BAIL BOND: COMPREHENSIVE OVERVIEW AND ITS CURRENT SCENARIO
ABSTRACT
This blog examines the subject of bail bond and emphasizes the significance of ensuring justice and fairness in the pretrial release procedure and on which grounds it should be ensured. It also addresses the exceptions as where it is not granted etc. The blog discusses the need for improvement in the procedure for pretrial release procedure. The values of justice and fairness can be upheld by society if it supports a fair and efficient bail system.
KEYWORDS: Bail bond, justice, pretrial release, fairness, bail bondsmen, fee, temporary release, jail.
INTRODUCTION
Justice V.R. Krishna Iyer: “Judges should be more inclined towards bail and not jail.”
WHAT IS BAIL?
Bail is a long-established component of the criminal justice system that aims to strike a balance between the rights of the accused and the necessity to protect public safety. Criminal suspects might secure their temporary release from custody pending their trial using bail bonds. This blog explores the essentials of a bail bond and the exceptions where it is not allowed to be given. The concept of bail has come under the extent of human rights since the UN Declaration of Human Rights in 1948. The provisions relating to bail and bonds have been given under sections 436 to 450 of the criminal procedure code.
BAIL BOND: A bail bond is an agreement by a criminal defendant to appear for trial or pay a sum of money set by the court. The bail bond is co-signed by a bail bondsman, who charges the defendant a fee in return for guaranteeing the payment. It is a type of surety bond.
Essentials of Bail Bond
There shall be a criminal.
The criminal can either apply for pre-arrest bail or after the arrest.
There should be reasonable apprehension of arrest.
There shall be an agent or BAIL BONDSMEN.
The sum of money shall be set by the court based on the gravity of the offence and it should be proportionate as per Section 440 of CrPC.
It is therefore considered necessary for the demand of bail bond and in proportionate and this power is given to sessions and high courts to decide the amount.
There is sufficient reason to conduct further enquiry into the matter.
As per Section 442, the accused person shall be released immediately when the execution of the bond is completed.
HOW A BAIL BOND WORKS
A person who is charged with a crime is typically given a bail hearing before a judge. The amount of the bail is at the judge’s discretion.
A judge may deny bail altogether if the defendant is charged with a violent crime or appears likely to be a flight risk.
Bail bondsmen, also called bail bond agents, provide written agreements to criminal courts to pay the bail in full if the defendants whose appearances they guarantee fail to appear on their trial dates.
Bail bondsmen generally accept most property of value, including cars, jewellery, and houses as well as stocks and bonds. Once the bail or bail bond is delivered, the defendant is released until trial.
TYPES OF BONDS
There are several types of bonds that a defendant may be required to post.
Cash bond: the defendant pays the full bail amount directly to the bondsman.
Property bond: the defendant uses property, such as a house or car, as collateral for the bond.
Immigration bond: used for non-citizens who are detained by immigration authorities.
Federal bond: used for federal crimes.
DIFFERENCES BETWEEN BAIL AND BOND
The main difference between bail and bond is who pays the money. With bail, the defendant or their family pays the full bail amount to the court, and the money is refunded at the end of the case as long as the defendant appears in court. With a bond, the defendant pays a non-refundable fee to a bondsman, who then posts a bond with the court.
Another difference is the role of the bondsman. With bail, there is no middleman involved. With a bond, the defendant works with a bondsman, who assumes the risk if the defendant fails to appear in court.
'Bail is the rule and Jail is an Exception', this canon of the criminal jurisprudence was laid down by the Supreme Court of India in its landmark judgement of State of Rajasthan V.Balchand alias Baliay[2], in the year 1978.
Justice Vaidyanathapuram Rama Krishna Iyer, who has many avant-grade verdicts to his name, precisely held in the foregoing case that: “The basic rule may perhaps be tersely put as bail, not jail.”[3]
To base it, honourable Justice emphasized the rights guaranteed to an accused under the Constitution of India. Among these rights, the most distinguished one is the right given under Article-21 of the Constitution. Detention of a person affects his right to life and liberty and the main objective of detention is to ensure easy availability of an accused for trial without any inconvenience. Thus, if it is ensured that the accused will be available when required for the trial stage, detaining the person is not compulsory. Therefore, it was held that the courts, while interpreting the provisions of Code of Criminal Procedure (CrPC) concerned with the arrest of a person, must avoid detention unless it seems indispensable and should grant bail to the accused.
WHY JAIL IS AN EXCEPTION?
Human Rights Activism has evolved more over the years and at present, putting someone in jail requires an understanding of an equilibrium between the liberty of the person who is being put into jail and the interest of society. Therefore, to maintain such equilibrium between the two it is very much important to consider that until and unless there are strong grounds such as the probability of an accused fleeing from the justice or chances of him tampering with the evidence or threatening the witness or victim to the case, detention of an accused will lead to the infringement of his very fundamental right given to him under Article – 21 of the constitution i.e., right to life and personal liberty. Further, the application of the Reformative theory of punishment is equally important to maintain the balance between two other theories of punishment namely- Deterrent theory and Punitive theory. The main objective of reformative theory is to reform an accused and keep him away from habituated criminals in jail who are considered varsities of crimes. The theory is based on the notion that punishment should be more curative rather than a deterrent one. A crime is considered as a disease under this type of theory which cannot be cured by killing; rather, such disease can be cured with the help of medicine named, the ‘process of reformation’ [5].
Moreover, in one of the landmark judgments of Supreme Court Arnesh Kumar V. State of Bihar [5], the apex court imposed several checks and balances on the powers of police before arrest and after arrest. The Hon’ble Supreme Court directed all the state governments across the country to instruct police officers not to arrest an accused without scrutinizing all the facts and circumstances of the case and shall conduct a preliminary inquiry before arrest.
CONCLUSION
CURRENT SCENARIO: JAIL IS RULE, BAIL IS EXCEPTION
In recent times the erratic exercise of discretion of granting bail has become a serious blockade in achieving the ends of justice. Nowadays, it has become a cake walk for high profile and rich individuals to get bail if they have charges of any non-bailable offence against them. They are granted bail without considering the seriousness of the offence. On the other hand, the same is not the case with poor and underprivileged sections of the society. In most of the cases, a middle-class or poor person who is accused of an offence does not get bail even after fighting tooth and nail for it. Does justice also differentiates between the rich and the poor? Moreover, the illegal detention advocates Sudha Bhardwaj, Dr. Kafeel Khan and many more are examples of such arbitrariness. Thus, jail is just an exception.
ADVANTAGES AND DISADVANTAGES OF BONDS
One advantage of bonds is that they can be a more affordable option for defendants who cannot afford bail. However, the non-refundable fee charged by the bondsman can still be expensive, and if the defendant fails to appear in court, they may be subject to additional penalties and fees.
CASE LAW
MOHAMMED KUNJU V. STATE OF KARNATAKA
In this case, the court consider various factors with respect to the liability of surety under the ambit of section 446 and made the following observations.
Each surety is liable for a penalty in the forfeiture of the bond. allotment of half a share is not legal.
Forfeiture of a bond would entail the penalty against each surety for the amount which he has undertaken in the bond executed by him. Both the sureties are not supposed to share the amount by half as each surety is made liable to pay the amount.
REFERENCES
[1] https://www.legalspecs.org/post/need-for-amendment-in-bail-bond (July 4, 2023)
[2] R.V. Kelkar’s Criminal Procedure
[3] Amir Chand & Anr. v. The Crown 1950 Civil J 480
[4] https://www.legalserviceindia.com/legal/article-1808-therioes-ofpunishment.html
[5] Ratanlal & Dhirajlal’s the Code of Criminal Procedure