An Inquiry to Identify the Jurisprudential-Legal Nature of Orders of release on own recognizance Through a Critical Review of the Existing Doctrines

One of the interlocutory orders is the criminal bail writ with various types specified in Article 217 of the Criminal Procedure Code. According to paragraphs A to G of this article, the investigating judge shall make an agreement with the accused, obliging him/her to attend in or not to leave the designated place or to appear there periodically. Restricting an accused person who has not yet been proved guilty is against the Principle of Innocence, Lack of Guardianship Principle (the principle that no person has any naturally-vested power over any other person) and the Rule of Domination. Any violation of the mentioned principles requires a permit with special jurisprudential-legal titles, and their occurrence through orders for own recognizance (OR) release necessitates identifying their nature. To interpret the nature of these orders, theorists have put forward various doctrines such as indefinite contract, judicial action and non-contractual obligation. The existence of ambiguities in these doctrines led to the emergence of new possibilities such as declaration of damages, and compromise. The result of this desk-based descriptive-analytical study indicates that the orders for OR release are, by nature, the guardianship ordinance considering the hierarchy in the appointment of officials, and the penalty clause for them is ta'ziri (at the discretion of the judge), imposed by the Islamic ruler on the accused person who violates the ordinance.