FATIMA JINNAH WOMEN UNIVERSITY

THE CODE OF CRIMINAL PROCEDURE, 1908

SUBMITTED TO: Sir Sana Ulllah

SUBMITTED BY: Mahnoor Paracha

Written Submission
ARREST & ATTACHMENT BEFORE JUDGMENT

Assignment No. 2

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 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………...2
1. MEANING OF BAIL ……………………………………………………….....3
1.1 Definition of Bail…………………………………………………………………….........3
1.2 Object and Purposes of Bail……………………………………………………………...4

1.3 Categories of bail…………………………………………………………………………4

2. BAIL UNDER THE CODE OF CRIMINAL PROCEDURE……………………………...6
2.1 Bail in bailable offence (Section 496)……………………………………………………6
2.2 Bail in Non-bailable Offence (Section 497)……………………………………………...7
2.3 Anticipatory Bail (Section 498)…………………………………………………………..7
2.4 Bail Bond and Surety (Section 499………………………………………………………8
2.5 Power to Order Sufficient Bail when that First Taken is Insufficient (Section 501)
……………………………………………………………………………………………..…9
2.6 Discharge of sureties (Section 502)……………………………………………………….9
CONCLUSION…………………………………………………………………………………..9

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  INTRODUCTION
The concept of bail emerges from the conflict between the ‘police power’ and to restrict the
liberty of a man who is alleged to have committed a crime and the presumption of innocence in
his favour.
‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. The surety is
termed ‘bail’ because the person arrested or imprisoned is placed in the custody of those (surety)
who find themselves or become bailer for his due appearance when required. Surety must be
those persons who have authority to bail the arrested person to appear before the court on a
certain date. It is upon the bonds of those sureties that the person arrested or imprisoned is
bailed, i.e., set at liberty until the day appointed for his appearance. The effect of granting bail is
not to set the prisoner free from jail or custody, but to release him from the custody of law and to
entrust him to the custody of his sureties who are bound to produce him to appear in the court at
a specified time and place. The necessary corollary is that it is open to the sureties to seize the
prisoner at any time and any discharge themselves by handing him over to the custody of law
and the result would be that he (the prisoner) would be then imprisoned.

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 1. Meaning of Bail
Bail is a security given for the due appearance of a person arrested or imprisoned to obtain his or
her temporary release from legal custody or imprisonment.
In common law, an accused person is said to be admitted to bail, when he or she is released from
the custody of the officers of court and is entrusted to the custody of persons known as his or her
sureties who are bound to produce him or her at a specified time and place to answer the charge
against him or her and who in default of so doing are liable to forfeit such sum as is specified
when the bail is granted1.
Wharton’s Law Lexicon explains ‘bail’ as2:
To set at liberty a person arrested or imprisoned on security being taken for his or her appearance
on a day and a place certain, which security is called bail, because the party arrested or
imprisonment is delivered into the hands of those who bind themselves or become bail for his or
her due appearance when required in order that he or she may be safely protected from prison, to
which they have, if they fear his or her escape etc, the legal power to deliver him or her.
Hence, the tradition and logical conception of bail in forensic phraseology means release of a
person from custody or prison and deliver into the hands of sureties who undertake to produce
him or her in court upon an appointed day. Criminal law, ‘bail’ means to set free, liberate or
deliver the accused from arrest or out of custody, to the keeping of other persons, on their
undertaking to be responsible for his or her appearance at a certain day and place to answer to the
charge against him or her. These persons are called his or her sureties.
1.1 Definition of Bail
According to the Cambridge Advanced Dictionary (3rd ed.)3, asum of money which a person who
has been accused of a crime, pays to a law court so that they can be released until their trial. The
payment is a way of making certain that the person will return to court for trial.
Bail is the money a defendant pays as a guarantee that he or she will show up in court at a later
date. For most serious crimes a judge or magistrate sets bail during an arraignment, or in federal
court at a detention hearing.
For minor crimes bail is usually set by a schedule which will show the amount to be paid before
any court appearance (arraignment). For more serious crimes, the amount of bail is set by the
judge at the suspect’s first court appearance. The purpose of bail is to guarantee the scheduled
appearance of the defendant in court. While the Constitution guarantees the right to reasonable
bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the
defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail
by non-appearance since the bail is equivalent to the fine.
1
http://www.businessdictionary.com/definition/bail.html
2
https://thextonlawyers.com.au/service/criminal-law/bail
3
https://dictionary.cambridge.org/dictionary/english/bail

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1.2 Object and Purposes of Bail4
The object of keeping an accused person in detention prior to, or during the trial is not
punishment but
(i) To prevent repetition of offence with which he is charged; and
(ii) To secure his attendance at the trial.
However, every criminal proceeding is based on a prima facie assumption of guilt and again
there is a presumption of innocence in favour of the accused of the accused. Bail serves the
purpose of presumption of innocence. And at the same time, the conditions of bail like
appearance in the court on fixed date and time serves the purpose of prima facie assumption of
guilt against the accused. There are varieties of purposes behind granting a bail. This may be, for
example, for appearance before a court, for presenting appeal; pending reference or revision; or
for the purpose of giving evidence etc.
1.3 Categories of bail5
Provisions as regards bail can be broadly classed into two categories:
1) Bailable cases, and
2) Non- bailable cases.
In the former class, the grant of bail is a matter of course. It may be given either by the police-
officer in charge of a police-station having the accused in his custody or by the Court. The
release may be ordered on the accused executing a bond and even without sureties. In non-
bailable case, the accused may be released on bail: but no bail can be granted where the accused
appears on reasonable grounds to be guilty of an offence punishable either with death or with
imprisonment for life. But the rule does not apply to
(i) a person under sixteen years of age,
(ii) a woman, or
(iii) a sick or infirm person. As soon as reasonable grounds for the guilt cease to appear,
the accused is entitled to be released on bail or on his own recognizance; he can be
also released, for similar reasons, between the close of the case and delivery of the
judgment. When a person is released on bail, the order with reasons therefore should
be in writing.
A person released on bail may be taken into custody by order if the Court. In the same way the
High Court or the Court of Session may admit a person to bail or reduce the amount of the bail.
As soon as the bail bond is executed, the accused is entitled to be released from custody. When
the amount of bail taken td found to be insufficient, the Court may demand additional bail. A
surety who is once accepted is at liberty to apply to the Court for his discharge; and the accused

4
http://lawtimesjournal.in/bail-under-crpc/
5
http://lawtimesjournal.in/bail-under-crpc

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 is then called upon to find fresh sureties. In case of non-bail able offence bail may be given by
the following name and circumstances6:

i. Anticipatory Bail (before arrest)

ii. Interim or Ad-interim Bail
iii. Bail after conviction

i. Anticipatory Bail (before arrest)

When a person is granted bail in apprehension of arrest, this is called anticipatory bail. This is an
extra-ordinary measure and an exception to the general rule of bail. When any person has reason
to believe that he may be arrested on an accusation of having committed a non-bail able offence,
he may apply to the High Court Division or the Court of Session for a direction and the court
may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. There is no
section or provision which specifically authorizes the court to grant an anticipatory bail.
However, application is made under sec. 498 of the CrPC for an anticipatory bail. This is
because of the wording in the section, “in any case”. Thus the power given in this section is very
wide and can be exercised by both the High Court Division and the Court of Session in any case
without any limitation.

ii. Interim or Ad-interim Bail

There is no express legal provision of ad-interim or interim bail. However, this kind of bail may
be granted at any stage of a case by way of court’s inherent power. If the case is pending in the
Magistrate Court, application for such a bail will have to be filed in the Sessions Court under
section 497 of CrPC and if the case is in the Sessions Court, application will go to the High
Court Division against the order of the Sessions Court.
iii. Bail after conviction
The Section 496 and 497 have no application where a person has been tried and convicted even
though the conviction is for bail able offence. Section 496 and 497 are in terms confined to
accused person and a person after conviction cases to be an accused. Sections 426 and 435 of
CrPC would be relevant for bail after conviction. Bail after conviction may be of two types:

a. Bail pending appeal under section 426 and 498 ; and

b. Bail pending revision under section 435.

The discretionary power of the Court to admit to bail is not arbitrary, but is judicial, and is
governed by established principles. The High Court of Bangladesh directed that when a
particular person surrenders and makes an application for bail, it should be considered the same

6
https://www.academia.edu/28594148/Right_of_Bail_in_Pakistan

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day. However, if it has to be adjourned, the applicant should be directed to appear on the date
fixed with a further direction to the police not to arrest him till disposal of his bail application.
But it does not mean that the bail application should be allowed invariably. It may also be
dismissed. Short term release or keeping good conduct during that period shall not be the sole
ground for enlarging a person on bail finally.
It should be decided on merits alone. The object of the detention of the accused being to secure
his appearance to abide the sentence of law, the principal inquiry, Courts have considered the
seriousness of the charge, the nature of the evidence, the severity of the punishment prescribed
for the offence and, in some instances, the character, means and standing of the accused.
2. BAIL UNDER THE CODE OF CRIMINAL PROCEDURE
In the CrPC the term ‘Bail’ has not been defined but has been used sometimes singly and more
often it has been used in juxtaposition with other terms which are as follows: ‘bail’, ‘security for
bail’, ‘bond with surety’ and so on. Chapter XXXIX of the Code of Criminal Procedure, 1898
(Act No. V) deals several sections related to Bail in the following way-
2.1 Bail in bailable offence (Section 496)7
Section 496 of the Code of Criminal Procedure, 1898 describes when bail is to be taken. The
section state as, “when any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer-in-charge of a police station, or appears or is
brought before a Court, and is prepared at any time while in the custody of such officer or at any
stage of the proceedings before such Court to give bail, such person shall be released on bail;
provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such
person, discharge him on his executing bond without securities for his appearance as hereinafter
provided: Provided further that nothing in this section shall be deemed to affect the provisions of
section 107, sub section (4) or section 117, sub-section (3).
2.2 Bail in Non-bailable Offence (Section 497)8
Section 497 of the CrPC states about power to direct admission to bail or reduction of bail. The
amount of every bond executed under this Chapter shall be excessive; and the High Court
Division or Court of Sessions may, in any case, whether there be admitted to bail, or that the bail
required by a police officer or magistrate be reduced.According to the section 497 of the CrPC,
(1) when any person accused of the any non-bailable offence is arrested or detained without
warrant by an officer-in-charge of a police-station. Or appears or is brought before a Court, he
may be released on bail, but he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or transportation for life:
Provided that the Court may direct that any person under the age of sixteen years or any women
or any sick or infirm person accused of such an offence be released on bail.

7
Chapter XXXIX of the Code of Criminal Procedure, 1898 (Act No. V)
8
Chapter XXXIX of the Code of Criminal Procedure, 1898 (Act No. V)

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(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trail, as the
case may be, that there are not reasonable grounds for believing that the accused has committed a
[non-bailable offence], but that there are sufficient grounds for further inquiry into his guilt the
accused shall pending such inquiry, be released on bail, or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties for his appearance as hereinafter
provided.
(3) An officer or a court releasing any person on bail under sub-section (1) or sub-section (2)
shall record in writing his or its reasons for so doing.
(4) if at any time after the conclusion of the trial of a person accused of a non-bailable offence
and before judgment is delivered, the Court is of opinion that there are reasonable grounds for
believing that the accused, if he is in custody on the execution by him of a bond without sureties
for his appearance to hear judgment delivered.
(5) the High Court Division or Court of Session and in the case of a person released b itself, any
other Court may person who has been released under this section to be arrested may commit him
to custody “Save in accordance with law” as mentioned in Article 32 not only refers to criminal
law but also civil law which provides for arrest and detention, namely, for recovery of decrial
dues and public dues.
Section 497 of the Code of Criminal Procedure is a procedural law and the accused having
alleged to have committed a substantive offence of murder his liberty is curtailed.
2.3 Anticipatory Bail (Section 498)9
Section 498 of the Code of Criminal Procedure, 1898 states about the ‘Power to direct admission
to bail or reduction of bail’. The section states, The amount of every bond executed under this
Chapter shall not be excessive; and the High Court Division or Court of Sessions may, in any
case, whether there be an appeal on convection or not, direct that any case, whether there be an
appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by
a police-officer, or Magistrate be reduced.
A Member of Parliament being enlarged on bail cannot avoid appearance before the trial Court
simple on the plea that the Parliament is in session. The question of granting or refusing bail
depends upon the particular circumstances of each case and the mere fact that an offence is
punishable with death or life imprisonment is not by itself sufficient to refuse bail.
The grant of bail is the discretion of the court and the Court could consider the exercise of
discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be
concluded within the specified time.

9
Code of Criminal Procedure, 1898 (Act No. V)

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The apprehension that there is possibility on the part of the petitioner to interfere with the
process of investigation and of tampering with the evidence has got no basis at all. The attending
circumstances shown the petitioner deserve bail.
The deceased was killed in her husband’s house and naturally he was then her best custodian and
he is supposed to know the cause of her death, but the story narrated in the UD Case which was
ended in the final report creates presumption about the implication of the husband in the
occurrence. Moreover, there is no cause to consider the prayer for his bail in the light of the
decision referred which was given in an appeal.
Non-compliance of direction of High Court Division by the Court below as to conclusion of trial
of the case within 4 months will not create any right to the accused Harun to be entitled to get
bail disregarding the allegation of overt act against him. Court of law must act upon materials on
record to decide the question of granting or non-granting of bail.
As the petitioner has no forum to surrender at this stage and police is after him the accused-
petitioner is enlarged on anticipatory bail for limited period till submission of police report.
2.4 Bail Bond and Surety (Section 499)10
Section 499 of the Code of Criminal Procedure, 1898 provides that provision bonds of accused
and sureties which is following under,
1. Before any person is released on bail or released on his own bond, a bond for such sum
of money as the police-officer or Court, as the case may be, thinks sufficient shall be
executed by such person, and, when he is released on bail, by one or more sufficient
sureties conditioned that such person bail, by one or more sufficient sureties conditioned
that such person shall attend at the time and place mentioned in the bond, and shall
continue so to attend until otherwise directed by the police officer or Court, as the case
may be.
2. If the case so requires, the bond shall also bind the person released on bail to appear
when called upon at the [High Court Division], Court of Sessions or other to answer the
charge.
2.4 Discharge from Custody (Section 500)11
According to the Section 500 of the Code of Criminal Procedure, 1898,
(1) As soon as the bond has been executed, the person for whose appearance if has been executed
shall be released; and when he is in jail, the Court admitting him to bail shall issue an order of
release to the officer in charge of the jail, and such officer on receipt of the order shall release
him,

10
The Code of Criminal Procedure, 1898 (Act No. V)

11
The Code of Criminal Procedure, 1898 (Act No. V)

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(2) Nothing in this section, section 496 or section 497 shall be deemed to require the release of
any person liable to be detaining, for some matter other than that in respect of which the bond
was executed.
2.5 Power to Order Sufficient Bail when that First Taken is Insufficient (Section 501)12
Section 501 of the Code of Criminal Procedure, 1898 provides the provision of power to order
sufficient bail when that first taken is insufficient. The Section states as, If through mistake,
fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become
insufficient, the Court may issue a warrant of arrest directing that the person released on bail be
brought before it and may order him to find sufficient sureties, on his ailing so to do, commit him
to jail.
2.6 Discharge of sureties (Section 502)13
In the code of criminal procedure Section 502 states,
1) all or any sureties for the attendance and appearance a person released on bail may at any
time apply to a Magistrate to discharge the bond, either wholly or far as relates to the
applicants.
2) on such application being made, the Magistrate shall issue his warrant of arrest directing
that the person so released be brought before him,
3) on the appearance of such person pursuant to the warrant or on his voluntary surrender,
the Magistrate shall direct the bond to be discharged either wholly or so far as relates to
the applicants, and shall call upon such person to fond other sufficient sureties, and, if he
fails to do so, may commit him to custody.

Conclusion

From the above mentioned discussion it is clear that Bail matter plays a significant role in a
criminal case, because it is the ultimate goal of the accused. Bail is the right of the party. Anyone
wants a bail who is arrested living in jail means they want a bail at any time. To set free, or
deliver from arrest, or out of custody, on the undertaking of some other person or persons that he
or they will be responsible for the appearance, at a certain day and place, of the person bailed.

12
The Code of Criminal Procedure, 1898 (Act No. V)
13
The Code of Criminal Procedure, 1898 (Act No. V)

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