March 31, 2023

Difference between Bail and Bond

This articles has been written by Ms. Khyati Kanoje, a student studying B.A.LL.B (H.) from Narsee Monjee Institute of Management, NMIMS, Indore. The author is a 3rd year law student. 

Title: Difference between bail and bond.

Table of Contents

Introduction 1

Bail 2

Meaning of Bail: 2

Definition: 2

Objective of Bail: 3

Types of Bail 3

Bond 4

Meaning: 4

Definition: 5

Types of Bonds 6

How does Bail Bodsman work: 6

Objective: 8

Difference between Bail and Bond 8

Conclusion 9

References 10

Introduction

When an arrest happens, the trial does not start immediately. Bail and bonds are related to the release of an individual from custody while they are awaiting trial for a criminal offense.

Bail refers to the amount of money that is paid to the court as a guarantee that the defendant will appear in court for all scheduled hearings and trial dates. If the defendant fails to appear in court, the bail money is forfeited, and an arrest warrant may be issued.

A bond, on the other hand, is a type of surety that is posted by a bail bond company to secure the release of the defendant. The bond is usually a percentage of the total bail amount, typically 10%. The bail bond company charges a non-refundable fee, usually around 10% of the bail amount, for its services.

Both bail and bonds serve a similar purpose in securing the release of the defendant from custody while they await trial. The main difference is that bail is paid directly to the court by the defendant or someone on their behalf, while a bond is posted by a bail bond company. Both require a monetary amount to be paid as security for the defendant’s appearance in court, and both can be forfeited if the defendant fails to appear. However, these terms are not to be used interchangeably. This article intends to bring forth the differences between bails and bonds by firstly, understanding their meaning and definitions and then their advantages. 

BAIL

Meaning of Bail:

In India, bail is defined by the Code of Criminal Procedure, 1973 (CrPC). CrPC is a comprehensive law that governs the procedures and processes of criminal trials in India, including provisions related to bail.

Under the CrPC, a person who has been arrested for a non-bailable offense can apply for bail. Bail is granted at the discretion of the court, based on factors such as the seriousness of the offense, the likelihood of the defendant fleeing, and the defendant’s criminal record.

Section 437 and 439 of the CrPC provide detailed provisions for granting of bail in non-bailable offenses. CrPC section 436 further deals with the granting of bail in bailable offences.

Additionally, the Indian Constitution guarantees this right of bail as a fundamental right under Article 21, of the  which guarantees the “right to life and personal liberty”. Further, Supreme Court of India has also issued various guidelines and rulings related to bail, which further define and clarify the principles governing bail in India.

Definition:

According to Dr. V. N. Shukla, a noted legal scholar, “Bail means a security for appearance of the accused person on the date and place notified.”

Justice Krishna Iyer, a former judge of the Supreme Court of India, has defined bail as “a mechanism to balance the interests of the individual and the society, between the law-breaker and law-enforcer, between the punitive and reformative approaches to justice.”

Dr. Upendra Baxi, a legal scholar, has described bail as “a condition of pre-trial release that may involve the deposit of a sum of money or a bond, or other forms of guarantee, or no surety at all.”

According to Prof. K. N. Chandrasekharan Pillai, a legal expert, “Bail is a process of releasing an accused person from the custody of law enforcement agencies subject to certain terms and conditions as may be imposed by the court.”

Some scholars have emphasized the constitutional dimension of bail. For example, Dr. M. P. Jain has argued that bail is an essential component of the right to life and personal liberty guaranteed by Article 21 of the Constitution of India, 1950.

Objective of Bail:

The objective of bail in India is to protect the accused person’s personal liberty while ensuring the administration of justice. Bail aims to presume the accused person’s innocence, ensure their appearance in court, protect their personal liberty, reduce jail overcrowding, and facilitate their defense. The overall goal is to balance the interests of protecting personal liberty and ensuring the accused person’s appearance in court while also ensuring the administration of justice.

Types of Bail

In India, bails of different types are granted to an accused person depending on the circumstances of their case. Here are some of the most common types of bail:

Regular bail: This is the most common type of bail, and it is granted to an accused person who is in custody and awaiting trial. Regular bail can be granted at any stage of the trial, from the time of arrest to the time of conviction.

Anticipatory bail: This type of bail is granted to a person who apprehends arrest in a non-bailable offence. Anticipatory bail can be granted by a court only if the person can show that they have reason to believe that they may be arrested for a non-bailable offence.

Interim bail: Interim bail is a temporary bail granted to an accused person who is waiting for the regular bail to be heard. This type of bail is usually granted for a short period, and the person must return to custody at the end of the period.

Transit bail: This type of bail is granted to an accused person who is being transported from one place to another for a trial or other legal proceedings. Transit bail is granted for a specific period, and the person must return to custody at the end of the period.

Default bail: Default bail is granted to an accused person who has been in custody for a specified period but has not been charged or brought to trial within that period.

Special bail: This type of bail is granted in exceptional circumstances, such as when the accused person is elderly or infirm, or when there are compelling humanitarian reasons to grant bail.

It’s important to note that the granting of bail is at the discretion of the court, and the court will consider several factors when deciding whether to grant bail, including the seriousness of the offence, the likelihood of the accused person absconding, and the likelihood of the accused person interfering with the investigation.

BOND

Meaning:

In the Indian legal context, a bond is a form of surety or security that is provided by a person who is seeking bail or release from custody. A bond is typically a written document that serves as a legal agreement between the person seeking bail (known as the “principal”) and a third-party (known as the “surety”).

The bond typically requires the surety to pay a specified amount of money to the court if the principal fails to appear for their trial or violates the conditions of their release. The purpose of the bond is to ensure that the principal shows up for their court appearances and follows the terms of their release.

There are two types of bonds in the Indian legal context:

Personal Bond: This type of bond requires the principal to promise to appear in court as required and to comply with any other conditions imposed by the court. No money or other collateral is required to secure the bond.

Surety Bond: This type of bond requires a third-party (the surety) to promise to pay a specified amount of money to the court if the principal fails to appear or violates the conditions of their release. The surety must provide collateral or a guarantee of some kind to secure the bond.

Definition:

According to Dr. V. N. Shukla, a noted legal expert, “A bond is a document executed by a person binding himself to do or abstain from doing a certain act.”

Justice Krishna Iyer, a former judge of the Supreme Court of India, has defined a bond as “an assurance given by a person to perform an obligation or fulfill a promise, backed by some form of security or guarantee.”

Dr. M.P. Jain, another legal expert, has described a bond as “a legal instrument that provides for the performance of an obligation or duty by a person, with a guarantee or surety provided by a third-party.”

According to the Code of Criminal Procedure, 1973, a bond is defined as “an instrument by which a person binds himself to do or not to do a certain act, and may include the deposit of any property or the furnishing of personal security.”

Prof. K.N. Chandrasekharan Pillai, a legal scholar, has defined a bond as “a legal agreement between two or more parties, whereby one party promises to fulfill an obligation or duty, and the other party provides security or guarantee for the same.”

Types of Bonds

Personal Bond: A personal bond is a type of bond that requires the person seeking bail to make a promise to appear in court as required and to comply with any other conditions imposed by the court. No money or other collateral is required to secure the bond.

Surety Bond: A surety bond is a type of bond that requires a third-party (the surety) to promise to pay a specified amount of money to the court if the person seeking bail fails to appear or violates the conditions of their release. The surety must provide collateral or a guarantee of some kind to secure the bond.

Cash Bond: A cash bond is a type of bond that requires the person seeking bail to deposit a specified amount of money with the court, which will be forfeited if they fail to appear or violate the conditions of their release.

Property Bond: A property bond is a type of bond that allows the person seeking bail to use their property as collateral to secure their release. The court will place a lien on the property, which will be forfeited if the person fails to appear or violates the conditions of their release.

Recognizance Bond: A recognizance bond is a type of bond that requires the person seeking bail to make a personal promise to the court to appear as required and to comply with any other conditions imposed by the court. No money or other collateral is required to secure the bond.

These are some of the most common types of bonds used in the Indian legal system. The type of bond required will depend on various factors, including the nature of the offense, the risk of flight, and the person’s criminal history.

How does Bail Bodsman work:

If the defendant signs a contract promising to appear in court, pay any applicable interests, and repay the bond in full, a bond agent (bondsmen) will assume financial responsibility for the bail. When a defendant needs to borrow money for his temporary bail from a bond agency, the agent will typically need some form of collateral from the defendant. The bail money paid by the bond agency will be refunded to them after the trial is over. (not to the defendant).

A bail bondsman is a professional who provides bail bonds to individuals who cannot afford to pay the full amount of bail set by the court. The process of how a bail bondsman works is as follows:

The accused person or their family member contacts a bail bondsman to secure a bail bond. The bondsman will require information about the accused person, the charges against them, and the amount of bail set by the court.

The bondsman will typically require collateral to secure the bond, such as a property, vehicle, or other valuable asset.

The bondsman will charge a fee for their services, typically around 10% of the total bail amount.

The bondsman will post the bail bond with the court, which means that they are guaranteeing that the accused person will appear in court for their trial or other legal proceedings.

If the accused person fails to appear in court, the bondsman may forfeit the collateral provided to secure the bond.

If the accused person appears in court as required, the bail bond is discharged, and the collateral is returned to the person who posted it.

In summary, a bail bondsman works by providing a bail bond to an accused person who cannot afford to pay the full amount of bail set by the court. They charge a fee for their services and require collateral to secure the bond. If the accused person appears in court as required, the bond is discharged, and the collateral is returned. If the accused person fails to appear, the bondsman may forfeit the collateral.

Objective:

A bondsman, also known as a surety, in India provides financial security for an accused person’s release on bail. They guarantee to the court that the accused person will appear in court and pay a bond amount as a guarantee. The bondsmen ensures the accused person’s appearance in court and has the authority to arrest them if they fail to appear. The objective of a bondsmen is to ensure the accused person’s release while also ensuring their appearance in court for legal proceedings.

Difference between Bail and Bond

S. No.BailBond
MeaningBail is the temporary release of an accused criminal while he or she awaits trial in exchange for a monetary deposit that will serve as collateral if the defendant fails to appear in court.The bondsman’s promise to pay the bail in full if the defendant fails to appear in court is what is meant by the term “bond.”
ObjectiveBail is one form of security that can be used to reassure someone.The presence of a third person in this process is indicative of a bond.
Fee paidPaid by defendant or a representative acting on his behalf.Additional bail agent or party broker, they are responsible for the payment (Bond Bondsman)
ConsiderationOnly cashBodsman takes responsibility of the liabilities.

Conclusion

The purpose of bail and bonds is to ensure that the defendant appears in court for all scheduled hearings and trial dates. It allows the defendant to be released from custody while awaiting trial, which can take months or even years. It also helps to alleviate overcrowding in jails and allows the defendant to continue with their daily life, such as going to work or caring for their family.

Bail and bonds are designed to ensure that individuals accused of a crime appear in court for trial while also preserving their presumption of innocence until proven guilty.

Bail refers to the release of a defendant from custody in exchange for a sum of money or property that is pledged as security to ensure their appearance in court. Bail is often granted to defendants who are deemed low risk of flight or danger to society, and who are able to provide sufficient guarantees that they will appear in court as required. Bail is an important concept because it allows individuals to avoid pre-trial detention, which can be a hardship on their families and can lead to the loss of employment or other negative consequences.

Bonds, on the other hand, refer to a contractual agreement between the defendant and a third-party surety, usually a bail bond company, in which the surety agrees to pay the full bail amount if the defendant fails to appear in court. Bonds are an important concept because they enable defendants who cannot afford to post bail on their own to secure their release, while also ensuring that they will appear in court by holding a third-party financially responsible for their appearance.

Overall, bail and bonds are important concepts in criminal jurisprudence as they balance the need to ensure that defendants appear in court with the presumption of innocence and the right to avoid unnecessary pre-trial detention.

References

Aishwarya Says:

Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com

Join our  Whatsapp Group for latest Job Opening

Related articles