Bail has been established as a method for an accused person to be released from public custody and placed in private custody. However, for many years, courts have granted bail to the accused with an additional burden of restriction, and bail that is accompanied by such restriction or condition is referred to as conditional bail. The condition is usually imposed after assessing the risk of unconditional release. In Bangladesh, such a bail has been sanctioned by courts discretionarily beyond its jurisdiction. Therefore, an illegality has grown up here in the practice. It is mentionable that in some other countries, conditional bail may be granted since the law leaves a room accordingly. This write-up will dig into the question of the legality of conditional bail in Bangladesh and will also reflect on whether such bail is desirable or not.
Legal status of Conditional Bail
The bail mechanism has been dealt with in general by the Code of Criminal Procedure, 1898 (CrPC). Section 499 of CrPC governs the accused’s and sureties’ bond, requiring the accused to be present at the time and place indicated in the bond unless otherwise directed. Except for the aforementioned requirement, our statute does not validate any additional condition. Therefore, the CrPC has no provision for conditional bail. Concerning conditional bail, the court decided that it lacked authority under section 499 of the CrPC.
Moreover, section 513 enables the court to permit an accused to deposit a sum of money in place of a personal bond and surety. The said section never empowers a court to ask for cash security. Therefore, the court cannot impose a condition of cash deposit as a condition of bail. Furthermore, the court concluded in Mia Mahmud Ali Quasuri case that if the statute does not indicate that the power can be exercised conditionally or unconditionally, the imposition of a condition would be contrary to the provisions of the statute.
The current legal framework makes it clear that magistrates and sessions cannot grant conditional bail, even if the condition is reasonable. However, the power of the High Court Division (HCD) and the Appellate Division (AD) must be evaluated. HCD and AD cannot grant such bail under their regular jurisdiction. Nevertheless, AD can grant conditional bail under its constitutional power to do the complete justice under Article 104 of the constitution. The AD can grant such a bail to ensure complete justice for all the parties or to ensure the attendance of any person. However, AD is generally reluctant to use this constitutional power for granting conditional bail as in AHM Siddique v state, the AD reversed the HCD’s order stating that conditional bail is illegal and improper.
Conditional Bail in Practice
Granting conditional bail has been a common practice in Bangladesh, especially in lower courts despite its being unauthorized. Instances of the lower courts’ imposing condition on certain events are specified below:
I. Imposing condition to withdraw civil suit against the victim
In Md Rafiqual Islam v State,the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal -2, Gaibandha granted bail to the accused asking him to withdraw the civil suit which he filed against the victim. Later, HCD reversed the order making a rule absolute that the conditions are contrary to law. Even if the accused offers such a condition, the court cannot impose any kind of condition as per the law. In another case, the court went so far as to grant a conditional bail where the condition was to compromise the matter with the other party within a stipulated period and when they did not compromise, the court rejected the prayer of bail extension.
II. Imposing condition to make an impossible amount of payment
The HCD granted conditional bail in AHM Siddique v Statewhere the condition was to make payment of the entire fine of 9 lakhs BDT within six months and If the convicted person failed, the bail would stand automatically cancelled without any further reference. Thereafter, the AD set aside the condition keeping the bail valid and held that conditional bail is illegal. In reaching the decision, the court relied on two cases named Mia Mahmud All Qasuri and others v The State and Faizur Rahman Sarkar v State(unreported).
III. Imposing condition to furnish cash deposit
In RKM Reza vs State,the Session Judge granted bail with a condition to furnish 20,000 BDT cash deposit under section 513 of CrPC. Here it was held that the said section does not contemplate imposition of cash security rather it was a mere option for the accused or convicted person.
IV. Imposing travel restriction as a bail condition
There are so many unreported cases where travel restrictions are inflicted upon the convicted or accused persons. Recently, Dhaka Chief Metropolitan Magistrate (CMM) Court granted bail to journalist Rozina Islam asking her to submit her passport before the court. Imposing such a condition while releasing the accused is not valid according to the provisions of CrPC. Similarly, in an Indian case Kamal Pandey v The King, a condition was imposed not to leave a certain limit of area which was set aside by the High Court as it was tantamount to refusing the bail. However, now the Indian court has the scope to impose a travel restriction according to its CrPC and to some extent the Indian practice of imposing such conditions has influenced our court to move ahead illegally. However, it will not be illegal to impose a reasonable restriction on travelling or on freedom of movement subject to some requirements under Article 36 of the constitution. Hence, such conditions need to be lawful and in favour of public interest.
From the abovementioned decisions of the Supreme Court, it is clear that the Courts are not allowed to impose conditions on bail. However, it hardly had any impact on the lower courts and even in some cases of the HCD since the judges are often influenced by the foreign cases where conditional bail is legal and also by the politically driven cases.
Laws and Practice of Granting Conditional Bail in other jurisdictions
Unlike Bangladesh, some of the world’s leading jurisdictions have adopted conditional bail. In India, section 437(3) of CrPC, 1973 allows a court to grant such a bail on a non-bailable offence and section 438(2) of the same empowers a court to grant anticipatory bail with conditions. In the UK, the accused can be granted a conditional bail under section 3A of the Bail Act, 1976.
Mechanisms to resolve the illegal practice of granting conditional bail:
To overcome the illegal practice of granting conditional bail, there are two possible mechanisms; one of them will bring a bar on the prevalent unlawful practice and the other will bring legality therein.
- Placing an Immediate bar on the illegal practice
As discussed above, conditional bail is not sanctioned by any existing laws of Bangladesh. In the absence of any express legal sanction, the imposition of conditions while granting bail is against the provisions of the statute and thus illegal. The first possible step to overcome this illegal practice is to place a bar on such practice immediately. The strict implementation of the decisions of the SC declaring conditional bail illegal will place an immediate bar on the unlawful practice.
- Amending the existing statutes incorporating the provisions of conditional bail
Another possible mechanism to overcome this illegal practice is to bring an amendment to the existing provisions regulating bail, through incorporating the provisions of conditional bail. Such incorporation will bring legality to the prevalent practice of granting conditional bail and will ensure a step forward in ensuring fairness in the criminal justice system. To keep up the pace with the evolution of criminal jurisprudence, the conditional bail should be incorporated into our legal framework.
Why would an incorporation of Conditional Bail be viable?
Due to the pervasive illegal practice of incorporating conditional bail, we believe that steps should be taken to amend the CrPC immediately. Though the provisions never authorized courts to grant conditional bail, courts have occasionally issued bail with condition, as in the Md Rafiqul Islam case where the court stated that the conditions of a bail must be reasonable and manageable. Likewise, HCD directed that a bail shall not be cancelled until or unless the accused violates the condition of the bail. These examples demonstrate that imposition of a reasonable condition does not vitiate the purpose of bail and thereby the provisions as well. Our court is in favour of conditional bail only when it is necessary for the sake of justice. However, the legal framework of the country is still backdated and did not permit the courts to exercise this discretionary measure to ensure justice. This requires an amendment just like India.
According to English Law, the purpose of bail is to ensure the defendant’s attendance at the trial. If the Court releases the accused unconditionally, he may escape misusing the privilege. Hence, to avoid such occurrences, it won’t be illogical to put some restrictions so that the accused does not get any opportunity to take advantage of the privilege. For appreciating the concern, there needs to be a test to determine the possible action of the accused after being released on bail. The test should be applied with the following considerations:
- The nature of the accusation.
- The nature of evidence in support of the accusation.
- The severity of punishment which conviction will entail.
- Whether the sureties are independent or indemnified by the accused person.
In pursuance of such a test, if it is shown that the accused may repeat the same offence or the victim might get injured, then conditional bail would be ancillary to the proceeding. Therefore, the Indian Law Commission suggested incorporating conditional bail. For the same reason, an immediate amendment to our CrPC is recommended to ensure more lenient justice and to legalise the current practice of conditional bail.
Conditional Bail is not desirable to be imposed as a punishment
When a conditional bail is granted, there might be a possibility of granting the same as an alternative of imposing punishment upon the accused. In Bhagirath-sinh Judeja v State, it was held that the reason for refusing a bail should not be punishment; rather it should be the guarantee of appearance during the trial. Since an accused person is not a perpetrator until proven beyond a reasonable doubt, bail cannot be given along with a condition as punishment.
Conditional bail has been a prevalent practice in the judiciary of Bangladesh despite the absence of any legal basis. It has been demonstrated in this blog that reasonable conditions can be put on an accused in order to protect the public interest and to benefit both the victim and the accused. As a result, we need a prompt amendment in CrPC enabling the court to impose conditions in order to eliminate the restriction on the way to ensure proper justice.
 RKM Reza v State (1981) 33 DLR 146.
 (1963) 15 DLR SC 429.
 (1993) 45 DLR (AD) 8.
 (2007) 27 BLD 131.
 Hossain Md Rajib v State (2011)63 DLR 447.
 (1993) 45 DLR (AD) 8.
 (1963) 15 DLR 429.
 (1981) 33 DLR 146.
 (1949) AIR 382.
 (1993) 45 DLR (AD) 8.
 (2007) 27 BLD 131 .
 Md Ibrahim v State (unreported).
 R v Rose (1898) 67 LJ 286.
 Law Commission of India, ‘Report On Sections 497, 498 And 499 Of The Code Of Criminal Procedure, 1898 – Grant Of Bail With Conditions’ (Law Commission of India 1968) <https://lawcommissionofindia.nic.in/1-50/report36.pdf> accessed 31 July 2021.
 (1984) AIR SC 372