Nishant Verma, AOR.
The Oxford Dictionary defines ‘surety’ as “a person who takes responsibility for another’s obligation”. Advanced Law Lexicon by P. Ramanatha Aiyar defines ‘surety’ to mean “the bail that is undertaken for another man in a criminal case”.
Section 485 of BNSS (earlier Section 441 of the CrPC) which deals with bonds and sureties, reads as under:
“485. Bond of accused and sureties. – (1)Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.”
Stage at which bail bond is furnished:
Section 485 of BNSS speaks about the stage when a bail bond is furnished. Bail bond is furnished before Court or Police when the accused is arrested and before he is released on his own bond or by the police officer or by the court.
Section 490 of BNSS (earlier 445 of CrPC) speaks about deposit instead of recognizance– It provides for the concession to an accused person who is unable to produce sureties. This section permits payment of cash or Government promissory notes in substitution of passing a bond except where the bond is one for good behavior.
Form 47 of 2nd Schedule of BNSS speaks about the form to be filled up / furnished before the Officer in Charge of Police Station or Court. It also speaks about the contents of bail bond.
Amount of Bond not to be excessive:
In the case Guddan @ Roop Narayan vs. State of Rajasthan (Criminal Appeal No. 120 of 2023 @ SLP (Criminal) No. 9756 of 2022), the Supreme court held that:
“15. While bail has been granted to the Appellant, the excessive conditions imposed have, in-fact, in practical manifestation, acted as a refusal to the grant of bail. If the Appellant had paid the required amount, it would have been a different matter. However, the fact that the Appellant was not able to pay the amount, and in default thereof is still languishing in jail, is sufficient indication that he was not able to make up the amount.
16. As has been stated in the Sandeep Jain case (supra), the conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. In the present case, however, the excessive conditions herein have precisely become that, an antithesis to the grant of bail.”
In Re: Policy Strategy for Grant of Bail (SMWP (Criminal) No. 4/2021), the Court issued the following directions:
“With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications:
(1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].
(2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.
(3) NIC would make attempts to create necessary fields in the e prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.
(4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socioeconomic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.
(5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.
(6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may Suo moto take up the case and consider whether the conditions of bail require modification/ relaxation. (7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.”
In Satender Kumar Antil vs. Central Bureau of Investigation and another, reported at (2022) 10 SCC 51, it has been held that:
“Under Section 440 ( 484 of BNSS ) the amount of every bond executed under Chapter XXXIII is to be fixed with regard to the circumstances of the case and shall not be excessive. This is a salutary provision which has to be kept in mind. The conditions imposed shall not be mechanical and uniform in all cases. It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible to comply with would be defeating the very object of the release. In this connection, we would only say that Sections 436( 478 of BNSS ) , 437( 480 of BNSS ) , 438( 482 of BNSS ) and 439( 483 of BNSS ) of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code( sec 91 of BNSS ) also the said factum has to be kept in mind.”.
Legal remedy when FIR has been lodged in multiple states and the accused fails difficulty to furnish bail bond and surety in Courts of different jurisdictions:
A writ petition( criminal) under Article 32 can be filed in the Supreme Court when FIR has been lodged in the Police State of various districts across India under different provisions of BNS for seeking an appropriate Writ or Direction to the effect that the personal bonds and sureties executed by the petitioner mentioning details of FIR No., date, P.S & District shall hold good for all other bail orders passed in his favor from the Courts of different States.
In Girish Gandhi vs. State of Uttar Pradesh (2024 INSC 617), the Supreme Court held –
“…22. Whether it is to get individuals, to stand as a guarantor for a loan transaction or as a Surety in a criminal proceeding, the choice for a person is very limited. It will very often be a close relative or a longtime friend. In a criminal proceeding, the circle may get even more narrowed as the normal tendency is to not disclose about the said criminal proceeding to relatives and friends, to protect one’s reputation. These are hard realities of life in our country and as a court of law we cannot shut our eyes to them. A solution, however, has to be found strictly within the framework of the law.
..23. From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case.”
Supreme Court in Hani Nishad @ Mohammad Imran @ Vikky vs. The State of Uttar Pradesh, SLP (Criminal) Nos. 8914-8915 of 2018 has made the following order in a situation where the petitioner was faced with 31 cases:
“Considering the submissions, the impugned order is modified to the extent that the petitioner shall execute a personal bond for Rs. 30,000/- (Rupees Thirty thousand only) and the same bond shall hold good for all 31 cases. There shall be two sureties who shall execute the bond for Rs. 30,000/- which bond shall hold good for all the 31 cases. It is clarified that the personal bond so executed by the Petitioner and the bond so executed by the two sureties shall hold good for all the 31 cases.”
Section 491 of BNSS (earlier sec 446 of CrPC) speaks about the procedure when bond has been forfeited- “Where-(a) A bond under this Sanhita is for appearance, or for production of property, before a court and it is proved to the to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or,
(b) in respect of any other bond under this Sanhita, it is proved to the satisfaction of the court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the court shall record the grounds of such proof and may call upon any person bound by such bond to pay penalty thereof or to show cause why it should not be paid.”
Extent of Liability of Surety:
In Narata Ram vs State of Himachal Pradesh (1993 SCC Online HP 53), it has been held that-
“…5 There is no controversy that the responsibility of surety arises from the execution of the surety bond by him and it is not contingent upon execution of a personal bond by the accused. Thus, the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. Perusal of Section 446 of the Code of Criminal Procedure( now sec 491 of BNS) contemplates two stages. The first stage is for the Court to satisfy itself that the bond has been forfeited. The second stage relates to the realization of the forfeited amount of the bond. For this purpose, it has to give him notice either to pay the penalty or to show cause why it should not be paid. It is imperative to note that if there are sufficient circumstances before the Court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.
6. It is also settled law that a notice to the surety cannot be issued, unless the order of forfeiture is passed. Thereafter, the Court has to consider the grounds made out by the surety in support of his case and after considering the case, on merits, if the Court is dissatisfied with the reasons shown, an order has to be made for the realization of the penalty.”
In R.D. Upadhyay vs . State of Andhra Pradesh, (1996) 3 SCC 422, the Supreme Court held that–
“…3. So far as the cases regarding attempt to murder are concerned, we direct that the cases which are pending for more than 2 years, the undertrials shall be released on bail forthwith to the satisfaction of the respective trial courts. Persons facing trial for Kidnapping, Theft, Cheating, Arms Act, Counterfeiting, Customs, under Section 326 IPC, under Section 324 IPC, Riots and under Section 354 IPC who are in jail for a period of more than one year, shall be released on bail forthwith to the satisfaction of the trial courts concerned. There may be cases where the undertrial persons may not be in a position to furnish sureties etc. In those cases, the trial courts may consider — keeping in view the facts of each case, especially the period spent in jail — releasing them on bail by furnishing personal bonds.
..4. We make it clear that it shall not be necessary for any of the undertrials to move application for bail. The court shall, on the authority of this Court’s order, consider the bail cases. This shall be done by all the courts concerned within two weeks of the receipt of this order. We give liberty to all concerned to approach this Court for further directions, if necessary.”
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