Overview of Bail and bond
Difference between bail and bond explains the dissimilarities of the two concepts based on consideration, fees, nature of money and deal etc. Therefore, it becomes important to know about the terminologies which are discussed in brief.
Bail is termed as the surety to obtain the release of a convict who is intended to give bail, a financial arrangement that he takes to set free from police custody or temporary release by paying the amount as collateral which is refunded as he enters for a trial.
While the anticipatory is categorised as special bail granted under Indian jurisdiction (section 438 of CRPC) by a high court having a non-bailable warrant (the person is not in police custody).
Objectives of Bail
The objective of bail lies to arrest and detent the accused person to safeguard his appearance during the trial by ensuring of the case if he is found guilty of the crime he can receive the sentence. So, Securing the presence of the defendant at the trials allows his liberty and protects the person from detention.
- To presume the innocence accused till the convict is concluded guilty
- Shield a person through misbehaviours happening due to false complaint
Offences under bail
- Bailable offence: Section 2(a) of the criminal procedure code describes the bailable offence. It states the punishable offence with a fine only or imprisonment for less than 3 years.
- Non-bailable offence: The same criminal code defines non-bailable offence as well as stated above. However, this is punishable with imprisonment for life, death, or imprisonment for 7+ years.
Considerations are taken by the court for granting bail to the convict
- Nature of offence.
- Character and reputation of the accused
- Character and strength of evidence
- Forfeiture of other bonds
- Determining the amount of bail, former criminal record and character of the defendant
- The ability of the accused to give bail
- Penalty for the offence charged
- Health of accused
- The probability of the accused appearing at the trial
- Whether the accused was a fugitive from justice when arrested
The following principles need to have adhered to while refusing or granting bail under section 437 of CRPC – Criminal Procedural Code applicable after the accused gets arrested:
- Bail may get rejected if the court has evidence or reasonable grounds that any kind of bail cannot secure the defendant convicted at the stage of judgement.
- The bail granted should not be refused until the convict is accused of a heinous crime/ bad record where punishment defined by law is severe.
- Bail should only be refused if there is a likeliness that the convicted person’s bail application will interfere with witnesses of prosecution (or pull out the process of justice)
- The Bail may get refused if the course of justice gets thwarted by the individual seeking benignant jurisdiction of the court to be freed for that time.
The bail bond is a kind of surety bond ensured by a company through a bail bondsman or bail agent who secures the release of a person (defendant) from jail. Typically there are two kinds of bail bonds:
- Civil bail bond: This type of bail bond is used in civil cases that guarantee payment of the debt in addition to costs and interest, assessed against the defendant.
- Criminal bail bond: This type is facilitated in criminal cases guaranteeing that the defendant appears on trial called by the court. Also, the payment for penalties or fines is ensured decided against the person.
Working of a Bail Bond
When a judge sets an amount of the bail, the defendant is unable to pay it on their own. So, He can seek the help of a bail bondsman in the form of a bail bond.
The defendant is required to make a payment of 10% (bail amount) to post a bail bond. Further, the bail bondsman secures the rest of the bail amount as collateral. However, if the defendant does not own enough collateral. Then the bail agent can seek out his friends and relatives to assist in recovering the bail.
Therefore, The happening of the next event depends on the possibility of the defendant appearing in court after being released.
- If the defendant appears for court: Depending upon the conclusion or result of the court case, the bail bond gets dissolved and the collateral is returned to the defendant or person who posted it. Moreover, the bail agent keeps his share of the 10% cash fee as profit.
- If the defendant fails to appear in court: The bail bond gets forfeited where the court demands the 90% of the bail amount required to pay. So, The bail agent uses the collateral ( jewellery, house, stocks etc) of the defendant to make the payment asked by the court.
Here are few sections that give more clearance about the topic of the difference between bail and bond in CrPC.
|Section 436||In what cases bail is granted|
|Section 436A of CrPC||The maximum period for which an undertrial can be detained|
|Section 437 of CrPC||When bail can be granted for non-bailable offences|
|Section 437A of CrPC||Bail to require accused person next appellate court|
|Section 438 of CrPC||Directions for grant of bail to person apprehending arrest|
|Section 439 of CrPC||Special powers of the high court or sessions court regarding bail|
|Section 440 of CrPC||Amount of bond and reduction thereof|
|Section 441 of CrPC||Bond of accused and sureties|
|Section 442 of CrPC||Discharge from custody|
|Section 443 of CrPC||Power to order sufficient bail when the first taken is insufficient|
|Section 444 of CrPC||Discharge of sureties|
|Section 445 of CrPC||Deposit instead of recognizance|
|Section 446 of CrPC||Procedure when the bond is forfeited|
|Section 447 of CrPC||Procedure in case of insolvency or death of surety or when the bond is forfeited|
|Section 448 of CrPC||Bond required for minor|
|Section 449 of CrPC||Appeal from orders under section 446|
|Section 450 of CrPC||Power to direct levy of the amount due on certain recognizance|
Bail and Bond Example
Ram got arrested and the court sets his bail at $10,000. He wants to get released but does not hold adequate cash. Therefore, Ram seeks help from a bail agent to post a bail bond for him.
So, now the bondsman needs $1000 to post resulting in his release. For the rest amount of $9000, the bondsman secures collateral from his family which was in the form of jewellery.
- If Ram does not appear in court, the bail agent has to pay $9000 of bail to the court using his collateral as jewellery.
- While if he appeared in court on all necessary dates, the agent requires no money and the bail bond gets dissolved as a result of Ram’s case. He receives his collateral in return but would not get $1000 back, since the bondsman will keep it as a profit.
- However, if Ram would have posted $10000 in cash, he would be facilitated with a refund at the end of the case, regardless of the outcome which is termed bail.
Difference between bail and bond
The terms bail and bond are substitutable and used for each other often. Briefly stating when a person gets arrested, he might demand bail depicting the temporary release of the accused on deposit of some security face only if he is awaited to trial.
However, when a 3rd party gets involved and is answerable for the arrested person under impeachment so it is referred to as a bond. After studying a brief about both concepts, the difference between bail and bond can be highlighted with mentioned major factors.
The difference between bail and bond can be started with bail being a temporary release of the potential convict. While bond involves a broker who facilitates good in case the convict fails to appear. So, The bond involves an intermediary party taking the headache with complete accountability for situations of onuses pending or commitment.
Moreover, there are other points of difference between bail and bond discussed below:
|Definition||When a smaller amount as a fee is paid on behalf of the defendant due to which the court permits him to stay out of jail is termed as bail.||However, if the convict does not appear in jail, after a set duration and time then the offence shifts to bondsman which is referred to as a bond.|
|Fine or fees paid||The convict himself pays the amount or someone from his family or relatives||The additional separate bail agent or party broker pays the amount|
|Consideration||Cash becomes the only consideration kept as evidence under bail.||Whereas the bondsman takes complete responsibility for the debts and all the obligations of the convict in case of a bond.|
|Nature of money||The money deposited is fully refundable once the tenure is over under the case of bail.||Even after the dues and obligations are completed by the defendant, the money deposited is not returned based on.|
|Cost incurred||The expense under bail is relatively lower||The bond plus the fees of the bondsman makes this side a costlier deal for the convict.|
|Nature of deal||This kind of system is fully secured by government rules and regulations.||While the bond is also secured but the 3rd party influence involves a lengthy procedure.|
Therefore, bail is considered a type of security for giving assurance. Depending upon the kind of crime the defendant will appear in court whenever asked. Whereas involving 3rd party in this procedure reflects a bond. A brief comparison between the two explaining the difference between bail and bond is covered based on consideration, cost, nature of money etc.