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TMI Blog2023 (5) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... notes in all bonds except the case of a bond for good behavior. There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial. There needs to be more assurance or likelihood of the refund of money taken by a stock surety. Whenever there is a possibility of the accused evading the trial, or is a potential flight risk, or the accused has a history of fleeing from justice, then in such cases, the concerned court can direct imposition of appropriate conditions that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. The petitioner is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed. - HON'BLE MR. JUSTICE ANOOP CHITKARA AND HON'BLE MR. JUSTICE ANOOP CHITKARA Mr. Abhimanyu Singh, Advocate for the petitioners. Mr. Harsimar Singh Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising power under Section 438 of the Code, the Court is dutybound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation. 7. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioners make a case for bail, subject to the following terms and conditions, which shall be over and above the declarations made in the bail petition and the contents of the form of bail bonds prescribed in chapter XXXIII of CrPC, 1973. 8. In Wan Chenghua v. State of U.T. Chandigarh, [2023:PHHC:074430], CRM-M23610-2023, the petitioner before this court was a resident of People s Republic of China, and had no relatives or community in India. This court was concerned with the situation that if any stock surety is accepted, it would merely be a formality because if he fails to appear, then in such a situation, the procured surety would not be able to produce the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bond. A bond is a contract between the accused and the State under which the accused has agreed to appear before the Court on the hearing dates and his sureties have assured the Court that they will ensure that the accused does not commit breach of the bond. (b). In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, a three-member bench of Supreme Court holds, [4]. If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties . (c). In Moti Ram v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind to demand cash security. It will not be covered by the terms of S. 513, Criminal P.C. and the demand of cash security in this case was clearly illegal. (c). In Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, High Court of Nagpur observed, [4]. Even under Section 513, Criminal P.C (1898) the accused could only be asked to deposit the amount of security instead of executing a bond. 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 . (d). In State of Mysore v. H VenkataramaKotaiyah, 1968 CrLJ 696, Mysore High Court observed , [4]. Section 513, Criminal P.C. states that when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer, may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond. According to this section, if the accused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and in no way opposed to any other law. The Legislature has given this discretion to the Court keeping full faith in the system of administration of justice. While administering justice; it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the interest of both the accused and the State. The conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion. (h). In Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109 Orissa High Court observed: [10]. ...From this it can be reasonably inferred that it is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. (i). In Charles Shobhraj v. State, 1996 (63) DLT 91, Delhi High Court observed, [6]. But then, all said and done, a few things need to be noticed. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State, for that is a secondary consideration, but to secure the presence of a person facing trial. Thus the primary consideration is the personal elem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce at Court proceedings or flight to avoid prosecution or failure to appear at Court proceedings. (j). In Alluvdin v. Inspector of Police, 2001 CrLJ 2672, Madras High Court observed, [3]. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C. (k). In Shokhista v. State, 2005 LawSuit (Del) 1316, Delhi High Court observed, [5]. 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. The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of U.P., 2015 (5) R.C.R.(Criminal) 13, Allahabad High Court observed, [6]. .The cash deposit is equally efficacious as other system in view of Section 445 Cr.P.C. (n). In Sakthivel v. The State, Crl.O.P.No.835 of 2015, Madras High Court observed, [15]. Either under Section 438, or under Section 437, 439 of Cr.P.C., it is not that the Courts have no power to impose such bail condition. But the condition should not be imposed for the sake of imposing condition. It must have some objective. It must be reasonable. It should not be oppressive in nature. It should be performable, executable. In imposing condition, the Court must take into account the individual's position, financial capacity and his role in the case. (o). In Navaneetha Krishnan v. State, (2) MadWN (Cri) 53, Madras High Court observed, [17]. While granting bail, the Court can direct the accused to execute bail bond. As per Section 440 Cr.P.C., 1973 the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C., 1973 he has the option to offer cash security. But even then, it must be a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to bail nowhere says that when a person is released on bail, the Court can also insist upon him to give cash security. The power has to be exercised in a proper and judicious manner and not in an arbitrary, capricious or whimsical manner and the discretion exercised shall appear to be just and reasonable one. It is the duty of the Court to see that any order to be passed or conditions to be imposed while granting bail shall always be in the interest of both the accused and the State. (r). In Ubaidulla v. State of Kerala, 2020:KER:27721 [PARA 5],(Crl. MC. No. 3400 of 2020, decided on 5-8-2020), Kerala High Court observed, (5).I find merit in the submissions made by the learned counsel for the petitioner. The very purpose of Section 445 Cr.P.C,, 1973 providing for deposit instead of recognizance, is to ensure that a person is not denied an opportunity to be enlarged on bail merely for the reason that he is unable to execute bond, with or without sureties. Section 445 Cr.P.C , 1973 provides for deposit of a sum of money or Government Promissory Note to such amount as the Court may fix in lieu of executing the bond. (s). In Yan Hao v. State of Telangana, (Criminal Petition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate or the Court, as the case may be, under sections 441 CrPC, 1973 and 445 CrPC, is mutually exclusive and not concurrent. [Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Para 9]. (d). A reading of the entire chapter, which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon to give cash security. [Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676 (7), Para 7]. (e). The Court cannot demand a cash deposit as a condition of bail. [Rajballam Singh v. Emperor, AIR 1943 Patna 375, Para 2]. (f). The offer to make cash surety must come from the accused. [Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Para 40]. (g). If the accused wants to deposit any sum of money, it is open to the Court to accept the same. [State of Mysore v. H VenkataramaKotaiyah, 1968 CrLJ 696, Para 4]. (h). The Magistrate is not bound to accept cash but may permit an accused person to deposit a sum of money. [R. R. Chari v. Emperor, 1948 AIR(All) 238, Para 4]. (i). Cash deposit instead of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all bails, including those granted under sections 389, 390, 397, 436, 437, 438, and 439 CrPC. In all bails or suspension of sentence, for the purposes of bonds, the financial instruments for security must be drawn up for or in the name of the concerned Chief Judicial Magistrate. The similarity between Sections 436 to 439 of the CrPC is that all these relate to bail, whether by an officer empowered to release on bail in bailable offenses or release under bail granted by Courts. Furthermore, S. 445 CrPC provides for depositing a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior. 17. There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial. 18. It is beyond cavil that the sole purpose of a surety bond is to ensure that whenever an accused evades attending the trial, their surety produces them before the court. The menace of securing sureties by payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an individual avails in their routine lives have tremendously reduced the reliance on persons adjacent or proximate to the individual to identify them and ensure compliance to their obligations correctly. Furthermore, citizens are constantly on the move, and territorial boundaries and distinctions are not holding back their pursuit of lives. 21. Equipped with a database of citizens, the governments are already proposing social plans of Universal Basic Income (UBI), direct bank transfers of grants, and the requirement of smartphone-based apps, credit cards, and pre-paid cards to aid equitable distribution. A multitude of financial instruments, blocking of requisite amount in the bank account connected to the individual, fixed deposits, payment through UPI interface, etc., can also ensure ease and better compliance. It will likely improve the possibility of the accused's attendance because they would know their money is safe and accruing interest, and the failure to appear shall lead to the immediate forfeiture of the money. It is further likely to motivate them to refrain from defaulting even once. In contrast, the risk of losing money handed over by cash to stock sureties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of the period mentioned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (d). The petitioners are to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order. (e). While furnishing personal bond, the petitioners/applicants shall mention the following personal identification details: 1. AADHAR number [For the residents of India] 2. Passport number [For foreign nationals] 3. Passport number of an Indian citizen, (If available), when the attesting officer/court deems it appropriate or considers the accused as a flight risk. 4. Mobile number (If available) 5. E-Mail id (If available) 24. The petitioners are directed to join investigation on June 7, 2023, and also as and when called upon to do so. 25. The petitioners shall not influence, browbeat, pressurize, make any ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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