Bail, stay on bail, and the judicial discretion

The principal use of bail in modern legal systems is to secure the freedom, pending trial, of one arrested and charged with a criminal offence. However, it may also be used in some cases to secure release pending an appeal of a conviction. Subject to jurisdictional variations, its use in civil cases has diminished along with the decline of imprisonment for debt.

In legal systems that have a bail procedure, its operation, by and large, revolves around discretionary powers of the authority. For instance, in the United States, granting bail involves a certain degree of discretionary power, primarily exercised by judges. Discretionary authority allows judges to consider various factors when determining whether to grant bail to an individual or not. Here's how discretionary power is typically used in the bail process:

Judges evaluate the gravity of the alleged offence. The use of discretion is necessary to safeguard the public from potential damage. If a judge determines that a defendant's release could threaten society, bail may be denied or granted at a high amount. Also, judges consider the defendant's ties to the community— as those with strong ties are typically less likely to abscond.

Personal characteristics, such as the defendant's character, reputation, and behaviour during previous court appearances, can also impact the judges' decisions on bail. Although not explicitly used to deny bond, the judges should consider the defendant's financial resources when deliberating on bail.

In our neighbouring country Sri Lanka, a distinct legislation, defining the ambit and features of Bail regarding both civil and criminal matters, has been enacted, namely the Bail Act, 1997. Section 5 of the Act allows the Court to release a person suspected or accused of committing a non-bailable offence on Bail. Section 13 states that a High Court judge must grant Bail to anyone, even if they are suspected or accused of committing a death or life-sentence offence. Furthermore, Section 16 states that no person shall be jailed for more than twelve months from the date of arrest unless convicted and sentenced. This law ensures practice of utmost judicious discretion and reduces the burden on the accused.

Across jurisdictions, the purposes of bail pending trial in criminal cases are to avoid inflicting punishment upon an innocent person (who may be acquitted at trial) and to encourage the unhampered preparation of his defence. The amount of bail is generally set taking into account the gravity of the offence charged and the likelihood of flight. However, some consider other factors, such as the strength of the evidence, the character of the accused, and the ability of the accused to secure bail. Failure to consider financial ability generated much controversy in the mid-20th century, for bail requirements may discriminate against poor people and disproportionately impact certain minority groups who are thus deprived of an equal opportunity to secure their freedom pending trial.

When a person is granted bail, they essentially get released from physical custody (such as being held in jail or detention) and placed under the Court's or relevant authorities' legal supervision for the duration of their trial or legal proceedings. When out on bail, an accused individual is still subject to specific terms that the Court sets. These requirements may include attending all court sessions, avoiding specific activities, or guaranteeing that they are present throughout the legal processes.

It must be noted that bail ought to be the rule, and refusal of bail ought to be the exception. It amounts to violation of fundamental right when bail is refused in bailable offences. Hence, the order of bail should be kept from being suspended or delayed by either the subordinate or higher judiciary. In Bangladesh, regrettably, a concerning trend has emerged whereby the Appellate Division has been issuing stays on such orders despite the High Court Division granting bail. This practice raises concerns regarding the potential infringement of the accused individuals' constitutional rights.

Upon examining Indian case laws, it becomes evident that while the legal framework has similarities, India has adopted a more progressive stance on this issue. For instance, in Rasiklal v Kishore (2009) 4 SCC 446, the Indian Supreme Court held that 'the right to claim Bail granted by Section 436 (Indian CrPC Corresponding section in CrPC in Bangladesh is S. 496 & 497)) of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences, there is no question of discretion in granting Bail, as the words of Section 436 are imperative. The only choice available to the officer or the Court is as between taking a simple recognisance of the accused and demanding security with surety.'

It is crucial to remember that the determination of whether or not to stay a bail order can be challenging and depends on the particulars of each case. Having said that, the Court's primary goal is to strike a balance between the rights of the accused and the proper administration of justice. Hence, the granting of bail is a matter of utmost significance, and a stay order (as is now the case with the Appellate Division) on the same demolishes the true objective of bail.

The writer is Senior District and Sessions Judge (Rtd).