Madras High court guidelines on furnishing of surety for releasing accused on bail

1) Reading Sections 440, 441 and 445 Cr.P.C. together, it is clear that straightaway a Court cannot direct the accused to deposit cash security. First of all, the Court has to direct execution of bail bond by the sureties in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Section 445 Cr.P.C.).{Para 18}

19. As already stated even if the cash security is ordered under Section 445 Cr.P.C., the Court must pay regard to the circumstances of the case and the amount should not be excessive.

2)  The Courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual.

62. Some Courts insists that the surety should be a Government servant or a public servant or a person permanently employed in a reputed concern. This is not at all mentioned in the Code of Criminal Procedure. These are all inventions not by the Code but by some courts. It cannot be said that all Government servants, public servants are Buddas. There are many Government servants who are cheats. In many cases under Section 420 I.P.C., many Government servants are figuring as accused.

64. Chapter 33 of the Code does not say that the surety should be a member of the family or a blood relative. Court cannot insist that the sureties should be local surety. Suppose if the accused belongs to a different district, different State or even a foreigner or the accused is a business man or working here such as Nepalies, Biharies, etc. who will not have local sureties, their relatives are also in Bihar etc., it will be difficult for them to secure local sureties.

3)  Court should be satisfied as to the genuineness, identity of the surety and his residential address. It is equally applies to the accused. For this purpose, the Court can accept copy of anyone of the following documents after verification.

1. Passport

2. Ration Card

3. PAN card

4. Driving license

5. Voter's ID

6. Aadhaar Card

7. Photo ID issued by a recognised Educational Institution

8. Photo credit card

9. Kissan Photo Passbook

10. Pensioner's Photo card

11. Freedom fighter photo card

12. Identity Certificate with photo issued by a Gazetted officer or Tahsildar

13. Address card with photo issued by the Postal Department

14. Disability ID card or handicapped medical certificate issued by the Government

15. NREGS Job Card

16. CGHS/ECHS/State Government/ESIC Medical Card

17. Marriage Certificate issued by the Government

18. Post Office Statement or Passbook

19. Water Bill

20. Electricity Bill

21. Property Tax Receipt

22. Landline Telephone Bill

23. Credit Card Statement

24. Income-tax assessment order

25. Arms License

26. Certificate of Address issued by the head, Village Panchayat or an equivalent authority

27. Registered Lease/Sale/Rent Agreement

28. Caste and Domicile Certificate that has photo issued by the State Government

29. Gas Connection Bill

30. Insurance Policy

74. From the above analysis, we come to the conclusion that when the accused executes bail bond, when the surety executes surety bond, Court cannot insist production of property documents, surety need not be a Government servant or a blood relative or a local surety.

(viii) One person can be a surety for more than one accused.

(ix) In the first instance, cash surety cannot be insisted upon.

(x) When the accused is not in a position to produce personal surety and offers cash surety, it can be accepted.

IN THE HIGH COURT OF MADRAS

Crl. M.P. No. 3888 of 2017 in Crl. O.P. No. 2891 of 2017

Decided On: 24.04.2017

 Sagayam  Vs.  State

Hon'ble Judges/Coram:

P. Devadass, J.

Citation:  : MANU/TN/1519/2017

Print Page

Whether it is mandatory for Magistrate to obtain surety bond in cheque dishonour case?

In the first place learned Trial Magistrates shall note that 
the cases under section 138 of Negotiable Instruments Act are tried as 
summary cases and attendance of the accused is secured by issuance 
of process of summons.  In such cases the learned Magistrate shall also 
take note of the legal position that execution of personal bond and 
surety bond is not a condition precedent for commencement of trial. 
No doubt, the trial Magistrate has authority to ask for personal bond 
and surety bond to ensure attendance of the accused on the dates of 
hearing.   However, such discretion is to be exercised judiciously.   In 
my opinion unless there is apprehension that the accused would evade 
the trial or would not attend the dates of hearing, the purpose could 
be served by asking the accused to execute personal bond only of a 
reasonable amount.  Surety bonds shall not be required to be executed 
only   because   the   complainant   wants   such   bonds   to   be   executed.
CRIMINAL APPLICATION NO.992 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

 Subhash Atmaram Sharma 

Vs
 State of Maharashtra 

CORAM:­M.L. TAHALIYANI, J.
DATED : 20th MARCH, 2015.
 Citation: 2015(2)BomCR(Cri)304

Print Page

When should Magistrate not ask for the execution of surety bond for releasing property on supratnama?

After   having   gone   through   the   facts   of   the   case   and   after

hearing both the sides and particularly considering the fact that the applicant

is permanent resident of Nagpur and is having his business place at Nagpur,

it was not necessary for the learned Magistrate to ask for sureties for return

of property belonging  to  the applicant/complainant, particularly when  the

conditions have been imposed to ensure production of property  Hence, the

order passed by  the learned Magistrate on 15th  December, 2012, as  far as

para No.2 of the said order is concerned, is modified as under ;

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APL) NO.42 OF 2013

Shri Naresh Nemichand Kothari Vs The State of Maharashtra, 

CORAM : M.L. TAHALIYANI, J.

DATED   : 23rd JANUARY, 2013.

Print Page