“Judges should be more inclined towards bail and not jail.”
Justice V.R. Krishna Iyer
What is Bail?
Bail is a set amount of money that acts as insurance between the court and the person in jail (the defendant.) Defendants have the option to pay their bail in cash, but many cannot do this.
Since bail is often set at a high amount, most defendants are financially unable to post bail by themselves. They seek help from a bail agent, or Bail Bondsman, who posts a Bail Bond for them.
What is a Bail Bond?
A Bail Bond is a type of surety bond provided by a surety bond company through a bail agent or Bail Bondsman that secures the release of a defendant from jail.
There are two types of Bail Bonds:
Criminal Bail Bond: used in criminal cases and guarantees that a defendant appear for trial when called upon by the court and guarantees payment for any fines or penalties that are decided against the defendant.
Civil Bail Bond: used in civil cases and guarantee the payment of the debt, plus interest and costs, assessed against the defendant
Types of Bond
Personal Bond: A judge may allow an accused to release him on bail by taking bond stating that a criminal defendant will appear at all future court dates. The accused doesn’t have to post bail, but will forfeit the amount in the bond if the promise to appear is broken. Here the offence committed by him is not of very serious nature or a minor crime of non-violent nature.
Surety Bond: This type of bond involves a friend or relative, with the help of a bail agent can get a bail for the accused. If an accused is not able to pay a large amount in cash for the bail, a bail agent from a surety company will promise to pay the entire amount of the bond to get the bail of the accused.
Property Bond: If the accused is not able to pay the bail amount in cash but one can obtain the bail by showing property in lieu of cash. The accused have to show the equal value of property in exchange to the cash.
The fee for the bail-bond is always decided by the judge of the court it may be only 10%-20% is to paid at the time of bail or the full bond payment may be demanded by the court.
The amount of the bail depends on the following conditions:
Seriousness of the crime, in terms of injury to others.
Suspect’s criminal record.
Danger that the suspect’s release might pose to the community.
Suspect’s ties to the community, family & employment.
This type of agency existed in the type of surety bond. There may be a bail-bond agency who charges a fees in exchange for the posting of the bond. They may also demand collateral before posting bond as the agency will be responsible to pay the full bail if the suspect jumps bail or fails to appear as promised.
Parties for Bond-Execution
• Sessions Court, High Court & Supreme Court
• Police Officer (SHO) or investigating officer Authority
• Under-trial prisoners
• Convicted prisoners
• Suspected persons
• Under- appeal prisoner Defendant
• Bondsman (by bond-agency)
• Relatives & friends
• Himself Surety
Steps for Bail Arrest of person Friends & relatives contact-
Attorney Contact Bail Agency near to jail for bail assistance Bail Bond real estate Agent accepts Documents are to be reviewed and signed by friends & family Defendant Released
Bail Indemnity Contract Bail Bond Application Form Deposit of money Surety Form no. 2 sealed , 2 passport size photographs of surety Id Proof, Address Proof of surety & Financial Statements of surety Documents required for bail bond
Rights & Liabilities
A bail bondsman will take out a security against a defendant’s assets in order to cover the costs of the bail. If the defendant does not have enough assets, then the bondsman may take out security against individuals, such as relatives or any friend of the defendant who are willing to assist. When securities are taken out a bondsman often requires that 10% cash payment in addition to mortgage on a person’s home that would equal the full amount of the bail bond money owed. In case of non-arrival in court the bondsman has the power to hire a bounty hunter to track the defendant down. Right to file the case against defendant for the recovery of the payment made by him in case of the default of the appearance in the court
When Surety gets discharged?
When the defendant fulfills the condition of the bond by appearing in the court on the specified date.
If the terms of bond becomes impossible to execute, such as by the death of the defendant or by his or her arrest, detention, or imprisonment on another offense in the same or different jurisdiction.
State of Rajasthan v. Balchand, 1977
While the system of pecuniary bail has a tradition behind it, it may well be in that in most cases not monetary suretyship but undertakings by the relations of the petitioner or organisation to which he belongs may be better and more socially relevant.
Moti Ram v. State of M.P. 1978 A poor man was arrested and Rs. 10,000 was fixed as surety and further court refused to allow his brother to become a surety as his property was in adjoining village. Appeal was filed before apex court
Times of India v. State of Bihar, 2006 A suo-moto PIL was initiated by Patna High Court for the efficient and effective enforcement and implementation of the amended provision of Section 436A of CrPC. In pursuant to the directions issued by High Court the government filed an affidavit stating that 247 prisoners were entitled to get the bail under sec 436A of CrPC. In its interim order court gave the directions for the constitution of a jail cell for districts and sub-divisions which would have a free hand in evolving procedure to regularly monitor such cases of under-trial prisoners.