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Right To Bail – Access to Justice

Right to Bail


What is Bail?

Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of that person’s appearance for trial. Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused.


Bailable and Non-Bailable Offences

Under the Code of Criminal Procedure, offences have been classified as ‘bailable’ and ‘non-bailable’ offences. In the case of bailable offences, it is binding upon the investigating officer to grant bail. However, in case of a non-bailable offence the police do not grant bail. The decision is taken by a Judicial Magistrate/Judge only. In the case of a bailable offence, if the accused produces proper surety after his arrest, and fulfills other conditions, it is binding upon the Investigating officer to release him.

In the case of a non-bailable offence, the Investigating Officer must produce the accused before the Judicial Magistrate/Judge concerned within 24 hours of the arrest. Similarly, if the accused has been subjected to any misbehavior by police after arrest, he has an opportunity to complain against the same before the Judicial Magistrate/Judge.


Grant of Bail is rule / right and its refusal is only an exception

  1. Section 496 Cr. PC lays down that where a person accused of a bailable offence he shall be released on bail at any time while in custody, if he is prepared to give bail.
  2. In every bailable offence bail is granted to the accused as a matter of right not as matter of favor.
  3. In such cases there is no question of discretion in granting bail, as the words in sec 496 are imperative
  4. All courts can do is to demand reasonable security.


Extra ordinary and exceptional Cases where bail will be declined

Bail will be declined only in extra ordinary and exceptional cases wherein there is

  1. Likelihood of absconding of the accused
  2. apprehension of the accused tempering with the prosecution evidence
  3. Danger of offence being repeated if the accused released on bail
  4. The accused a previous convict


Recent amendment in section 497 Cr. PC

Bail on ground of Delay It grants statutory bail both to under trial prisoners and convicts whose appeals have not been dispose of within a prescribed time limit


Bail in Non Bailable Offences

Bail in non bailable offences cannot be sought before and after conviction as matter of right because in non bailable offence its matter of grace and concession but not matter of right.

It’s discretion of the court, the court must take into consideration;

  1. The gravity of the offence
  2. The heinousness of the charges
  3. The possibility of absconding
  4. The possibility of tempering with the evidence / witness

It would not be a matter of discretion with the court but a matter of right for the accused to get bail where once the condition U/S 497 (1) with its proviso have been fulfilled

Accused in such cases is also entitled to get bail in non bailable offences

  1. Where there are no reasonable grounds to believe that he has committed the non bailable offence
  2. When the case is such that it requires for further investigation into his guilt


Constitution of Pakistan and Bail


The constitutional provisions are contained in Articles 4 to 10 to show that the basic concept of bail is.

  1. Article 4 Right of individual to be dealt with in accordance with law
  2. Article 10 safeguard to arrest and detention
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