Short answer. The judge has discretion between the two, but not for a capital charge. Rule 102, Section 14 bars release, discharge, or bail if lawfully committed on a charge punishable by death; for a lesser charge, the judge may recommit him to imprisonment or admit him to bail on a reasonable bond.
What the law says
If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge.
Rule 102, Section 14 — When person lawfully imprisoned recommitted, and when let to bail. Read the full provision →
The absolute bar for capital charges
If the prisoner was lawfully committed and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed — no discretion applies here at all. The judge cannot weigh the circumstances or offer a bond in this situation; the bar is categorical, reflecting how seriously the law treats a person charged with the gravest class of offense, regardless of how the habeas hearing otherwise unfolds.
Discretion for other lawful commitments
For any other lawful imprisonment or restraint, on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge — the judge genuinely chooses between the two options. Neither outcome is automatic; the court weighs the prisoner's situation and decides whether continued confinement or release on bail better serves the case, and that choice belongs to the judge alone, not to the prisoner or the detaining officer.
Conditions attached to bail
If admitted to bail, he must forthwith file a bond in a sum the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable. Setting the amount is itself a judgment call, not a fixed tariff: a judge weighs the seriousness of the charge against the prisoner's own means and ties, since a bond set too low invites flight while one set too high defeats the point of granting bail at all.
What happens with the bond
The court or judge must then certify the proceedings, together with the bond, forthwith to the proper court; if no bond is filed, the prisoner is recommitted to confinement — bail here is a discretionary option, not something that follows automatically from a finding of lawful commitment. That certification transfers the matter to the court where the underlying offense is properly triable, so the habeas court's role ends once the bond and proceedings are forwarded, leaving the original case to run its ordinary course from there.
Related provisions
- Rule 102, Section 14 — When person lawfully imprisoned recommitted, and when let to bail
- Rule 102, Section 13 — When the return evidence, and when only a plea
- Rule 102, Section 15 — When prisoner discharged if no appeal