule

The Indian legal system is recorded to have an institution of bail to release an arrested person on his furnishing a surety. This system finds reference in the seventeenth-century travelogue of Italian traveler Manucci. [7]Manucci himself was restored to his freedom from imprisonment on a false theft charge. The then ruler of Punjab granted him bail, but Kotwal released him on bail only after Manucci furnished a surety. Under Moghul law, an interim release could be actuated by considering that if the dispensation of justice got delayed in one's case, compensatory claims could be made on the judge himself for losses sustained by the aggrievedparty.

The advent of British rule in India saw a gradual adaptation of the principles and practices known to Britishers and was prevalent in the common law. The East India Company‟s total control over Nizamat Adalats and other Fouzdary Courts in the mofussil saw gradual inroads of English criminal law and procedure in the then Indian legal system.


The word bail has not been defined in the Code of Criminal Procedure. However, the Codes of 1898 and 1973 have defined the expression „bailable offense‟ and „non-bailable offense, ‟respectively in Section 4(1)(b)[8]and Section 2(a).[9] In the latter section, the expression „bailable offense‟ has been defined to mean an offense which is shown as bailable in Schedule I, or which is made bailable by any other law for the time being in force, and the expression„ non-bailable‟ has been defined to mean any other offense.


Bail is simply the process of releasing a person who may be on his bond or some security; bail is the post-arrest process and before trial. In the criminal procedure code, bail is not defined anywhere. Still, classification of offenses into bailable and non-bailableviolations made expressly or may be made after examining the gravity of crimes. Grave crimes to be made non-bailable, where bail not to be granted as a right but to be given on looking certain factors by exercising the judicial discretion by courts on some just and human grounds.7


Bailable Offence

A bailableoffense means an offensethat has been categorized as bailable. In case of such violation, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of The Criminal Procedure Code, 1973. In case of bailable offenses, the Police areauthorized to give bail to the accused at the time of arrest or detention. As defined under Section 2(a) of the code – a bailable offence means an offensethat is shown as bailable in theFirst Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence‖ means any other offence.[10]

Non-bailable Offence

Non-bailable means an offense in which bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for a grant of bail under Sections 437 and 439 of the code.[11] Grant of bail in a non-bailable offense is subject to the judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guidingprinciple.


It is not the object of the criminal law to confine a person accused of a crime before his conviction. Bail, in criminal cases, is, therefore, intended to combine the administration of justice with the liberty and convenience of the person alleged accused.

Administration of justice on the spot or immediately after the commission of a crime by the fundamental principles ofnatural justice embedded in a fair and just legal system is not feasible. This appears to be one of the reasons for the evolution of the bail jurisdiction in any legal system. The release on bail is crucial to the accused as pre-trial detention consequences are against the presumption of innocence. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond a reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively to defense preparation. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.


From the previously mentioned dialog plainly Bail matter assumes a critical part in a criminal case, since it is a definitive objective of the denounced. Bail is the privilege of the gathering. Anybody needs a bail who is captured living in prison implies they need a bail whenever. To set free, or convey from capture, or out of care, on the endeavor of some other individual or people that he or they will be in charge of the appearance, at a specific day and place, of the individual bailed. At the point when bail has been orchestrated, the blamed individual is permitted to go free until the trail. Be that as it may, in the event of non-bail capable offense, there is no particular arrangement in Cr.P.C of Bangladesh. The anguish of the general individuals will be diminished and the judges won't be one-sided by the power of the political party or controlling gathering to satisfy their need on the off chance that it is conceivable to embrace fitting arrangements in Bangladesh. So we ought to present particular arrangement of bail if there should arise an occurrence of non-bail capable offense. For instance, as indicated by segment 339(c) of the CrPC, a Magistrate can't go past the time scope of 180 days to close the trial and a Session Judge gets 360 days to finish up it. In the event that the trial isn't finished inside this time traverse, the blamed despite the fact that he is charged for non-bail capable offense, might be discharged on bail.

[1] Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, p. 3. [2] Moti Ram v. State of M.P. AIR 1978 SC 1594 (1978) 4 SCC 47. [3] P.V. Ramakrishna, Law of Bails, Universal Law Publishing. Ninth Edition, 2016, p. 39. [4] https://www.allprobailbond.com/blog/bail-bond-process/history-of-bail-2/ [5] KautilyaArthshastra, IV, Ch. 9. [6] Asim Pandya Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis. [7] NiccoloManucci (19 April 1638-1717) was an Italian Writer and Traveller. He worked inthe Mughal Court. He worked in Dara Shikoh, Shah Alam, Raja Jai Singh. [8] Section 4, Code of Criminal Procedure,1989. [9] Section 2, Code of Criminal Procedure,1973. [10] Section 2(a) of The Code of Criminal Procedure Code, 1973. [11] The Code of Criminal Procedure, 1973.