Surety

What is 'Surety'

This definition covers the scope of surety as provided in India's criminal justice system. In dictionary terms, a surety is someone who assumes direct liability for another’s obligations. The term ‘surety’ is not defined under the Criminal Procedure Code, 1973, or the Bharatiya Nagarik Suraksha Sanhita (BNSS, 2023), but is used in the provisions related to bail. A surety is a person who guarantees the presence of the accused or offender after being granted bail in court on the date specified by the court. The surety pays on behalf of the accused for the purpose of a bail bond when the accused is deemed incapable of furnishing his personal bond. It forms a part of the bail bond where another person furnishes the bail amount instead of the accused himself.

Legal Provisions relating to Surety

Provisions under CrPC and BNSS

In India, a surety is a type of bail bond. Chapter XXXIII of the CrPC (Chapter XXXV of the BNSS) deals with provisions relating to bail and bonds. A person may be released on bail in two ways either on the execution of a bond (without surety) or a bail bond (with payment of surety).

Section 436, CrPC (Section 478, BNSS 2023):

The proviso to S.436 CrPC assumes that bail requires surety and where a person is unable to pay such surety, instead of taking bail, can be released on a personal bond.

Section 437A, CrPC (Section 480, BNSS 2023):

Section 437A of CrPC makes it mandatory for the accused to execute bail bonds with sureties and to appear before the higher court as and when the court issues notice in the appeal or petition filed against the judgment and that such bail bonds be in force for six months. This means that when an accused is acquitted of charges tried against him, he is mandatorily required to furnish a personal bond with a surety bond on acquittal. However, the Delhi HC recently in Farsat Hussain v State of NCT of Delhi passed an order directing the trial courts that in cases pertaining to this section, the word 'shall‟ shall be read as 'may‟ and the word “bail or bail bond‟ shall be read as “personal bond with or without surety‟. Thus, the court essentially did away with the mandatory requirement to execute a personal bond with surety under this section.

Section 440, CrPC (Section 484, BNSS 2023):

Section 440 CrPC provides that the bail amount should be fixed “with due regard to the circumstances of the case and shall not be excessive.” It further provides power to the High Court or the Court of Session to reduce the bail required by a police officer or Magistrate.

Section 441, CrPC (Section 487, BNSS 2023):

Section 441 deals with the condition and execution of a bail bond. When a person is released on bail where a bond is given by one or more sufficient sureties, the sureties must make sure that such accused person shall attend according to the time and place mentioned in the bond and shall continue unless otherwise asked by a police officer or the court. As per section 441(4), if the magistrate is not satisfied with the sufficiency or fitness of the sureties, the surety may be rejected or may hold an inquiry regarding the same.

Form No. 45 in the second schedule of the CrPC (Form no. 45 in BNSS, 2023)  provides the declaration format by sureties for securing the attendance of the accused before the officer in charge of the police station or court as per bail bond.

Section 441A, CrPC (Section 488, BNSS 2023):

As per section 441A, every person acting as surety for the accused must declare before the court the number of persons to whom he has stood as security including the accused and should give therein all the relevant particulars.

Section 443, CrPC (Section 490, BNSS 2023):

If a person acting as surety is insufficient or afterward becomes insufficient, the court may issue a warrant for the arrest of the accused person and ask such a person to get a sufficient surety and if he fails to do so then the court may commit him to jail.

Section 444, CrPC (Section 491, BNSS 2023):

Section 444 deals with the discharge of the sureties. It states that any or all of the sureties may anytime for the appearance or the attendance of a person, apply to the magistrate for wholly discharging their bond or in relation to the applicants.

Section 446, CrPC  (Section 493, BNSS 2023):

Section 446 deals with the procedure when the bond has been forfeited. The proviso of clause 2 states that if sufficient cause is not shown for the forfeiture of the bond and the penalty is not paid and cannot be recovered, then the person bound as surety shall be liable to imprisonment in civil jail which may extend to six months. Further, clause 4 of Section 446 states that when a surety dies before the forfeiture of the bond then his estate shall be discharged from all liability in respect of the bond.

Form No. 48 and Form No. 49 in CrPC (Form No. 48 and 49 in BNSS 2023) prescribes the format for giving notice to the surety in on breach of a bond or forfeiture of bond for good behaviour by the accused respectively. Further, Form No. 50 (Form No. 50 in BNSS 2023) provides for a warrant of attachment against a surety and Form No. 51 (Form No. 51 in BNSS 2023) for a warrant of commitment of the surety of an accused person admitted to bail in cases of forfeiture of the bond.

Section 447, CrPC (Section 495, BNSS 2023):

Section 447 deals with the procedure when any surety to a bond becomes insolvent or dies or when any bond is forfeited under the provision of Section 446. It states that the court or magistrate of the first class may order the person from whom such security was demanded to furnish fresh securities in accordance with the directions of the original order and if such security is not furnished then such court or magistrate may proceed as if there had been a default in complying with such original order.

Section 448, CrPC ( (Section 496, BNSS 2023):

When the person required to execute a bond is a minor then the court or an officer may accept a bond executed by the surety or sureties only.

Appearance in Official Database

154th Law Commission Report

The 154th Law Commission Report on ‘The Code of Criminal Procedure, 1973,’ published in 1996 made some observations regarding surety. It noted that the bail procedure is becoming a shame in courts with the accused in criminal cases absconding after arranging fake sureties on fake identities and addresses. There were touts operating in the Court premises who helped out the accused to arrange fake sureties in exchange for a price tag. Therefore, the law commission suggested incorporating section 441A in the CrPC to deal with the abuse of professional and fake sureties in the bail process. The report further proposed an amendment to sub-section 3 of Section 446 to substitute the words “at its discretion” with “after recording its reasons for doing so”. This was done to ensure that the court exercises its discretion by recording reasons prior to the reduction of penalty and enforcement in part, is proper and warranted. Both the amendments recommended by the report are incorporated under CrPC.

268th Law Commission Report

The 268th Law Commission report on “Amendments to Criminal Procedure Code, 1973- Provisions Relating to Bail’ was published in 2017. It referred to the literal meaning of the word “bail” as surety. Therefore, bail relies on release subject to monetary assurance—either one’s own assurance (also called personal bond/recognizance) or through third-party sureties.

The report notes that the code does not provide for any standards to decide sureties other than the surety mentioned in section 440 of the CrPC, which states that the sureties would be prescribed with due regard to the circumstances of the case not being excessive. Therefore, other sections related to sureties must be read in consonance with this provision. This is because there are situations where a person cannot be released on bail since they are unable to deposit the surety amount. In such cases, the report recommended that the courts should adopt a liberal approach in reducing the surety amount, and in appropriate cases, releasing the person on a personal bond.

Case Laws on Surety

Ashok Sandeep Singh v. The State of Uttar Pradesh (SC-2024)

The 3-Judge Supreme Court bench held that imposing unreasonably high amounts of surety on the accused as a condition for grant of bail defeats the very purpose of bail and violates the right to life and liberty of an accused under Article 21 of the Constitution. It further proceeded to reduce the surety amount for the petitioner from 10 lakh to 25,000 rupees due to his inability to furnish the surety amount.

Girish Gandhi v. The State of Uttar Pradesh & Ors (SC-2024)

The Hon’ble Supreme Court on August 22, 2024, allowed a plea by a man to use his sureties furnished in one case for bail, in all other cases pending against him, as it emphasised the need to balance the requirement of furnishing the sureties in multiple cases faced by a man with his fundamental right of liberty under Article 21 of the Constitution.

Rajesh Kumar Rathore v. The State of Chhattisgarh (SC-2021)

The SC noted that the problem of impersonation of sureties is rampant across some states and thereafter,  issued notice to the Central Government and to the Unique Identification Authority of India (UIDAI) to find out a way for verification of the surety by the judicial officers for its authentication as part of the good governance. It observed that there is a surety module software prepared by the National Informatics Center but there is no mechanism to verify the genuineness of the surety.

Mohammed Kunju v. State of Karnataka (SC-1999)

In this case, the Supreme Court held that in case of forfeiture of a bond due to the default of the accused in appearing before the court, the surety is liable for the penalty which he has undertaken in the bond executed by him. Further, the court observed if there are two sureties then the amount should not be shared by half as each surety is liable to pay.

Moti Ram v. State of M.P (SC-1978)

The SC held that the court must lower the amount of bond required if the accused or surety is poor. It noted that the grant of bail will lose its purpose if the court is powerless to dispense bail with surety by observing “It shocks one’s conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000”. Therefore, the court passed an order rejecting surety because he or his estate was situated in a different district and was held to be violative of Article 14 of the Indian Constitution.

Satender Kumar Antil v Central Bureau of Investigation & Anr. (SC-2021)

The SC noted that it is a mandatory duty of the court to take into consideration the circumstances of the case with regard to the amount of every bond executed under Chapter XXXIII of CrPC. The court further observed that the reasonableness of the bond and surety is something that the court has to keep in mind whenever the same is insisted upon.

Guddan @Roop Narayan v State of Rajasthan (SC-2023)

In this case, the appellant was granted bail by the High Court with a deposit of fine amount of Rs.1,00,000/- along with a surety of another Rs.1,00,000/- and two further bail bonds of Rs.50,000/- each. The Supreme Court took note of the excessive conditions imposed by the HC and held that these conditions acted as a refusal to grant bail to the appellant. The fact that the appellant was not able to pay the amount and is still languishing in jail indicated that he was not able to make up the amount.

In Re Policy Strategy For Grant of Bail (SC-2023)

The SC held that one of the reasons which delays the release of the accused is the insistence upon local surety. It ordered that in such cases, the courts may not impose the condition of local surety. Further, the Court recommended that the Secretary, DLSA may take the help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

Sharwan Kumar Yadav @Sharwan Yadav v State of Bihar (SC-2024)

The Supreme Court set aside the bail order of the Patna HC which directed the accused to be released if the victim stands as a surety for his release. The two-judge bench noted that the accused is still languishing in jail due to such an “absurd condition”.

Sharanjit Singh @ Suraj v State of Punjab (P&H HC- 2024)

The Punjab and Haryana HC in this case was hearing a batch of bail petitions filed by persons accused of furnishing fake identities in bail bonds. The HC issued certain directions with respect to Aadhar Authentication Services in all the court premises after observing that the practice of ‘professional sureties’ is becoming a norm because courts do not release accused persons on bail on personal bonds. It observed that the delay in trials is leading to a situation where genuine surety is being pushed out by the professional sureties.

Iyyanar @ Iyyappan v. State (Madras HC- 2015)

In this case, the court found the bail bond for Rs.50,000/- as unreasonable and oppressive in nature. It noted while granting bail, the court has to consider the nature of the offence, but while fixing the bond amount, or surety amount, the court must consider the individual's financial condition. It must be an 'individualized decision'. It further modified the bail conditions to the effect that there shall be two sureties who shall execute a bond for Rs.5,000/- each.

Mahmood Hasan v. State (Allahabad HC- 1979)

In this case, the Allahabad HC held that before forfeiture of surety bonds, the court should give a notice to the surety to show cause as to why the surety bonds are not forfeited. This is a requirement under the rule of natural justice to provide an opportunity to be heard to a person against whom an adverse order is passed.

Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate (MP HC- 1990)

The Madhya Pradesh HC held that an artificial person like a bank or corporation cannot become sureties as it cannot fulfill the purpose of surety, that is of appearance of surety in a court.

Bhushan Lal Sharma v. State (Jammu and Kashmir HC- 1976)

The J&K HC held that the main purpose of requiring the accused person to produce sureties is to ensure his appearance in the court for trial. For this purpose, it does not matter whether the sureties possess sufficient movable or immovable property. It further held that a respectable person who can guarantee the accused’s appearance in court can serve as a surety. A member of a legislature or a chairman of a panchayat or similar persons holding responsible posts may serve as more satisfactory sureties than a person who may possess movable or immovable properties.

Moinul Hoque v State of Assam (Gauhati HC-2021)

In this case, the order passed by the Additional Sessions Judge imposing bail conditions on the accused was in contention before the Gauhati HC. This order required the accused petitioner to furnish two local sureties of Rs.40,000/- each and out of the two local sureties, one must be a government servant in the rank of Grade III. In this regard, the HC while retaining the order of furnishing two sureties, held that the condition of one surety to be a government servant of Grade-III rank appears to be unjust and unfair and therefore, it is set aside.

Research that engages with Surety

Bail Decision Making: Are the conditions of bail imposed by courts restrictive? (Centre for Law & Policy Research, 2019)

The Centre for Law & Policy Research (CLPR) conducted a study on the different kinds of conditions that courts regularly impose in Bengaluru, Tumakuru, and Dharwad while deciding on bail at the pre-trial stage. The study noted that violation of any conditions imposed while granting bail would inevitably lead to cancellation of bail in a substantial number of cases.

Broadly, the imposed conditions were classified into two categories- monetary conditions and conditions relating to the conduct of the accused during the criminal justice process. For our purpose, the first category of monetary conditions is relevant. Most commonly, the court granted bail subject to the execution of a personal bond supported by a surety. This order was made in over 50 percent of the cases where bail was granted in the city of Bengaluru and Tumakaru. In a majority of cases, the courts have set the bond amount between Rs. 100- Rs. 50,000 with 1 or 2 sureties whereas only in a few cases, the higher bond amount of Rs. 1,00,000 was set up across the three districts.

In another set of cases, the courts granted bail subject to the arrested person executing a personal bond with case surety. The amount for personal bonds ranged between Rs. 10,000-25,000 whereas a high bond amount of Rs, 50,000 was set in only five cases in the cities of Bengaluru and Tumakuru. It is to be noted that there were no cases in Dharwad where such a condition was ordered.

In conclusion, the courts imposed a standard set of conditions while granting bail in pre-trial cases across the three districts. However, these bail orders do not reveal reasons for imposing these conditions. It is unclear whether courts are more likely to set a higher value on the personal bond or require more sureties depending on the nature of offence. As a result, it becomes difficult to examine from the court record if the conditions imposed are unreasonably restrictive. Hence, the report recommended that lower courts must pass reasoned and detailed orders that set out the factors that were germane to the bail decision and their relation with the conditions of bail.