Bail - Definition - Law Dictionary Home Dictionary Definition bail

Definition :

Bail [fr. bailler, Fr., to hand over], to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc., the legal power to deliver him.

Means a security such as cash or a bond, especially security required by court for the release of a prisoner who must appear at a further time, Black Law Dictionary, 7th Edn., p. 135.

Bail, a temporary release of a prisoner in exchange for security given for the prisoner's appearance at a later hearing, Webster's Dictionary of Law, Indian Edn., (2005), p. 41.

Bail may be given either in civil or criminal cases.

In civil cases there were, before the abolition of arrest on mesne process by the Debtors Act, 1869:-

(1) Common bail, or bail below, given to the sheriff, after arresting a person, on a bail bond, entered into by two sureties, on condition that the defendant appear at the day and in such place as the arresting process commands (1 & 2 Vict. c. 110, s. 4).

(2) Special bail, or bail above, or bail to the action. This was bail given by persons who undertook generally, after appearance of a defendant, that if he should be condemned in the action, he should satisfy the debt costs and damages, or render himself to prison, or that they would do it for him.

Since the abolition of arrest on mesne process bail in civil cases is virtually extinct, but it may still be required in actions of ejectment brought by landlords. See (English) Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), ss. 213, 215 and 216.

Bail in criminal cases is given for the appearance of the party bailed to take his trial to attend a further examination of a charge against him.

In all cases of felony, and in certain misdemeanours, the justices of the peace may take bail at the time of the examination; and in all cases where a person charged with an indictable offence is committed to prison to take his trial for the same, it is lawful at any time afterwards, and before the first day of the sessions or assizes at which he is to be tried, for the justice who signed the warrant for his commitment to admit him to bail. The justices, however, have no power to admit any person to bail for treason, nor may bail in that case be allowed, except by order of a Secretary of State or by the King's Bench Division of the High Court, or a judge thereof in vacation; while, on the other hand, they are bound to admit to bail in all cases of misdemeanour, except such as the (English) Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 23, particularly enumerates (being perjury, obtaining property under false pretences, and other misdemeanours, the costs of prosecuting which are allowed out of the county rate); and as to all felonies, as well as to the misdemeanours so enumerated, they have a discretionary power either to admit to bail, or to commit to prison.

The (English) Bail Act, 1898 (61 & 62 Vict. c. 7), allows a justice, in cases within the 23rd S. of the (English) Indictable Offences Act, 1848, above mentioned, to dispense with sureties 'if in his opinion the so dispensing will not tend to defeat the ends of justice.'

The law as to bail and remand has been amended in several respects by the (English) Criminal Justice Administration Act, 1914, ss. 19-24, and 1925, s. 45.

The Bill of Rights, 1 W. & M. sess. 2, c. 2, expressly enacts that excessive bail ought not to be required.

By s. 5, sub-s. 2, of the (English) Coroners Act, 1887, coroners may admit to bail persons charged with manslaughter upon an inquisition before them, and by the (English) Municipal Corporations Act, 1882, s. 227, a borough constable may admit to bail persons charged with petty misdemeanours and brought into his custody, if a justice of the peace be not sitting.

The King's Bench Division of the High Court, or any judge in time of vacation, may admit to bail for any crime whatever; and by Rule 111 of the Crown Office Rules of 1906 applications for bail in felony or misdemeanour, where the party is in custody, must in the first instance be by summons at chambers for a writ of habeas corpus or to show cause why the defendant should not be admitted to bail either before a judge at chambers or before a justice of the peace, in such an amount as the judge may direct.

If unsuccessful the applicant can apply to another judge or renew his application to the Divisional Court, but cannot, it is submitted, appeal to the Court of Criminal Appeal: see R. v. Foote, (1883) 10 QBD 379; Ex parte Pulbrook, 1892 (1) QB 86. It is a criminal offence to agree to indemnify anyone who goes bail, R. v. Porter, 1910 (1) KB 369.

A shipowner is entitled to have his ship released from arrest upon giving bail. An undertaking by his solicitor will suffice, so that the bail-bond, if broken will be forfeited (The Cawdor, 1900, P. 47), and see R. S.C., Ord. XXIX., rr. 5 and 6.

There is no definition of bail in the Code although offences are classified as bailable and non-bailable. Law, at the service of life, must respond interpretatively to raw realities and make for liberties. Primarily Chapter XXXIII is the nidus of the law of bail. S. 436 of the Code speaks of bail but the proviso makes a contradistinction between 'bail' and 'own bond without sureties'. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence 'is prepared to give bail', Moti Ram v. State of Madhya Pradesh (1978) 4 SCC 47 (55): AIR 1978 SC 1594: (1979) 1 SCR 335.

To set free or liberate a person arrested or imprisoned on taking security for his a appearance, Kali Das v. SHO, 1979 Cr LJ 345 (J&K).

Temporary release from imprisonment on furnishing surety or security to appear for trial. (IPC, 1860, s. 205)

Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment thought the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety, Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409 (429): AIR 2000 SC 1023. (Criminal Procedure Code, 1973)