2021 LHC 1189
Merriam-Webster Online Dictionary defines ―bail‖ as ―the temporary release of a prisoner in exchange for security given for his appearance at a later hearing.‖ According to Black‘s law Dictionary, bail means ―a security such as cash, a bond, or property; esp., security required by a court for the release of a criminal defendant who must appear in court at a future time‖. In short, bail refers to the practice of releasing a person from custody, awaiting trial or an appeal, on payment of money or pledge of property to ensure his appearance before the legal authority concerned at the stipulated time.
The concept of bail dates back to 399 BC when Plato tried to create a bond for the release of Socrates. However, the modern bail system evolved in the middle ages. In England, magistrates used to go from one county (shire) to another to decide cases. The sheriff was charged with the duty to hold the accused till the magistrate arrived. This led to widespread abuse of power and corruption. Furthermore, the conditions in which the accused were kept used to be very unhygienic and inhumane and spread diseases. The Parliament took stock of the situation and while passing the first Statute of Westminster, which assembled and codified 51 existing laws – many originating from the Magna Carta – also laid down the criteria for bail. In 1486, the Parliament mandated that approval of two Justices, rather than one, would be required to release a prisoner. In 1554, the Parliament ordained that the bail bond decision should be made in an open session. Some judges would detain a person indefinitely by fixing an unusually high monetary amount of a bail bond. The English Bill of Rights 1969 addressed this foible and stated that ―excessive bail ought not be required.
The US Constitution does not define which crimes are bailable but the Eighth Amendment expressly prohibits ―excessive bail‖. This provision is based on old English Common Law and the English Bill of Rights. The Congress has enacted the Bail Reform Act of 1984 which presently governs the right to bail in federal criminal cases. Although bail practices in the United States vary from state to state, most of them have provisions preventing excessive bail.
In India, there is no constitutional provision like the Eighth Amendment in the US Constitution but the purpose is served by section 440(1) of the Indian Criminal Procedure Code, 1973, which says that ―the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
In the United States the excessiveness is now understood in terms of overall reasonableness. ―Excessive bail‖, writes Timothy , ―is now, in fact, a misnomer, because bail more appropriately defined as a process of release does not land itself to analysis for excessiveness. Instead, since it was first uttered, the phrase excessive bail has always applied to conditions of bail or limitations on pretrial release.
In Pakistan, the powers of the police/court to take bond from a person accused of bailable/non-bailable offences is covered by Chapter XXXIX (sections 496-502) of the Code of Criminal Procedure, 1898. Section 498 of our Code is similar to section 440 of the Indian Criminal Procedure Code of 1973 discussed above.
Our jurisprudence is consistent that while stipulating the amount of surety bond the court must always take into consideration the financial position of the accused.
The right to a reasonable bail is now considered to be closely related to the right of fair trial. According to Encyclopedia Britannica, 7the rights and privileges of an accused which guarantee him a fair trial were ―initially (generally from the 18th century on) confined primarily to the actual trial itself, but in the second half of the 20th century many countries began to extend them to the periods before and after the trial … Certain very general rights are attached to the process. An accused must not be allowed to languish indefinitely in jail but must be given a speedy trial. Involved with this issue are the rights to a reasonable bail and prohibitions against being detained for more than a specified time without bail.‖ The same thought was echoed in Criminal Petition No. 801-L/2020 titled “Shahzada Qaiser Arfat @ Qaiser v. The State etc.” decided on 3.2.2021 in which the Hon‘ble supreme Court of Pakistan observed: ―The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial … protection against arbitrary arrest and detention is part of the right to liberty and fair trial.
In the light of the jurisprudence discussed above, the right to a reasonable bail inter alia means that –
(i) the court should fix the amount of the bond having due regard to the circumstances of the case, including the nature of the offence charged, the weight of evidence against him, the financial capacity of the accused and his character/criminal history;
(ii) the amount of the bail bond should not be excessive, harsh or unreasonable but should be such as in the judgment of the court would ensure presence of the accused;
(iii) if there are more than one accused in a case, the court may stipulate different amounts for their bail bonds because each one of them stands before the bar of justice as an individual; and
(iv) in a case where the Government‘s only interest is in preventing flight, the court must set the bail at a sum designed to ensure that goal.
Albeit the above principles have been discussed with reference to pretrial and undertrial persons, they apply equally to cases where a convict‘s sentence is suspended and he is released on bail. There may be a debate as to what should be the considerations for bail before the conclusion of the trial and after conviction but section 426(1) Cr.P.C. does not make any distinction in respect of the bond.
The language of section 426(1) Cr.P.C. is plain and unambiguous. It is by now well settled that where the statute is clear and definite the court cannot look for and impose another meaning.
Crl. Appeal-Against Conviction-PPC
969-16
MAQBOOL AHMAD VS
STATE ETC
Mr. Justice Tariq Saleem Sheikh
08-02-2021
2021 LHC 1189
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