Bond? What Bond?

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Bond? What Bond?

May 31, 2020 Litigation Advisory & Strategy 0

Generally, and depending on the circumstances, a person who is accused of committing a  crime (also known as “the accused”) can be released on bail pending the hearing of their case. However, if the accused is released on bail, how can the court ensure that they show up in court on the day of trial? This is where the concept of “bond” comes into play.

What is a bond?

Like any other contractual agreement, a bond binds the person who executes it. In this regard

  1. It is an agreement entered into between the court and the accused person/ his sureties (usually the sureties);
  2. Open entering a bond, the accused is allowed to be released from police detention on bail, on the condition that:
    1. A sum of money (bail bond) is deposited in lieu of the execution of the bond; 
    2. The accused/ his sureties adhere to the condition imposed in the bond (for example, to show up in court as an when required by the court); and
    3. In the event the bond is breached, the accused/ his sureties will have their bail bond forfeited, and they would also incur a further monetary penalty.

Why?

This is to ensure that the accused will adhere to the conditions laid down in the bond i.e. attends court as and when required by the court, or assuming the accused sureties entered the bond on behalf of the accused, they will do their utmost best ensure that the accused attends court as and when required by the court- basically, it is to ensure that the accused does not run off, never to be found again and to ensure that person who vouches for him does not aid in his escape.

The legal principles governing bond

Is there a fixed bail bond amount?

No, section 389 of the Code merely states the court must give “due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested, but shall not be excessive”.

What happens if a person breaches the bond?

  1. The court will ask the accused/ his sureties to show cause i.e. give reason why the bond should not be forfeited; 
  2. If there is no good reason for the breach,  the bail bond will be forfeited by the court
  3. On top of that, if the bail bond will be forfeited;
  • The accused/ his sureties has to pay a sum as a penalty that was set out in the conditions of the bond;
  • The court can order a warrant for the attachment/ sale/ distress of the property that belongs to the accused/ sureties (assuming if the penalty is not paid up by the accused/ his sureties);
  • The accused/ his sureties can be imprisoned up to six months in jail (if the amount cannot be recovered).

Can the accused/ his sureties pay the penalty via installment?

No. It must be paid in full.

What is the procedure in a show-cause scenario?

  1. The prosecutors must first prove that the accused/ his sureties executed the bail bond;
  2. The prosecutors must then produce witnesses by calling the individual who granted the bail bond to testify;
  3. The accused/ his sureties will then cross-examine the witnesses; and
  4. The accused/ his sureties will be allowed to give evidence and call witnesses to explain to the court why the bail bond should not be forfeited.

What is a good excuse/ reason? 

It all depends on the circumstances of each case, for example:

  1. The accused/ his sureties were not notified by the court that the venue for hearing has been changed;
  2. The sureties has taken various active steps to procure the attendance of the accused in court

There were extenuating circumstances in favor of the accused/ his sureties.

 

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