JULY 22 — In the Supreme Court case PP v Dato’ Mat Safuan [1991], the accused was charged under Section 409 of the Penal Code, a non-bailable offence. The case presented an occasion for the apex court to explain the law on bail.
Justice Wan Yahya, who delivered the judgment of the apex court, said as follows:
“The law relating to bail is set out in Chapter XXXV of the Criminal Procedure Code. Section 387 sets out the right of an accused or arrested person to bail in bailable offence. Section 388 provides for the circumstances where a police officer or the Court may exercise its discretion to release on bail any person accused of a non bailable offence.
“Both sections do not have any specific provision for the imposition of conditions. However, Indian authorities seem to favour the view that when discretion is given to the Court to refuse or grant bail, that discretion in itself implies a discretion to grant bail subject to certain conditions.
“But, when there is no discretion to refuse bail, the question of imposing conditions does not arise – Rex v Genda Singh & Ors [1950] All ER 525. [Accordingly], conditions can be included in a bail bond issued pursuant to [Section] 388 but not to [Section] 387 as the latter section gives no discretion to the... Court to withhold bail when the [accused] is prepared to provide such bail.”
Where an accused is charged with a bailable offence, he is entitled to be released on bail as of right. Once the accused is prepared to give bail, the court has no discretion to refuse bail.
Thus, it follows that where there is no discretion to refuse bail, there is no power to impose conditions in the order granting bail.
Clearly, conditions cannot be imposed on an order for bail granted under Section 387 of the Criminal Procedure Code.
In the report “Tamim Dahri pleads not guilty to charge of damaging sacred Hindu object”, the accused pleaded not guilty in the Magistrate’s Court on Tuesday (July 21).
The charge was framed under Section 295 of the Penal Code, a bailable offence.
Yet the learned deputy public prosecutor urged the court not to grant bail, arguing that the accused posed a high flight risk.
The accused lawyer rightly informed the court that the offence under Section 295 of the Penal Code is bailable.
The court subsequently granted bail of RM10,000 with two sureties and also ordered the accused to surrender his passport to the court and report to the nearest police station every two weeks.
Where there is no discretion to refuse bail – the offence being bailable – there is no power to impose conditions in the order granting bail
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
