The terms bail and bond are not defined under the Criminal Procedure Code, 1973 but it has been mentioned under different provisions of the Criminal Procedure Code, 1973. The terms bail bond has much importance under the Criminal Procedure Code, 1973. There are different provisions relating to bail bond which are mentioned under CrPC such as Section 436 to Section 450.
Meaning of Bail:
Bail refers to the release of an accused person or individual in a criminal case where the court is yet to provide a judgement of the case. In simple words, bail means the security which is given by the accused to secure his release. There are commonly 3 types of bail and those are regular bail, interim bail and anticipatory bail.
Types of Offences under Bail are:
- Bailable Offence – This is defined under Section 2(a) of the CrPC, 1973. This is a punishable offence with imprisonment for less than 3 years or with fine only.
- Non- Bailable Offence – This is also defined under Section 2(a) of the CrPC, 1973. This is also a punishable offence with imprisonment for life or death or imprisonment for more than seven years.
Meaning of Bail Bond:
Bail Bond means a document in which a prisoner and one or more persons or individuals (Sureties) guarantee to pay the sum of amount which is fixed by the court against the prisoner and this is done to release the accused or prisoner and it also gives surety that the prisoner or accused person will appear before the court when required by the court. Bail protects the accused person from unnecessary detention.
Types of Bond:
- Personal Bond – Personal bond is a written contract in which a person who has been arrested agrees to appear before the court when required by the court that is on court dates and promises not to violate or break any law while the personal bond is in force. When this contract or bond is signed, the payment of bail is waived and the person or individual is released from the jail.
- Security Bond – A security bond treats or acts like a payment bond or performance bond. A security bond or surety bond is a contract between three persons such as the Principal (the person who is executing the bond), surety (Guarantor) and the obligee (the entity who requires the bond) and the surety ensures to the obligee that the principal or accused will obey the terms and conditions of the bond and he will appear before the court when needed.
If in case the surety has no cash or he is low on cash to pay for the bond then property bonds become useful. Generally, it is found that the person who gives surety is a known person of the accused having title over an immovable property and remains solvent without any tax arrears on the property and he should not be an accused of any offence and so on. It depends upon the Judge or Magistrate what documents are required to be deposited. Some of the documents such as ration card, voter card or passport and some Judges ask for property documents.
Documents Required for Bail Bond are as follows:
- Bail bond application
- Bail indemnity contract
- Deposit of money
- A surety which requires two sealed and two passport size photographs
- Identity proof, address of surety and financial statement of person surety
Factors which the court takes into consideration for granting bail bond are as follows:
- Nature of offence
- Penalty for the offence charged
- The ability of the accused to give bail
- Character and reputation of the accused
- Health of accused
- Strength of the evidence
- Former criminal record if any is also required and so on
Provisions relating to grant of Bail Bond under Criminal Procedure Code, 1973 are as follows:
- Section 436 – This section declares that if a person accused of an offence other than non-bailable offence then that person can be released on bail by executing a bond without sureties for his appearance before the court or police officer.
- Section 437 deals with bail in the non-bailable offence. This section says that an accused can be released on bail by executing a bail bond.
- Section 445 – This section provides that if a person is required to execute a bond with or without securities, except in case of a bond for good behaviour then the court allow him to deposit a sum of amount or Government promissory notes of such amount as the court may fix instead of executing the bond.
- Section 447 – This section declares that the surety becomes insolvent or dies or when the bond is forfeited then the court may order the person from whom such security was demanded to make new security and so on.
Who is capable to be a surety?
Section 441(4) of the Criminal Procedure Code says that a surety should be a fit person. In a general sense, he should be a genuine person. A surety appears before the court and provides an undertaking that he will ensure the appearance of the accused before the court when needed. A surety should have a proper or genuine address and he may be asked to produce residential proof to establish his identity. Anyone could be a surety who is fit under this Section to be a surety. Anyone who has address proof can be a surety but some persons cannot be a surety such as –
- If it is found that the surety cannot pay the amount which is mentioned in the bail bond then he is rejected to be a surety.
- People who are below 18 years of age
- Accused person’s solicitor
- People in custody
- People with previous convictions
- People who have been declared as bankrupt by any court and so on.
So, a neighbour can also be a surety if he wants. A neighbour is also fit to be a surety under Section 441(4) of the CrPC.
Case Laws Analysis:
“Sagayam @ Devasagayam vs State on 24 April 2017 Madras High Court”-
“The learned counsel for the petitioner submitted that even for a bail bond or surety bond for Rs.5,000/, Rs.10,000/-, Rs.15,000/- Courts insists production of property documents. Because of the present property value, it is very difficult to get property documents for such amount. Sometimes, in lieu of the same, Courts demand production of RC books of two-wheelers, four-wheelers, etc. The learned counsel for the petitioner also submitted that there is no provision in the Code of Criminal Procedure to direct the accused and the surety to produce such documents. Such a direction is against Article 21, Constitution of India. It is made clear that production of property documents or V.A.O. Certificate, Tahsildar Certificate, Solvency Certificate, R.C.book shall not be insisted upon from the accused or from the sureties.”
In this case, it is seen that the Court asked for property documents but there is no such provisions under the Criminal Procedure Code, 1973 which directs the accused and the surety to submit these documents or produce such documents and such a direction is against Article 21 of the Constitution. So, it cannot be insisted on the accused and sureties to produce such documents.
“Raju vs State of U.P. on 2 February, 2010 Allahabad High Court” – “Keeping in view the entire facts and circumstances of the case and submissions of the learned counsel for the appellant, let the appellant Mukesh Kumar Kaushal be released on bail in Criminal Trial No. 82 of 2004 arising out of crime no. 16 of 2004, Police Station Tikait Nagar, District Barabanki under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act,1985 on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Keeping in view the entire facts and circumstances of the case and submissions of the learned counsel for the appellant, let the appellant Pradeep Kumar Kaushal be released on bail in Criminal Trial No. 81 of 2004 (Crime No. 15 of 2004), Police Station Tikait Nagar,district Barabanki under Sections 8/21 the Narcotic Drug and Psychotropic Substances Act, 1985 on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. The realization of fine shall remain stayed during the pendency of the appeal, provided the appellant deposits half of the fine within one month. Bail has been opposed by learned A.G.A. However, this fact has not been controverted by learned A.G.A. that similarly situated co- accused Shyam Kishore Rastogi has been admitted to bail. Considered the respective submissions made by the parties. There is substance in the submissions of the learned counsel for the appellant. In view of all these facts and circumstances of the case, having regard to the nature of evidence adduced during trial and the probability factor, I am of the opinion that the appellant can be released on bail during the pendency of appeal on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the C.J.M. concerned provided he deposits the fine imposed by the trial court. On furnishing bail bonds and deposit of fine, the operation of the sentence of imprisonment shall remain suspended during the pendency of appeal. 29.1.2010 Tripathi Crl. Appeal No.174 of 2010.”
“In view of the above, having regard to the facts and circumstances of the case and the term of imprisonment awarded, I am of the opinion that the appellants can be released on bail. Let the above appellants be released on bail during the pendency of appeal on furnishing by each of them a personal bond with two sureties each in the like amount to satisfaction of the court concerned provided they deposit the fine imposed upon them by the trial court. The sentence of imprisonment awarded to the appellants, shall remain suspended during the pendency of the appeal, thereafter. 28.1.2010.”
The case declares that the appellant was convicted and sentenced for the terms of 5 years under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant has preferred this appeal against the impugned judgment and order dated 28.7. 2009 passed by the learned Additional Sessions Judge, Court No. 8, Barabanki in Criminal Trial No. 82 of 2004 arising out of crime no.16 of 2004, Police Station Tikait Nagar, district Barabanki. The Court said that the appellant should be released on bail during the pendency of the appeal on making a personal bond with or without sureties by each of them and the amount for it will be fixed by the court and also provided that they should deposit the fine imposed on them by the trial court. The Court also mentioned that the sentence of imprisonment which is awarded to the appellants will remain suspended during the pendency of the appeal.
“Abhishek Kumar Singh vs State Of Himachal Pradesh on 30 July, 2020 Himachal Pradesh High Court” – “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. Ld. Counsel on instructions received from the petitioner had contended about his inability to arrange any person to stand surety for him and furnish surety bonds. Ld. Counsel further submitted that the petitioner may be released either on furnishing personal bond with a cash deposit of Rs. One Lac, (INR 100,000/-), instead of surety bonds. To conclusively answer this proposition of law, the Court had requested Mr. Rajiv Jiwan Sr. Advocate, Ms. Anubhuti Sharma, and Ms. Ragini Dogra Advocates to assist Pro Bono. In Krishna Kumar and others v. State of Karnataka, 1979 SCC Online Kar 118, – It is also clear that on the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused persons to furnish cash deposit in lieu of the bond or sureties that the Court may make an order under Section 445. In the instant case, it is clear from the orders that the learned Magistrate has asked for securities in all the forms available under both the sections which is impermissible. In Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Orissa High Court observed, The discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 441 Cr.P.C., 1973 and 445 Cr.P.C., is mutually exclusive and not concurrent. On the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused to furnish cash deposit in lieu of executing such bond that the Court may make an order under section 445 of Cr.P.C., 1973. This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety. [Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, Para 4]. The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. [Shokhista v. State, 2005 LawSuit (Del) 1316, Para 5]. It is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. [Parades Patra v. the State of Orissa, 1994 (1) Crimes (HC) 109, Para 10].”
In this case, the Court granted bail after mentioning that influencing the course of the investigation, tampering with evidence, intimidating witnesses, and fleeing justice by the accused will be taken care of with elaborative and stringent conditions and by executing a bail bond. It is also mentioned in the case that the petitioner cannot arrange a surety and the Ld. Counsel mentioned that the petitioner can be released by executing a personal bond with a cash deposit of Rs. 1 lakh instead of a surety bond. It is also mentioned in the case that the Court requiring a person to execute a personal bond with or without sureties then it is at the option of the accused person or persons to make a cash deposit instead of the bond or sureties where the court may make an order under Section 445 of the Criminal Procedure Code, 1973.
This article will provide great knowledge on a bail bond. We have collected and arranged all the provisions and information required to know about bail bond. Anyone after reading this article will come to know the importance of bail, bail bond, personal bond, and security bond and so on. There different provisions under the Criminal Procedure Code, 1973 which are very important to know are also provided under this article. We hope that this article will serve you to a great extent.