Bail is money or some form of property that is deposited or pledged to a court in order to persuade it to release suspect from custody or jail, with the understanding that the suspect will return for trial and required court appearances. In most cases, bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. Bail proceeding starts after the registration of the charge sheet which is immediately followed by the act of recording the suspect’s deposition. Bailment can be bonds, securities and equitable money
Depending on the nature of gravity of offence and their impaction society and the harmfulness to victim, offences have generally been classified as Bailable or Non-Bailable and Cognizable or Non Cognizable as per their seventy and punishment prescribed for them.
Bailable Offence
An offense in which the accused is entitled to bail as a matter of legal right upon arrest or detention.
Non-Bailable Offence
An offense in which bail is not a right and can be granted only at the discretion of the court.
Comparative Analysis:
| Criteria | Bailable Offence | Non-Bailable Offence |
| Nature of Crime | Less serious, non-violent, and not against the state | Serious, violent, or heinous crimes, often against the state |
| Authority to Grant Bail | Investigating officer or court | Only court (even during investigation) |
| Risk Factors Considered | Not heavily considered | Court assesses flight risk, influence on witnesses, etc. |
| Court Discretion | Very limited, as it’s a right | Wide discretion based on facts and circumstances |
| Examples | Simple theft – Defamation – Public nuisance | Murder – Rape – Human trafficking – Kidnapping |
Legal Provisions on Bail in Nepal
Under the National Criminal Procedure Code and Regulation Relating to the Investigation of Offences, 2075, a person held in custody during investigation may be released on bail or surety in the following circumstances:
Release of a Person in Custody by Investigating Officer:
(1) If, during the course of investigation under Sub-Section (1) of Section 15 of the Code, it is found that it is not necessary or appropriate to keep a person in custody, or if there is no immediate objective evidence against the person, or if it is appropriate to release the person on bail, bond, or under the responsibility of a reliable person, the investigating officer shall prepare a written opinion or decision in the format prescribed in Schedule-9, and forward the related case documents to the concerned Government Attorney’s Office for approval.
(2) Upon studying the file received under Sub-rule (1), if it is found unnecessary to keep the person in custody, the concerned Government Attorney shall give consent to release the person from custody.
(3) If, upon reviewing the file received under Sub-rule (1), the Government Attorney finds it inappropriate to release the person considering the seriousness of the offense and the collected evidence, the attorney may refuse consent by stating the reasons.
(4) If it is not possible to immediately send the file to the concerned Government Attorney’s Office for consent as per Sub-rule (1), the investigating officer may prepare a note stating the reason and may release the person on bail, bond, or under personal recognizance or summon them for future appearance, without obtaining the consent of the Government Attorney.
(5) If a decision is made to release the person on bail, bond, or recognizance, or to place them on summons without the Government Attorney’s consent as per Sub-rule (4), the investigating officer shall immediately inform the Government Attorney’s Office of such decision.
Procedure for Release on Bail, Bond, Recognizance, or Summons:
(1) When an investigating officer releases a person in custody during investigation under Section 15(1) of the Code and Rule 20 of Regulation Relating to the Investigation of Offences, 2075, the officer must determine the conditions and take cash or bank guarantee accordingly. If the person cannot provide cash or bank guarantee, property bail evaluated by the concerned Land Revenue Office must be accepted. The bank guarantee must be of unlimited duration.
(2) In such circumstances under Section 15(1) of the Code, the investigating officer must determine the amount of bail or guarantee by evaluating the following:
- (a) Nature and seriousness of the offence,
- (b) Economic and family condition of the accused or offender,
- (c) Age and physical condition of the accused or offender,
- (d) Prior conviction or sentence of the accused,
- (e) Whether multiple offenses were committed in a single incident,
- (f) Potential punishment and compensation liabilities,
- (g) Harm caused to the victim,
- (h) Consequences of the offense,
- (i) Whether the offence involved minors,
- (j) Whether the accused is helpless, disabled, pregnant, or has a breastfeeding child.
(3) When accepting cash, bond, or bank guarantee under this rule, the required documents must be prepared in the format of Schedule-10.
(4) If the accused provides the cash amount under Sub-rule (1), the concerned office shall deposit it into the bail account and include the receipt in the case file. If the court, during remand proceedings, accepts the same bail amount determined by the investigating officer, any excess bail amount must be immediately refunded to the person by the investigating officer.
(5) If a person released on bail, bond, or bank guarantee fails to appear when summoned during the investigation, the bail or guarantee amount shall be forfeited.
However, if the person fails to appear due to uncontrollable circumstances and submits a request within the statute of limitation for filing the case, explaining the reason either at once or in no more than two attempts and if such explanation is deemed reasonable, the amount shall not be forfeited even if the person fails to appear for up to 15 days.
(6) If a person does not provide cash, bank guarantee, or property bail, the investigating officer shall keep the person in custody.
(7) A person held in custody may be released on cash, bank guarantee, property bail, or recognizance under this rule. The investigating officer may then place the person under summons and require them to appear when necessary during the investigation.
(8) Any fine collected from a person providing recognizance under Section 15(4) of the Code shall be deposited in the Government Treasury.
Authority of Investigating Officer to Release a Person from Custody:
(1) Under Act, if it is not necessary or appropriate to continue keeping a person in custody during the course of investigation, the investigating officer may, with the consent of the Government Attorney, or if obtaining consent is not immediately possible, by recording the reason in writing, release the person on bail, bond, recognizance, or place them under summons.
(2) When a person is released on bail, bond, or recognizance, or placed under summons under Sub-section (1), and if the person is to be prosecuted, the officer must obtain a written agreement from the person to appear when required.
(3) The person providing recognizance must ensure that the released individual appears before the investigating officer or Government Attorney’s Office at the designated time.
(4) If the person does not appear as required under Sub-section (3), the person providing the recognizance may be fined up to NPR 5000 by the investigating officer.
(5) When an investigation is conducted by placing the person under summons, the investigating officer must inform both the Government Attorney’s Office and the higher police office accordingly.
Bail /bond, guarantee or bank guarantee to be taken from the accused:
(1) Except in the case referred to in Section 67 of National Criminal Procedure Code 2074 the court may ask for a bail/bond, guarantee or bank guarantee from the accused if there exists a reasonable ground for proving the charge against the accused. Provided that the bank guarantee shall be unconditional and renewable at such times as may be specified by the court.
(2) The court shall remand in detention any accused who fails to furnish bail/bond, guarantee or bank guarantee pursuant to sub-section (1).
To remand on recognizance:
The case shall be tried by remanding the accused on recognizance to appear on appointed days when the accused appears in the court, in any case other than that referred to in Sections 67 and 68.
Grounds for fixation of amount of bail/bond, guarantee or bank guarantee:
(1) The amount of a bail/bond, guarantee or bank guarantee to be taken pursuant to this Chapter shall be fixed reasonably, having regard to the following matters:
(a) Nature and gravity of the offence,
(b) Financial status and family condition of the accused or the offender
(c) Age and physical condition of the accused or the offender,
(d) Whether he or she was previously convicted of any offence and sentenced for the same or not,
(e) Whether he or she has committed several offences on the same occasion or not,
(f) Sentence imposed or imposable on him or her, and compensation to be borne by him or her,
(g) Consequences resulted from the offence,
(h) Whether he or she has pleaded guilty of the offence or not,
(i) Where the accused is a helpless or infirm person or pregnant woman or woman accompanying a baby whom she breast feeds.
(2) If any party to a case makes a petition to the appeal hearing court showing the reason that the amount of a bail/bond, guarantee or bank guarantee demanded from any person under this Act is lesser or excessive and is not thus reasonable, such court may hear the matter and order the alteration or modification in the amount of such bail/bond, guarantee or bank guarantee.
Types of Bail in Nepal
1. Cash Bail (नगद धरौटी)
- The accused is required to deposit a specific amount of money as security.
- If they appear in court as required, the money is refunded.
- Common in economic, corruption, and foreign employment-related cases.
2. Bond or Guarantee Bail (धरौटी वन्धन / जमानतपत्र)
- A person (surety) assures the court that the accused will attend all proceedings.
- If the accused fails to appear, the guarantor must pay the specified amount.
3. Personal Recognizance (व्यक्तिगत जमानत)
- The accused is released based on a promise to return, with no cash or bond.
- Usually applicable for minor or non-violent offenses.
- Used when the person is not a flight risk and has a good legal record.
4. Conditional Bail (सर्तसहित धरौटी)
- Bail is granted under specific conditions imposed by the court, such as:
- Restriction on travel
- Regular police check-ins
- Prohibition from contacting witnesses
Legal Framework on Bail in India
India’s legal provisions on bail are governed primarily by the Code of Criminal Procedure, 1973 (CrPC). Bail in India is categorized into the following major types:
1.Regular Bail (Sections 436 and 437 of CrPC):
Regular bail is granted to a person after arrest and custody. Section 436 provides that bail is a right in bailable offenses, and the police or court must grant bail upon furnishing a bond. Section 437 deals with non-bailable offenses, where bail is discretionary and depends on factors like seriousness of offense, past criminal history, and likelihood of tampering with evidence.
2. Anticipatory Bail (Section 438 CrPC):
A person apprehending arrest in a non-bailable offense can apply for anticipatory bail. If granted by the Sessions Court or High Court, the person cannot be arrested unless conditions of the bail are violated. This provision reflects a preventive remedy to protect an individual from unnecessary or malicious arrest.
3. Interim and Default Bail:
Interim bail is temporary bail granted while the application for regular or anticipatory bail is pending. Default bail (Section 167(2) CrPC) becomes a statutory right when the investigating agency fails to file a charge sheet within 60 or 90 days (depending on the nature of the offense).
Indian courts follow the doctrine: “Bail is the rule, jail is the exception” meaning an accused is presumed innocent until proven guilty and should not be unnecessarily incarcerated during trial.
Comparative Analysis:
| Aspect | Nepal | India |
| Bail Authority | Investigating Officer (with consent of District Attorney) or Court | Magistrate, Sessions Court, High Court |
| Types of Bail | Personal recognizance, cash bail , surety | Regular, Anticipatory, Interim, Default |
| Forfeiture | Yes, if person fails to appear without valid reason | Yes, but mostly enforced by court after hearing |
| Statutory Time Limits | No default bail provision; governed by investigation period rules | Bail becomes right if charge-sheet not filed in 60/90 days |
| Bail in Cognizable Offenses | Discretionary by officer or court | Discretionary by court only |
Conclusion
The bail system in Nepal serves as a vital mechanism to balance individual liberty with the needs of justice and public safety. By allowing temporary release of accused persons under specified conditions, it ensures that detention is not used arbitrarily or unnecessarily during investigation and trial. The legal provisions outline clear procedures, types of bail, and criteria for granting bail, reflecting a commitment to fairness and due process. Proper application of bail safeguards the rights of the accused while maintaining accountability, ultimately strengthening the integrity of Nepal’s criminal justice system.