Explainer: What is “police bail” and why are some suspects released before they are charged in court?
If you ever read a news report on social media about criminal cases in Malaysia where an individual was released on police bail, more often than not, you’d come across snarky comments by netizens questioning the decision.
These comments may derive from a misconception about “police bail”, which unfortunately, is something a majority of Malaysians are not familiar with. So, what is a police bail, and how is it different from court bail?
Who can be granted a police bail and under what circumstances? Well, join us as we delve into the relevant laws on the matter below.
What is bail, and how is police bail different from court bail?
In simple terms, bail is the temporary release of an accused person on personal bond where they have to surrender themselves to the bond by appearing at the date, time and place mentioned in the bond. There are two types of bail, namely police bail and court bail.
Police bail, also referred to as “jamin mulut” in Malaysia, is granted when an investigation can’t be completed and may be given after an arrest and before being charged in Court. Moreover, police bail usually takes the form of a bond by the surety without securities being furnished.
Meanwhile, court bail is the release of a person from custody of the detaining authorities upon security given for their appearance in Court on an appointed date.
We will go further in-depth on police bail below.
Police bail
Article 5 of the Federal Constitution below prescribes the liberty of a person, with Article 5(4) establishing that an arrested person is entitled to the right to bail upon arrest if they are not produced before the Magistrate within 24 hours.
Additionally, Section 28 of the Criminal Procedure Code (CPC) below prescribes the same right to an arrested person.
Meanwhile, Section 29 of the CPC prescribes that 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.
The general law on police bail is further established by Section 387(1) of the CPC, which prescribes that when an individual is arrested or detained without warrant by a police officer, and they are prepared to give bail, that individual 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.
Moreover, Section 387(2) prescribes that the arrested individual may even be discharged on the execution of their bond without sureties for their appearance.
In other words, the aforementioned OCS or police officer not under the rank of corporal shall release the arrested person on bail or discharge them on executing a bond without sureties pending investigation. This is essentially what is meant by “police bail”.
Do note that Section 387 only applies to individuals who are accused of a bailable offence, which is less serious than non-bailable offences or unbailable offences, therefore, bail has to be offered as of right.
What are bailable, non-bailable and unbailable offences?
A bailable offence means bail has to be offered as of right. Examples of bailable offences are voluntarily causing hurt and cheating. Examples of non-bailable offences are rape, theft, infanticide and causing grievous hurt by dangerous weapons or means.
Meanwhile, non-bailable offences mean the Court has discretion to grant bail. These include offences such as rape, theft, infanticide and causing grievous hurt by dangerous weapons or means.
For penal code offences, a complete list of bailable and non-bailable offences is found in Column 5 of the First Schedule of the CPC.
As for unbailable offences, they are offences punishable with death or life imprisonment. Examples of unbailable offences include drugs trafficking under the Dangerous Drugs Act 195, murder, or kidnapping punishable under the Kidnapping Act.
Police bail can be granted for non-bailable offences
With that in mind, Section 388 of the CPC below establishes that when a person accused of committing a non-bailable offence is arrested or detained without a warrant by a police officer, they may be released on bail by an officer in charge of the police district (OCPD).
This is further established in the case of Timbalan Pendakwa Raya lwn Zainudin Bin Abd Wahab dan satu lagi [2025] MLJU 793 (FEDERAL COURT), in which the judgment reads,
“[26] It usually occurs that investigation could not be completed within the detention period granted by the magistrate under s 117 of the CPC. Section 388 of the CPC is there to assist the police. It empowers the police to release the accused person on police bail, while the investigation is still in progress. Thus, it is my respectful view that the trial judge had erred in deciding that the power of the police officer to release any person accused of a non-bailable offence under s 388(1) of the CPC is only exercisable before the accused person is produced before a magistrate under s 117 of the CPC. Section 388 of the CPC makes no such provision. Neither does such a provision under s 117 of the CPC exist. Thus, to uphold the decision of the trial judge on this issue will have the effect of defeating the intent and purpose of s 388 of the CPC.
“[27] Based on the above reasoning, it is my view that question 1 should be answered in the positive. It means that it is lawful for the police to issue a police bail under s 388(1) of the CPC against the accused person who has been released by a magistrate after a detention under s 117 of the CPC.”
However, the arrested person shall not be released if there are reasonable grounds for believing that they are guilty of an offence punishable with death or imprisonment for life, i.e. unbailable offences.
Moreover, the provision also allows the OCPD to exercise their discretion to release the person on bail at any stage of the investigation with a condition that they execute a bond without sureties to secure their attendance when required. Additionally, the Court may also, at any subsequent stage of any proceeding under the CPC, cause any person who has been released under Section 388 to be arrested and may commit them to custody.
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