Introduction
There are many laws and statutes in the country of India. After independence, the country has seen many changes in the laws, statutes, and individual rights. India follows the blend of both common law and civil law, where many laws are from the English common law and civil law, they have taken property law, family law and contract law. Though, in this article, we are going to talk about a fundamental right which is of essential value in the world of criminal justice. The article is based on the bail bond structure of the court of law and their significant difference in detail.
Bail vs Bond
Bail is the amount of money the accused pays to be free from the custody of the magistrate and bond is what they sign and submit to the court of law for getting free from custody but the condition is that they need to appear to the court of law on the trial dates. And based on the bond, the amount paid for the bail by the accused person will not be returned in any case. They also cannot leave the city without permission taken from the undertaking authority of the case. Both bail and bond are interrelated, combining both terms can become the statutory right for the accused person.
Difference between Bail and bond in tabular form
| Parameters of comparison | Bail | Bond |
| DEFINITION | Bail is considered as the amount submitted by the accused person to the court of law, to free them until further trials. | A bond is what gets signed by the accused person where they are bound to certain rules. |
| Conditions | The bail amount has been fixed by the court of law and cannot be changed. | The accused person cannot leave the city or state without taking permission from the undertaking authority of the case. |
| Problem with not matching the conditions | Money submitted for the bail to be considered will not be returned if the accused person forgets to present at the next trials. | If any conditions are not matched in the bond, then the court of law will take immediate action against the accused person. It can be as strict as issuing a warrant. |
| Who submits the bond and money? | Money is submitted by either the accused person or the family representatives or the bail bondsman company. | It is only submitted through third-party connections like the bail bondsman company. |
| Consideration | The money for the bail submitted by the accused person should only be in cash. | Only third-party connections are allowed to submit and their bonds are only accepted in a court of law. |
| Cost | It is generally less in amount. And it is generally offered to the court of law. | It is high as compared with bail. The bail bond company takes the papers of a property from the accused person or any of its representatives to create a bond, and if the accused fails to appear in court, the property will be seized. |
| Money that is given | Money gets refunded once they have appeared for the trial. | The money they charge for the services provided like sanctioning the bond is ultimately non-refundable. |
Bail
Definition
Bail is the amount of money that an accused pays to the court of law to be released from jail while awaiting trial under the Code of criminal procedure schedule two. And schedule two explains the bailable offence.
First, let us understand bail in detail.
Bail is a fundamental right of any criminal justice that guarantees the accused the right to a fair trial. It is a statutory right enforced for the accused person. The practice is followed, to safeguard the fundamental right of a person, i.e., liberty. The fundamental right of liberty states that no person’s rights are taken without any proper judgement by a court of law. In simple words, it means that a person accused of a crime, should not be under custody for an endless period. If the procedures are not proving the person guilty, then taking them under custody for a long time is not acceptable.
Bail in simple terms
Bail in simple terms is the amount of money the accused needs to pay to get out of jail for a certain period and the person needs to submit a bond, where he or she requires not to leave the city or state without the permission of magistrate, if the case is under magistrate or without the permission of the police, if the case is under police. And the person also needs to be present on the upcoming procedures of the court as mentioned in the bond. If the person fails to do so, then the bail amount paid will be forfeited by the court.
What supreme court of India says?
Supreme Court says that Bail is devised as a technique for affecting the synthesis of basic concepts of human values, the right of an accused person to enjoy freedom and public interest. But the release from custody is conditional, the condition states that the accused person needs to appear at the court of law to stand trial on the mentioned dates.
Is bail a debatable concept
In recent times, bail has become a debatable concept. Numerous reports show that the bail granted is crucial as the consequences of pre-trial detention are given by state agencies. If the bail is rejected then the person faces psychological and physical deprivations of jailed life, until the time he is found not to be guilty. The person is presumed to be innocent but the court of law rejected their bail and due to that the accused faces deprivation of jailed life. Later, the accused person loses his job and is prevented from actively preparing for his defence. And due to the rejection of bail, not only the person faces the consequences but also the people associated with him. The heavy load comes on the shoulders of the innocent members of the family.
What is bail aimed to be?
1. Bail is designed to be a mechanism that completely ensures the accused person’s liberty without giving them any benefits.
2. The bail is important to understand the balance that needs to be created between the accused person’s rights and society’s interests.
3. Bail aims that it not just benefits the accused person but also benefits society, which is very important to be noted in a country that follows both the common law and civil law.
The term 'offence' is found in the provisions of Chapter 3 CrPC under Sections 436 to 450. 'Offense' is divided into two types- bailable offence and non-bailable offence.
- Bailable offence- The accused person who has a bailable offence is presumably in less danger and the sentence under this offence is less severe. The accused person under this offence can claim bail, which is the right they have under this offence. The accused person is punished for less than three years. Under Section 436 of CrPC, they can go to the police and appeal for bail. If the requirements have been met, then bail is issued to the accused person.
- Non-bailable offence- The accused person with a non-bailable offence cannot appeal for bail, as their right during arrest or custody. They can appeal at the court of law while on trial. The sentence under this offence is 3 years or more. Now, it depends upon the court of law, if they will get bail or not. Persons under this offence are in danger and the condition is more severe.
General principles of bail
1. Under bailable offences, police have the right to grant bail to the accused, which is guaranteed.
2. Only the court of law can grant bail to the accused person.
3. For The person, who has been charged with life imprisonment or death, judges do not have the right to grant bail in this matter. But women, who are sick or infirm and children below 16 are excused.
4. If there is any judicial discretion, then the appellant court has the highest authority
Types of Bail
- Regular Bail- If a person signs a bond and security for the release from jail is known as regular 'bail'. Under this, if a person commits a cognizable offence, then the police can take the person under custody. And the person with a bailable or non-bailable offence can apply for regular bail. The person with a bailable offence can apply to the police or the magistrate. And the person with a non-bailable offence can only apply to the magistrate.
- Interim Bail- People can apply to the court of law which is applicable for a shorter period. A person can apply for interim bail when regular Bail or anticipatory Bail is pending.
Key points-
- Interim bail is extendable.
- The accused can pay the money to extend their bail.
- Anticipatory Bail- A person can apply for this bail when they feel like getting arrested under any criminal case, or if anyone files an FIR against them, they can apply for this bill. If the bail gets granted, the police cannot arrest the person.
Conditions-
- It needs to be a bailable offence.
- The accused person needs to give a proper reason for their arrest.
- The application needs to be submitted before the arrest.
- The person is not allowed to leave the country.
Bond
A bond is a contract between the defendant court and the bail bondsman company. It is the contract of surety, which applies that person should appear for all the trials.
If the accused person cannot afford the bail, then they take the help of a bail bond company. The bail bond company offers them the amount, including a non-refundable 10% of the bail amount. As they get the money back from the court after their successful trial.
If they hire a bail bond company, then the company is responsible for their appearance at the trial. If a condition occurs that the accused person fails to appear in court, then the company hires a person to search for the person and return them to police custody.
Also, if the accused person does not appear at the trial. Then, the money submitted for the release to the court is forfeited. And if they appear at the court then their money will be given back by the court. 10% of the amount is given to the bondsman company if the accused has hired a company.
Many types of Bonds are-
- Cash bond- It is the most common bond, where the person or someone from their family pays the amount of bail. When they appear in all the court trials, the money gets refunded.
- Surety bond- The person hires a bail bond company for the bail amount. If they hire a company, then the company is responsible for their appearance in trials. The company pays the full amount of the bail on their behalf. If the person appears at the court, 10% of the bail amount is given to the company.
- Property bond- In this bond, the person keeps their property as collateral. They get bail based on their property. If they fail to appear in trials, then the property is seized.
- Release on Recognizance (ROR)- The person is released under this condition without posing bail. A promise is made on the court that they will appear in the upcoming trials. This applies to low-level people and people having a stronghold in the community.
Main differences between bail and bond in points
- Bail is the amount paid by the accused person for their release from custody, whereas bond is the contract signed to ensure they will appear in the next trial court.
- Bail is based on bailable or non-bailable offences, whereas bond is based on property, surety, ROR, or cash bonds.
- If the person does not appear to the court, then the bail will be forfeited and the bond signed with the bondsman company will catch the person to submit them under custody.
Conclusion
Both bail and bond are interrelated terms. Getting bail is impossible without signing a bond. In the court of law, the right of bail based on bond has helped many people. It has saved the fundamental rights of a person. It has saved the innocent from facing misunderstanding. And sometimes bail bond is a debatable topic as it is a vague concept. It does not help the poor, who cannot pay the bail amount. Overall, some find it very helpful and some find it vague and useless. It all depends on which basis you are comparing the concept of bail bonds.
