Surety

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What is 'Surety'

In simple terms, a Surety is an individual who agrees to take direct responsibility for someone else's obligations. In Criminal Justice system, Surety is also known as bail bond. It is a guarantee to the court that the accused will appear in the court and then only he or she will be released from jail. It is a legal relationship between two persons, which is a contract for release of accused on bail. In other words, surety is a person who gives an undertaking to the court, to answer for the appearance of an accused in his bail bonds.

The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'Bail' is surety. The following observation succinctly brings out the effect of bail:

"The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned."

Official Definition of Surety

A surety essentially pledges to ensure the presence of the accused or offender on the specified court date following the grant of bail. When the accused is unable to provide their own bond, the surety steps in to make the payment on their behalf as part of the bail bond process.

Surety as defined in Legislations

The term 'surety' is not specifically defined in the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Code of Criminal Procedure, 1973), it is commonly used in the context of bail-related provisions.

The BNSS provides more clarity by defining Bail Bond under Section 2(1)(d) of BNSS as 'an undertaking for release with surety.' and Bond under Section 2(1)(e) of BNSS as 'a personal bond or an undertaking for release without surety'. Section 478, BNSS 2023 ( earlier Section 436 o fCrPC) 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.

Chapter XXXV of the BNSS (Chapter XXXIII of the CrPC) 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).

Legal Provisions related to Surety

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

Section 485 of BNSS 2023 (earlier Section 441 of CrPC) 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. 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 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 494 of BNSS 2023 (earlier Section 448 of CrPC) makes special provision where person executing the bond is a minor and provides that iin such cases the court or an officer may accept a bond executed by the surety or sureties only.

Amount of Bond

Section 484, BNSS 2023 (earlier 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.

Declaration by Surety

As per Section 486 of BNSS 2023 (earlier section 441-A CrPC) every surety must declare before the court the number of persons he has stood as security for, including the accused, and give all relevant particulars.

A person intending to be the surety of an accused person must declare before the Court the number of other accused persons they have stood surety for. Section 441-A of the Cr.P.C., amended in 2006, allows a person to stand surety for multiple accused persons in multiple cases. The trial court will always assess the status, verification, and competency of the surety before acceptance.

Insufficient Surety

Section 488 of BNSS 2023 (earlier Section 443 of CrPC) provides that 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.

Forfeiture of Bond

Section 491 of BNSS 2023 (earlier Section 446 of CrPC) deals with the procedure when the bond has been forfeited. It 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. 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 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 prescribe 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 provides for a warrant of attachment against a surety and Form No. 51 for a warrant of commitment of the surety of an accused person admitted to bail in cases of forfeiture of the bond.

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.” 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.

Discharge of Surety

Section 489 of BNSS 2023 (earlier Section 444 of CrPC) deals with the discharge of the sureties and thus applies to a person who has been accepted as a surety and who may later desire not to continue as a surety. It states that any or all of the sureties may apply to the magistrate for wholly discharging their bond. According to Section 489 of BNSS, if any surety for bail seeks to discharge his bond, he is required to apply for the same before the Court concerned and the Court is duty-bound to issue an arrest warrant against the accused or the person who was released on bail upon the bond of such surety. After the appearance of the accused in the Court, the Court should discharge the bail bond of the surety and could ask the accused to find other sufficient surety and if he fails to do the same, the Court can commit such person to jail.

On the discharge of the bond, the responsibility of the surety ceases and the accused person is put back in the position where he was immediately before the execution of the bond. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety.

Further, Section 493 of BNSS 2023 (earlier Section 447 of CrPC) 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 491 of BNSS. 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.

Surety on Acquittal

Section 481 of BNSS 2023 (Section 437A of CrPC) requires requires a person who has been acquitted to furnish a bail bond and sureties, valid for a period of six months, to be able to be released from custody. This is to ensure the appearance of the accused if an appeal is filed before a higher court against the acquittal. The provision states that accused persons must execute bail bonds with sureties to appear before the higher court when an appeal or petition is filed against the judgment of the respective court. These bail bonds are valid for six months, and failure to appear leads to bond forfeiture and the application of Section 491 of BNSS procedures.

As defined in Case Laws

Personal Bond when bail bond is furnished after acquittal

Farsat Hussain v State of NCT of Delhi

The High Court of Delhi has recently in Farsat Hussain v State of NCT of Delhi passed an order directing the trial courts that in cases pertaining to Section 481 of BNSS 2023 (Section 437A of CrPC) , 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 High Court of Delhi essentially did away with the mandatory requirement to execute a personal bond with surety under this section.

Excessive Surety amount

Satender Kumar Antil vs. CBI and anr (2022)

In Satender Kumar Antil vs. CBI and anr. 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.

Same Surety in multiple cases

Girish Gandhi V The State of Uttar Pradesh & ors.

In Girish Gandhi V The State of Uttar Pradesh, the Supreme Court observed that 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. 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.

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

The 3-Judge Supreme Court bench in Ashok Sandeep Singh v. The State of Uttar Pradesh 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.

Local Surety

Re Policy Strategy for Grant of Bail (2023)

In Re Policy Strategy for Grant of Bail one of the direction by SUpreme Court was 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.”

Impersonation of Surety

Rajesh Kumar Rathore v. The State of Chhattisgarh

In Rajesh Kumar Rathore v. The State of Chhattisgarh, The Supreme Court 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.

Bail Conditions relating to surety

Sharwan Kumar Yadav v. State of Bihar

The Supreme Court in Sharwan Yadav v State of Bihar 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”.

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

In Moinul Hoque v State of Assam, 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.

Forfeiture of Surety Bonds

Mahmood Hasan v. State of UP

In Mahmood Hasan v. State of UP, 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.

Who can be a Surety

Bhushan Lal Sharma v. State

The J&K HC in Bhushan Lal Sharma v. State 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.

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

The Madhya Pradesh High Court in Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate 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.

Appearance in Official Government Reports

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.

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 titled Bail Decision Making: Are the conditions of bail imposed by courts restrictive?, It studies 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. The study finds that the courts in Bengaluru, Tumakaru, and Dharwad imposed two categories of conditions - monetary and related to conduct - when granting bail. Typically, bail was granted upon executing a personal bond with surety, with amounts ranging from Rs. 100 to Rs. 50,000. Alternatively, a personal bond with case surety was required, usually between Rs. 10,000 to Rs. 25,000, although higher amounts were set in a few cases. The courts consistently applied these conditions but rarely provided reasons for their decisions, making it hard to assess their appropriateness. It was recommended that lower courts justify their bail conditions clearly in their orders.