A person who has been arrested is entitled to the right to bail upon arrest if he is not produced before the magistrate within 24 hours as stipulated in Article 5(4) of the Federal Constitution and section 28 of the Criminal Procedure Code (CPC). The latter is the general law on criminal procedure.

The provision which entitles him to that right is found in sections 29, 387 and 388 CPC.

Under section 29, an arrested person shall only be released on his own bond or on bail or under the order in writing of a magistrate or of a police officer not below the rank of inspector.

Under section 387, when a person is arrested or detained without warrant by a police officer, and he is prepared to give bail, that person shall be released on bail by the police officer in charge of a police station (OCS) or by any police officer not under the rank of Corporal. The person may even be discharged on his executing a bond without sureties for his appearance.

Section 387 applies to bailable offences, which are of less serious nature and bail has to be offered as of right.

Hence the OCS or corporal above shall release the arrested person on bail or discharge him on executing a bond without sureties pending investigation.

This is sometimes referred to as ‘police bail’. It is also called bail pending investigation.

Under section 388, when a person accused of committing a non-bailable offence is arrested or detained without warrant by a police officer, he may be released on bail by the officer in charge of the police district (OCPD), but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

Even if it appears to the OCPD that there are not reasonable grounds for believing that the person has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the person shall, pending such inquiry, be released on bail or, at the discretion of the OCPD, on the execution by him of a bond without sureties for his appearance.

Section 388 clearly applies to non-bailable offences, which are of more serious in nature and bail is discretionary.

Hence, an OCPD shall release an arrested person for a non-bailable offence on bail pending investigation, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

The OCPD is also allowed to exercise his discretion to release the person on bail at any stage of the investigation with a condition that he execute a bond without sureties to secure his attendance when required.

This is subject to the condition that there are not reasonable grounds for believing that he has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt by the court.

Thus, pending such inquiry the arrested person shall be released on bail pending investigation.

The above shows the delicate balance that the law seeks to do or strike between the right of an arrested person, who is presumed innocent under he is proven guilty, and the right of the state, which represents the public.

It is about putting, what jurists say, the human face on the law. – March 1, 2023. 

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.