Liberty Delayed: Analyzing Bail Injustice and Pre-Trial Detention under the Code of Criminal Procedure 1898

The Code of Criminal Procedure 1898 sets out the criminal procedure in Bangladesh from the arrest of the accused, through police detention, remand, bail, charge, proof, and defence, and finally to the conviction or acquittal of the accused by the appellate courts. Within this framework, bail serves as a crucial procedural right that determines whether the accused is to be at liberty during the major stages of the trial proceeding or confined to jail. This issue becomes especially critical when considering that the presumption of innocence creates an additional layer of consideration for the courts. Anyone who has not yet been found guilty by a court of law should not be subjected to any form of punishment unless and until their guilt has been definitively determined.^[1]

However, in actual practice, the application of the Code of Criminal Procedure often fails to reflect these objectives. The system is frequently hampered by delays, systemic poverty, inadequate funding for legal aid, overly cautious judicial assessments, and the reliance on custodial investigative techniques. Consequently, rather than preserving liberty, the bail system is often weaponized, allowing injustice to infiltrate the trial proceeding.^[2]

Philosophy and History

In Bangladesh, criminal trials are governed by the Criminal Procedure Code (CrPC) of 1898, which outlines the entire adjudication procedure from the time of arrest and investigation to the final decision and appeal.^[3] Therefore, the bail process should not be viewed in isolation from the overall justice system, but rather as a pivotal pre-trial mechanism determining whether the accused can navigate the trial free from incarceration.^[4] The CrPC clearly differentiates between two categories of offences—bailable and non-bailable—indicating that the mere act of arresting an individual was never intended as a justification for holding them in custody indefinitely during the trial process.^[5] Upon the independence of Bangladesh, this procedural structure attained further constitutional significance through the guarantee of protection against the deprivation of life and personal liberty under Articles 31, 32, and 35 of the Constitution of Bangladesh.^[6]

The principle of fairness in a trial’s structure depends heavily upon how liberty is treated at the inception of the criminal process. Since an accused will pass through arrest, detention, and bail hearings before being proven guilty, it is imperative that relief from unnecessary detention is available before a final determination of guilt or innocence is made.^[7] Therefore, the presumption of innocence must serve as the guiding principle of the trial, whereby a person accused of an offence is not treated as guilty unless condemned by virtue of a lawful conviction.^[8] William Blackstone’s legal philosophy suggests that the law should prioritize protecting the innocent from premature punishment, even if it means waiting for absolute proof of an offence; similarly, Jeremy Bentham argued that an individual should never experience suffering or punishment until being lawfully determined guilty through due process.^[9]

According to Amartya Sen’s Capability Approach, the exercise of a right—such as the right to bail—is only meaningful when people possess the actual capability to exercise it.^[10] Where a person cannot secure release from custody because they cannot afford to post bond, cannot obtain sufficient legal assistance, or must comply with overly stringent bail conditions, the presumption of innocence is rendered effectively useless. This philosophical basis creates a significant conflict: although the intent of the CrPC is to preserve liberty, the practical functioning of bail within that structure does not guarantee justice for the socio-economically disadvantaged accused.

Argument and Counterclaims

The statutory framework in Bangladesh theoretically leans heavily toward liberty. According to Section 496 of the Code of Criminal Procedure,^[11] individuals charged with bailable offences must be granted bail, implying that a mere criminal charge is an insufficient reason to detain someone. Furthermore, under Section 497, even individuals accused of non-bailable offences may be granted bail at the discretion of the court, underscoring the legal framework’s inherent bias toward liberty rather than detention. The rationale behind granting bail is to prepare the accused to face their trial by enabling them to contact legal counsel, collect evidence, locate witnesses, and participate equally in the justice process.^[12]

This statutory support for liberty has been amplified by the judiciary, which has declared that mere suspicion cannot replace rational reasoning when denying bail.^[13] For example, in the case of Md Laik alias Kayum v The State,^[14] the Appellate Division decided that simply believing a defendant might flee is an insufficient basis for denying bail without a factual foundation.^[15] Such decisions are significant because once judicial speculation is substituted for corroborated evidence, the presumption of innocence becomes a legal fiction, compromising the proper administration of justice before the trial even begins.^[16]

However, release may be granted formally while being substantively denied. In RKM Reza v The State,^[17] the High Court Division held that impossibly or unreasonably high bail amounts are tantamount to denying bail altogether. It is crucial to understand that an accused cannot secure their liberty unless they can actually comply with the court’s conditions.^[18] If a court grants bail but imposes financial conditions that the accused cannot meet due to poverty, the protection of liberty exists only on paper.^[19]

Another aspect of fairness concerns equality. In Firoj Ali v The State, the Appellate Division criticized the lack of consistency among similarly situated defendants who received vastly differing bail decisions from different courts.^[20] This highlights a critical flaw: the accused require their liberty to be granted according to consistent legal principles, not by chance. If there is no rational basis for differing decisions regarding similarly situated defendants, the bail stage ceases to protect liberty and begins to resemble a judicial lottery.^[21]

One of the most significant contradictions to this legal commitment to liberty is the institutional reality of the justice system. Research indicates that Bangladesh’s system is hampered by massive backlogs, lack of enforcement, and an overabundance of judicial caution regarding pre-trial liberty.^[22] Currently, approximately 80% of the total prison population in Bangladesh consists of pre-trial detainees rather than convicted criminals.^[23] When cases proceed slowly and the accused is detained while awaiting trial, custody becomes more than just a temporary procedural inconvenience; it morphs into a form of punishment in and of itself, carrying immense societal stigma and severe psychological impacts.^[24] This physical and psychological burden is exacerbated by severe overcrowding; while Bangladesh’s prisons have an official capacity of roughly 42,800 inmates, the actual population frequently fluctuates between 70,000 and 80,000.^[25]

Additionally, human rights reports and media coverage have highlighted ongoing patterns of arbitrary detention and the routine denial of bail, illustrating that the lived reality of the accused is far removed from the libertarian language articulated in the statutes.^[26]

The impact of these systemic failures is highly inequitable. Comparative analysis in South Asia reveals that the two primary reasons for prolonged pre-trial incarceration are the inability to pay a bail bond and the inability to secure adequate legal representation.^[27] Therefore, while the same legal system governs two individuals facing identical charges, their experiences diverge drastically based on their financial capability.^[28] It is not merely the law that disenfranchises the accused; the criminal justice system effectively criminalizes poverty through the denial of liberty.

Another prime example of the injustice of delay is found in Ashraf AH Mondal v The State, where the Court held that being in custody for an unreasonably long period before trial could justify the granting of bail.^[29] This case is of great importance because it illustrates how delay alters the moral nature of detention. While a short period of custody may be justified as a procedural necessity, prolonged detention inflicts the exact same punitive injuries that a fair trial is meant to prevent.^[30] In such situations, pre-trial detention becomes indistinguishable from a penal sentence, reducing the presumption of innocence to a hollow formality.^[31]

Further issues arise from the broader culture of custodial institutions. Rights-based commentary has repeatedly warned that broad powers of arrest, coercive investigative processes, and inadequate protective measures create severe risks for accused persons.^[32] This concern was formally recognized by the Supreme Court in the landmark case of BLAST v Bangladesh, which laid down strict guidelines regarding arrests without warrants under Section 54 of the CrPC, aiming to curb custodial torture and protect pre-trial liberty. Unfortunately, if public perception, media scrutiny, and police pressure coincide, lower courts often treat mere accusations as sufficient evidence to deny bail. When this happens, bail ceases to act as the procedural expression of innocence and instead operates as an exception to a practical presumption of guilt.^[33]

The most severe injustice inflicted through the denial of bail is the preemptive punishment of individuals who have not been proven guilty. When held in custody, the accused is stripped of the ability to work, study, earn an income, maintain their health, support their family, and protect their public reputation. These devastating losses occur long before a court of law has reached a verdict, severely crippling the accused’s ability to prepare an adequate defence and fundamentally undermining trial fairness.

Comparative Analytical Insight

Bail injustices are a regional crisis, as evidenced by comparative experiences across South Asia. While severity varies among jurisdictions, common contributing factors include crippling case backlogs, stark social inequity, and limited access to legal representation. The Bangladeshi legal system possesses a normative constitutional commitment to protecting personal liberty, but institutional failures consistently hinder the realization of these rights. Progressive legal systems impose strict limits on unnecessary confinement and do not make liberty contingent upon an individual’s ability to purchase their freedom. In Bangladesh, economically disadvantaged individuals experience disproportionate bail injustice because the ability to secure release is effectively restricted to those with wealth and social privilege. Consequently, the operation of bail under the CrPC is not always a methodology for achieving justice, but rather a mechanism that places a crushing procedural burden on the most vulnerable accused.^[34]

To mitigate bail injustice in Bangladesh, courts must determine conditions of release based on the actual socio-economic reality of the accused, rather than relying on arbitrary financial thresholds. Judicial discretion must be exercised with transparent legal justification and remain subject to robust appellate review so that decisions are rooted in constitutional principles rather than administrative expediency.^[35] Furthermore, access to adequate legal representation from the immediate onset of an arrest must be guaranteed to protect the most vulnerable from systemic disenfranchisement.

Conclusion

To protect personal liberty within the course of a criminal trial, pre-trial detention must remain a strictly limited and proportional mechanism under the Code of Criminal Procedure 1898 and the Constitution. While the legal framework formally protects accused persons, immense practical obstacles—namely systemic delay, poverty, and overly broad judicial discretion—prevent widespread access to bail in Bangladesh. Consequently, the criminal procedure frequently fails to provide equal protection under the law, imposing an excessive, punitive burden on the unconvicted accused. The concept of bail must not only be preserved in statutory text but must be actively accessible to all accused persons, regardless of their socio-economic status. Ultimately, upholding the presumption of innocence from the moment the criminal process begins is not merely a procedural formality; it is the absolute requirement of justice.