Bail not Jail – When does it Happen?

The purpose of law, as enacts by the Parliament, is nothing but a justice orient. However, not all law are just, and not all law are justice oriented. Those statutes that aim to provide justice ought to read as it is, and those law that fail to deliver justice ought to read otherwise.

Civil and Criminal Procedure Code (CCPC) of Bhutan 2001, for instance, is to further the ends of justice and not to frustrate the litigants by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well understood lines that accord with notions of natural justice. The provisions of the CCPC incorporates the elements of natural justice, fair trial, and due process of law ensuring that rights of accused is best protected.

One fundamental principle incorporated in the CCPC is the provision of Bail – the most important legal principle in criminal justice system which is mostly unknown for the general public and thoroughly misused by the authority. I pose a question: How many accused are informed of bail provision during his/her production before the judge? How many policemen, when accused is produced before the judge within 24 hours, also go with bail application of the accused instead of requesting remand order? How many policemen have considered the significant of “personal liberty” of the accused as important as theirs? The word ‘remand’ is on their tip of tongue, and bail is almost a forgotten legal principle. This is a disaster.

In this piece of writing, I would like to consider a simple issue: When is the bail application be considered?

There are two diverse opinion: one of mine, and one of judges, prosecutors and police [of course not all of them].

According to the judges and prosecutors, bail application can only be considered after the Preliminary Hearing. In other words, an accused can be released on bail only after the Preliminary Hearing is completed. Their legal reasoning is completely unknown.

However, according to me, and those who do not appreciate the above view, bail is to be granted as and when the accused is being produced before the judge within 24 hours. This opinion is repeatedly shared by Honorable Chief Justice of Bhutan, Lyonpo Tshering Wangchuk in several occasions.

My opinion is cemented by the provisions of the CCPC, and also the constitutional provisions. Section 190 of the CCPC empowers a Court to conduct Preliminary Hearing of a case within ten days of registering it in the Registry of the Court. The subsequent Section 190.1 enables the Court to determine whether sufficient cause exists to proceed with a criminal prosecution and if so, whether the suspect should be detained or released on bail in accordance with the Code. The judges refer to these particular provisions and say that the bail is to be granted only during and after the Preliminary Hearing is completed. This is a complete wrong.

Section 199 of the CCPC states that: “Where a suspect other than a person accused of non-bailable offence in the Preliminary Hearing submits that he/she is not guilty and subject to the conditions stated in this Code, the Court may decide to release him/her on bail upon execution of a bond for such sum of money by one or more sureties”. If bail is granted only during/after Preliminary Hearing based on this provision, I think we are defeating Section 188.2 of the Code where it states that:

“A person arrested and detained for bailable offence may be released on bail, provided:

  1. he/she makes available to the police as and when required during the course of the investigation; and
  2. remain within the limits of any particular area as prescribed in the bail order.”

Reading Section 188.2(a) is fascinating. A person arrested or detained for bailable offence may be released on bail if he/she makes available to police as and when required during the course of the investigation. The word “makes available to police during investigation” connotes that bail can also be granted during the time of investigation and not only during/after the Preliminary Hearing. The Preliminary Hearing, however, is a trial process where it is conducted much after the exhaust of pre-trial process and police investigation. Moreover, Section 188.2 is inserted subsequent to the Section 188.1 of the Code which provides for the production of accused before judge within 24 hours. Therefore, I see no reason why bail application cannot be accepted when the accused is produced before the court of law.

My understanding of bail is also closely associated with the provision of the Constitution of the Kingdom of Bhutan, which I decide not to go in detail. The Personal Liberty is of utmost importance recognised in the preamble and Article 7(1) of the Constitution. One of the fundamental rights of every human being is the enjoyment of personal liberty and liberty is deprived when bail is refused.

Bhutan has a unique practice of doing things. Not all accused will be detained, and not all accused’s bail application will be considered only after Preliminary Hearing. There may be instances where bail application is considered much before the Preliminary Hearing. I do not want to narrate how does uniqueness happens.

In short, bail is either a matter of right or of discretion. Upon arrest and prior to conviction, it is a matter of right when the offence charged is not above second degree felony. However, it becomes a discretion when bail conditions set in the Code are not complied with.


One thought on “Bail not Jail – When does it Happen?

  1. Although the provisions regarding the granting of bail after the preliminary hearing are clear in the Civil and Criminal Procedure Code of Bhutan 2001 (Sections 190.1 and 199), I am of the opinion that doing so goes against the fundamental principle of criminal law, “the accused is to be presumed innocent until proven guilty beyond any reasonable doubt”. Refusing to grant bail during the production of the accused before the judge and detaining him till the preliminary hearing is conducted in a way presumes that the accused is guilty even before his/her trial begins. Therefore, the very provisions that deny the accused his right to bail during the production before judges are in conflict with the fundamental rights enshrined in articles 7(1) and 7(16) of the Constitution.
    Maybe, the legislators should look into amending the Procedure Code to ensure that the fundamental rights of every individual is not infringed.
    Just my thought la.


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