The word Bail means the security of a prisoner’s appearance for trial or is the release of
an accused held in the legal custody while waiting for the trail or appeal against the decision and
it is irrelevant whether the person is in police custody or in judicial. The effect of granting bail is,
accordingly not to get the prisoner free from jail or custody, but to release him from the
custody of Law and to entrust him to the custody of his sureties who are bond to produce
him at his trial at a specified time and place. In the matter of admission to bail the Code of
Criminal Procedure makes a distinction between bailable & non-bailable offences (Ali, 2013).
Bail is a security required by the court or police for the release of an Accused person or
a prisoner who must appear in Court or police station in a future time. The security given can be
in form of cash, bond, or word from a reputable surety. In Tanzania bail can be sought and be
granted by only two institutions. One being a police and the next being by the court. (Blacks’
Law Dictionary 9th ED)
The Criminal Procedure Act gives power of granting bail to police. However, police bail can
only be obtain when the matter yet to be instituted before the Court of law.
By the Court
When the case is instituted before the court of law, police power to grant bail is curtailed. Under
this situation bail can only be sought in court. In that sense it is very clear under the Tanzania
legal position, that there are bailable offences and non-bailable offences. And bail can only be
granted on bailable offences. For bailable offences bail is a right though it is not an absolute right
because it depends on court discretion and fulfillment of bail conditions. The decision on
whether to grant or not to grant bail rests on the court. Right to bail draws its genesis from the
principle of presumption of innocence which is enshrined under Art 13 (6) of the Constitution of
the United Republic Tanzania. Mwisumo, J stated “Bail is a right and not a privilege to an
Accused person.” Therefore, under our law accused person is entitled with right to bail. From
that premise it is therefore argued that denial of bail to an accused person without legal
justification amount to infringement of constitutional right ( Bhanji,1939).
Biron, J held “a man whilst awaiting trial is as of right entitled to bail, as there is a presumption
of innocence until the contrary is proved …”4 section 148(3) of Criminal Procedure Act, gives
discretional power to the Court on whether to grant bail to an Accused Person or not. But the
power is subject to section (148)4 and 5 Criminal Procedure Act. In Tanzania bail can be sought
during trial and after trial when a person has been convicted and intends to Appeal. Bail during
trial is commonly known as bail pending trial. And bail after conviction and after appealing is
called bail pending Appeal.
On the other hand Pakistan Penal Code 1860 section 496 of Cr.PC 1898 addresses two
possibilities to release an accused on bail: one being a claim to his or her release on bail as
matter of right or as the discretion of court and if anyone claims it as a matter of right, it is
possible only in regard to a bailable offense, and if it is claimed as discretion of the court it is
non bailable offense. Sometimes bail is granted in murder case, it is an exception and will
remain exception and does not become a general rule.
A bailable offence is one in which bail is a matter of right. In Pakistan as per Pakistan Penal
Code 1860 section 496 of Cr.PC 1898, when a person accused of bailable offense is arrested or
detained without warrant by an officer in charge of police station or appear before or is brought
to the court, and he filed application to get bail than court or the in charge of the police station
can discharge him after executing a bond for his appearance.
But there is exception in this section in a sense that this section does not applies generally, so
when the offense is committed under section 107 of Pakistan penal code (offense to abet,
instigate or engage intentionally in the commission of illegal act) or under section 117 of
Pakistan penal code (offense committed by the public generally or more than 10 person to
obstruct the peace). So if these offenses are leveled then no bail will be granted.
Identified bailable offences includes,
1. Being a member of an unlawful Assembly
2. Rioting, armed with deadly weapon
3. Public servant disobeying a direction of the law with intent to cause injury to any person.
4. Wearing Garb or carrying token used by public servant with fraudulent intents.
5. Bribery in relation to elections.
6. False statement in connection with elections.
7. Refusing oath when duly required taking oath by a public servant.
8. Obstructing public Servant in discharge of his public functions.
9. Giving or fabricating false evidence in a judicial proceeding.
10. Selling any food or drink as food and drink, knowing the same to be noxious.
11. Causing a disturbance to an assembly engaged in religious worship.
Non bailable offence
A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused
will have to apply to the court, and it will be the discretion of the court to grant Bail or not. When a
person accused of a non bailable offense is arrested or is detained without warrant by an officer in
charge of a police station or appear before or brought to the court, he or she may, before prosecution
and after recording reasons in writing, be released on bail. He or she is not released if there is
reasonable ground that he has been guilty of an offense punishable with death or life imprisonment
section 497 of Cr.PC 1898. But again the court may direct:
Any person accused under the age of 16 years, or
Any woman, or
Any sick or infirm person accused of such offense be released on bail.
Again, the court may require the accused to execute a "Bail-Bond with some stringent conditions.
The court may generally refuse the Bail, if:
a. Bail Bond has not been duly executed, or
b. If the offence committed is one, which imposes punishment of death or Life imprisonment,
such as murder or rape or
c. The accused has attempted to abscond, and his credentials are doubtful.
The application for bail shall be filed before the Magistrate, who is conducting the trial. The
application after being filed is usually listed on the next day. On such day, the application will be
heard, and the police shall also present the accused in court. The magistrate may pass such
orders, as he thinks fit.
If the bail is granted, the accused will have to execute a Bail Bond.
On execution of bail-bond the accused is out of prison only on such terms and conditions, as
contained in the "Bail-Bond".
The amount of every bond, i.e. the security shall be reasonable, and no excessive (sec 440)
If, at any point of time, the terms and conditions of bail are not fulfilled, the "Bond" shall be
The application for Bail shall be made in the form, prescribed and the designation of judge
Magistrate should be clearly mentioned.
The application shall also contain an undertaking, that the accused shall fulfill all the conditions
as contained in the Bail- Bond.
Identified non bailable offences
1. Abetting mutiny or attempting to seduce a soldier, sailor or airman is stated to be non
bailable offence for which imprisonment for life or 10 years with fine.
2. In India, Waging or attempting to wage war or abetting the waging of war against the
government of India that follows imprisonment for life or imprisonment up to 10 years
along with fine.
3. Sedition which is abided to the imprisonment for three years and fine or fine only.
4. Absconding to avoid service of summons which is strictly to imprisonment for one month or
5. Counterfeiting of government stamp which is lawfully supported for three years
imprisonment with fine
6. Punishment for murder which is a punishable offence to ten years imprisonment with fine
7. Husband or relative of husband of a woman subjecting her to cruelty follows punishment of
three years in prison and fine.
Conclusively, it has been a matter of debate in Tanzania on whether Bail is a matter of right of
privilege. Different legal scholars have argued either ways. It is not directly provided as “right to
bail” but article 13(6) of the Constitution of United Republic of Tanzania embraces the right to
bail. This article provide for presumption of innocence, that a person is innocent until proven
otherwise by the Court. And the essence of detaining a person is to secure and assure his
presence when needed in court or by police.
Since the constitution presume innocence of every accused person, then became a matter of right
as long as the sureties guarantee to procure the Accused whenever needed. This has not been the
case in practice, as some provision of the Criminal Procedure Act seems to go against provisions
of the constitution. Section 148(5) (a) of Criminal Procedure Act contravene the constitution by
denying bail to some offences. This is to judge the accuser’s innocence before the court finds
him/her guilty of the offence. On the strength of the Constitution and above referred cases it is
clear bail is a right, though it is not an absolute right depending on the nature of the offence.
Ali, E. (2013).Bail in bailable offences: chapter-iv right to bail in bailable offence under section
Bhanji, R.(1939). Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939
Blacks’ Law Dictionary 9th ED
Criminal Procedure Act Cap 20 R.E 2002 section
R vs. Nicholas Alfred Kiyabo  TLR 39