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Provisions Of Cr.P.C with Respect to Bond of Accused and Sureties | Overview
- Provision under Cr.P.C, 1973
- Nature and Object of § 441
- Guidelines and Procedures for Furnishing Security
- Liabilities of the Sureties
Bail, in common parlance, means the amount to be furnished by the accused who is arrested on the suspicion of the commission of an offence. After such bail is furnished, the accused is required to promise or give in writing that s/he shall appear before the court on the designated time and place.
Bond is the written declaration by the accused that he will abide by all the orders and instructions of the authorities and if he fails to do so, a certain amount may be paid by paid. This article deals specifically with the bond of the accused and provisions under the Criminal Procedure Code, 1973 that deal with the bond of accused and sureties.
Provision under Cr.P.C, 1973
The code empowers the police and the courts to enlarge a person accused of an offence on its personal bond on several occasions. For instance, in the case where security is taken for peacekeeping or for maintaining good behaviour or where the accused is arrested for creating a public nuisance. Section 441 of the Cr.P.C contemplates the release of the accused on bail. Before such release, however, a bond either of the accused personally or by one or more sufficient sureties for releasing him on bail has to be obtained.
The provision entails guidelines as to when the courts or the investigating authorities may release a person on his/her bond or on the bond of the surety or sureties and also connotes certain conditions that may be imposed by the releasing authority while passing an order releasing the accused. According to Section 441, the court may impose any reasonable conditions that it believes would be sufficient to ensure the presence of the released person before any appropriate authority for the purpose of trial or any other purpose as provided by the law.
In common parlance, the court is usually satisfied to issue conditions such as:
- The prevention of the accused person to leave the town in which the trial is being proceeded or
- The prevention of the person from leaving his house, i.e. house arrest or
- The requirement that the person appears before the competent police officer or competent Magistrate every week or at a specific duration.
Nature and Object of § 441
Section 441 makes provision regarding bond of accused and sureties. It provides that a person who is accused of an offence under any penal law can be released on bail or on his personal bond if the person is willing to do so. At the time of releasing any person on bail, the authority may ask such person to execute a bond for a certain sum of money to ensure that the person appears before such authority as and when required.
Further, if the authority wants, it can release the person on his personal bond without any bail amount to be paid. During the execution of these bonds, the law usually requires that the bond be executed by at least two sureties as well. The sureties are people who act as guarantor for the appearance of the accused before the appropriate authority.
The provision does not only provide for the personal bond of the accused but for sureties to be provided by the accused. It has become a common phenomenon of offering surety to an accused even in heinous crimes. Owing to this, a large number of accused remain unavailable for the trial thereby prolonging the duration.
The main purpose of requiring an assurance in the form of bail and surety from the accused is to see that he remains available for the trial. If there is the possibility of the accused being present for the trial and also if there is no possibility or the authority is satisfied that the accused will not jump the conditions of bail, then, unless there are special compelling circumstances, the court should not refuse bail.
Under provisions of Section 441 (4), the court must satisfy itself with regard to the authenticity, veracity and competence of the person acting as surety before the court. The magistrate would be justified in refusing to accept surety bond if the Magistrate was not satisfied with the authenticity of legal competence of the sureties. In Sahab Sigh v. the State of M.P., the court observed that the discretion conferred upon courts under Section 441 of the Cr.P.C on a court or police officer is in the nature of a quasi-judicial power on judicial authority.
Guidelines and Procedures for Furnishing Security
In Moti Ram v. the State of M.P., Krishna Iyer J. observed that “the principal purpose of bail is to ensure that an accused person returns for trial. But, in the present system, the defendant with means can afford to pay bail and buy his/her freedom while the poorer defendant cannot pay the price. He does not stay in jail because he is guilty but because he is poor”.
The sarcasm, in this case, was with respect to the demand for cash securities by the police officers and courts. The court observed that the authorities in power misuse their discretion since no specific guidelines and procedure has been provided for deciding the amount of bail and the mode of furnishing it.
Therefore, to ensure that the purpose of bail is duly met, the courts have framed certain procedural requisites with respect to the release of accused on bond.
In Hussainara Khatoon v. Home Secretary, State of Bihar, the court held that if the court or other competent authority is satisfied that the accused is attached or very closely related to his hometown or his place of residence such that it is not likely that he will abscond and flee from justice, the court may release the accused on his execution of a personal bond.
To determine whether the accused has his roots in the community, it essential to look into the following factors:
- The span of his dwelling in the said area or coterie,
- His enrolment in any payable job, his recidivism and his good character,
- His relationship with the ménage and personal ties with kith and kins.
- His stature in the society and his fiscal or pecuniary exigencies,
- His act of recidivism, if any, and any circumstances before this where the person was arrested for an offence and/or released on bail,
- The congruence of the ménage ready to endorse or substantiate in favour of the release of the person.
- The trait of the crime with which the accused is charged, i.e. whether it is a felony or a misdemeanour, etc.
- Any other factors that the court considers necessary that may result in the change of the opinion of the court as to the determination of whether the accused should be released on bail or not.
Liabilities of the Sureties
Section 441 (4) makes it crystal clear that if the accused is released on his personal bond and he fails to furnish the amount of bail, the sureties who executed the bond along with the accused shall be liable to pay the amount of bail and any other amount as punishment.
Where it was conceded that the surety bond was for the attendance of the accused in a particular court and therefore, the liability of the surety came to an end when the case was transferred to another court, and that failure of the accused to appear before the second court would not cause forfeiture of the bond.
In Hussainara Khatoon, the apex court pointed out as to the practice of setting a bail amount for the release of the accused at such a high pedestal that it becomes almost impossible for the accused to pay off the bail amount. The court observed that the right of bail is not meant only for those who can afford to pay a high amount of money but also to those who have a genuine right to bail but cannot afford to pay for it.
Having said that, the court observed that the present practice of bail in India causes great hardships and impediments for the accused to prepare for defence and the courts must consider factors such as the financial correlation of the accused and his family and the likeness of the accused running away from the grasps of the justice system.
- Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th 2006).
- Ashok Dhamija, Law of Bail, Bonds Arrest and Custody (1st ed. 2009).
- K. Takwani, Criminal Procedure (3rd ed. 2011).
 Sahab Sigh v. the State of M.P., 2006 Cri. L.J 348 (MP).
 Moti Ram v. the State of M.P., AIR 1978 SC 1594.
 Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.
 Hussainara Khatoon (I) v. Home Secretary, State of Bihar, AIR 1979 SC 1360.