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This article is written by Akshaya Chintala from Symbiosis Law School, Hyderabad. The article analyses the bail bonds agent plans in India and the importance of the act to be implemented in India.

Introduction

A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom. When someone is charged and booked for a serious crime, they have to wait for a bail hearing. During the hearing, the judge must weigh the charges and circumstances before determining the size of the bond. If the defendant is unable to pay the bail fee, they may either remain in jail until their court date or employ a bail bond agent. The bail bond attorney will charge a percentage of the bail amount as a non-refundable fee and then give bail to the defendant when the bail bond paperwork is done.

The following article deals with the whole process of Bail Bonds and the Role of Bail bond agents with some advantages and disadvantages of this facility provided to the suspects. A remarkable case law issued under the topic of Bail bonds was of Hussainara Khatoon V. State of Bihar, 1979 Where it has been shown that the transgression of justice which might poorly accused little Indian or forced into longer cellular servitude for small offenses because their bail proceedings go beyond their meager means and trials do not begin and even if they never conclude. The Apex court has suggested that instead of money factors, other factors such as family ties, roots in the community, job security, membership for stable organizations etc should determine the grant of bail and in appropriate cases, the accused be released on his personal bond without monetary obligations.

Bail bond

A security is used to get the defendant released of who was been required to be granted bail, basically bail is a financial arrangement that a bail bonding agency will make on behalf of a criminal defendant. It is usually a contract in which the prisoner and one or more protection promises that the sum charged by the court will be set that the prisoner must attend the hearing of the charges against him if he is released on bail. The charge for the bail bond shall also be agreed by the judges of the court that it may be only 10%-20% payable at the time of the bail or that the full amount of the bond may be required by the court. Bail depends on the following factors- 

  1. By assessing the severity of the crime in terms of harm to others. 
  2. Suspected criminal history. 
  3. The danger that the release of offenders could present to the community. 
  4. Suspected community links, family relations, and jobs. 

The whole concept of bail originated in ancient times during the medieval era of British rule over India, where prisoners were bailed out on the promise of the third party who took responsibility for ensuring their appearance in the court If the accused did not appear, his bailiff would face trial in his place. The main objective behind this is also to presume innocence until the accused is found guilty. The arrest and imprisonment of the convicted person are solely intended to guarantee his or her presence at the time of the trial and to ensure that he or she is found guilty of which he or she is eligible to obtain a sentence. Ensure that the accused appears at the trial, so that the accused is released and shielded from excessive detention. The Bail Bond is granted only when it includes similar terms and conditions, such as the accused shall not leave the territorial jurisdiction of the State without the permission of the court or the police officer. The accused shall make his presence known to the police officer any time he is asked to do so. The perpetrator should not tamper with any evidence found by the police in the investigation. Under this concept of Bail Bonds, there exist two types of bail bonds which are- 

  1. Security Bond: A security bond views it as a payment bond or a value bond depending on the financial status of the underlying company being secured to it.
  2. Personal Bond: A conditional guarantee promising that the convicted suspect must appear on all court days, the prisoner will not have to comply but fulfills the value of the guarantee if the commitment to appear is violated, the prisoner will not have to comply but will fulfill the value of the guarantee. It is also known as a release if the pledge to appear is violated. It is also known as a release or accept bond, where there is no need to pay any fee for the bail.

This also doesn’t indicate that all types of offences committed will be provided for Bail through these bail bond agents. The court is allowed to deny bail to an arrested person even though the charge is bailable if the bail applicant fails to fulfill the bail bond requirements. Offences under Section 2(a) of the Code of Criminal Procedure are classified into two simple categories namely: 

  1. Bailable offences : Bailable offence means an offence which is shown as bailable in the First Schedule or which is made Bailable by any other law for the time being in force. They are regarded as less grave and serious and hence, in such offences a bail is considered as a matter of Right. Some examples of these Offences are- refusal of an oath when properly required to take the oath of a public servant, obstructing a public servant in the execution of his public duties, giving or fabricating false proof in a judicial proceeding, cause disruption to a church engaged in religious worship. 
  2. Non- Bailable Offences: Non-compensation offenses are serious offenses where bail is a privilege and can only be granted by the courts. If a person is arrested and taken into custody for a serious or unwarranted crime, he or she can not ask to be released on bail as a matter of law. In general, the court may refuse the bail if: “Bail Bond” has not been duly executed, or if the offense committed is one that imposes a death penalty or lifeimprisonment such as Murder or Rape, or if the accused has attempted to abscond and his credentials are doubtful. 

The application for bail shall be filed before the Magistrate with the assistance of a criminal lawyer who is conducting the proceedings. Usually, the application after being filed is listed on the next day. The application will be heard on that day and the police will also present the accused to the court. The magistrate may, as he thinks fit, pass such orders.

Bail bond agents

The bail bondsman that is commonly portrayed in the media is the bail bondsman. This type of bondman is licensed by the authority to issue bail bonds to defendants who are accused of one of a wide range of crimes, ranging from driving quotes to capital killings. Like other financial professionals providing loans or bonds, bail bondsmen work to determine whether a potential client should issue a bond. The most common way to earn a bail bond is to provide some kind of security, such as real estate or valuable property or to have a cosigner who guarantees that the defendant will appear on their court date. Although the agent spends much of his time exploring new clients, meeting with the defendants and completing the paperwork, he must also maintain regular communication with the agency. Agencies often call agents when a new prospect is identified. Time is often the essence, as the defendants usually want bail as soon as possible after the amount has been set. Agents must also submit paperwork and sales receipts to the agency office within a certain period of time, often 24 hours, to retain employment and collect commission payments. 

Role of Bail bond agents

The role of a bail bond agent, that many people are most familiar with, is client apprehension. This is a function often shown in movies and on TV shows. If the defendant fails to appear before the court, he usually owes bail. The bond is intended to ensure its appearance. When an agent client does not appear, it is generally expected that he will track down, apprehend and jail the suspect or bring him before the court. This protects the agent’s financial interests. Many defendants lack the financial means to make their own bail and that is when these bail bonds agents come handy. In order to secure release, a commercial bond agent may be hired to act as a bond security agent. The agent shall give bail after collecting a non-refundable fee from the defendant or the family or friends. Assuming that the defendant has no money to give the agent as security, the agent will obtain other collateral, such as jewelry, securities, etc. and in return, the bail bond agent agrees to pay the remaining amount to the court if the defendant fails to appear. 

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Advantages

It’s easy to see the negatives when you’re involved in the bail bond process, whether you’re the one who needs to get out of jail or you’re the one who’s helping a loved one out. It’s a terrible situation that nobody wants to be in, so it’s pretty hard to see the light of the situation. A few advantages of issuing bail bonds are that most bail bond companies are open on a daily basis, in fact, on a 24-hour basis. As such, one can obtain bail bonds at any time they need them. With bail bonds, only 10% of the bail amount needs to be paid. The rest is going to be the job of bail bondsman to sort out. 

Most of the agents that run bail bond companies are professionals in court cases, prosecution, and bail and bond issues. As such, you will benefit from their vast experience and knowledge. You can pay bail bonds with some kind of payment plan and thus, ease your financial burden when you’ve been arrested. You pay only 10% of the full bail amount, leaving you with 90 percent to save or spend as much as you need. You can pay your small bail bond installments with cash, credit or debit and checks. A secure online payment portal is also available. There is no need to worry about going to the courthouse with a large amount of bail money. You will be assigned a professional and helpful bail agent. They’ll give you advice throughout the entire process and you’ll know exactly what’s going on. Like a lawyer, they want you to get the best result.

Disadvantages

The bail bond system is considered discriminatory by many, even in the legal profession, as it requires low-income defendants to stay in jail or scrap a 10% cash fee and the rest of the bail-in collateral even before they stand trial for any crime. According to a report conducted by prison policy organizations, about 536,000 people are being held in jail because they can’t afford bail or bail bondsman services. At the end of the process, you won’t get the bail bond money. The bondman accepts the 10% premiums as their fees. You can only take advantage of the bail bond company in the state where it is licensed. You may not benefit from this if you are not located within their jurisdiction.

Conclusion

In my opinion, whilst granting bail may also consider the socio-economic factors of the accused flight of the accused may also be taken into account and compassionate attitude towards them, the court may take into account certain conditions prior to granting bail which are the nature of the offense committed by the accused, which are considering, the nature of the offense charged and the apparent likelihood of conviction. It may also include any other factor indicating the relationship of the accused shall be the community or barring the risk of intentional failure to appear, the character and former criminal record of the defendant shall be the determination of the amount of bail in the present case. At the time of bail, the person does not have the right to live outside the jurisdiction of the court, he/she does not have the power to go abroad and in other states without the permission of the court, because you have to appear at the court and police station at any time and you have to pay a fixed deposit in court.

References

  • https://criminal.findlaw.com/criminal-procedure/bail-bond-agents.html
  • https://www.moneycrashers.com/jail-bail-bonds-types-money/
  • https://www.bountyhunteredu.org/what-is-a-bail-bondsman/
  • https://www.justia.com/criminal/bail-bonds/bail-bond-agents-and-bounty-hunters/ 
  • https://ocbailnow.com/advantages-and-benefits-to-using-bail-bonds/

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