When an accused person seeks for bail in court, court may ask him for a surety from other person. Purpose of surety is to make person responsible for the act of accused person after release. It is kind of an agreement for the responsibility of acts of accused person. In this article we will look who can be a surety in a criminal cases, requirements and conditions to become a surety, legal provisions and case laws related to surety.
What is surety?
According to Cambridge dictionary, surety is a person who accepts legal responsibility for another person’s debt or behaviour, or money given as a promise that someone will do something that they have promised to do, such as pay a debt or appear in court.[i]
What is bail and need for surety?
Bail is a temporary release of accused person. There are two types of bail.
Bail applied under Section 437 and 439 of the Code of Criminal Procedure, 1973. When person is arrested by police, accused person can apply for bail.
Bail applied under section 438 of the Code of Criminal Procedure, 1973. When there is fear of arrest, person can apply for anticipatory bail.
While applying for bail court may ask for a surety. The most important objective behind the surety bond is to ensure that the accused person will appear in the court when it is necessary. In this article we will discuss this in detail.
‘Surety’ under the Code of Criminal Procedure, 1973
Section 441 of the Code of Criminal Procedure, 1973 talks about the bond of accused and sureties for bail. According to this section court may ask for the surety by one person or more according to case. After bail of accused surety or sureties are conditioned that person shall attend the place mentioned in the given bond at given time. If it is required to appear in High court, Sessions court or any other court, then bond shall bind that person for that.
Who can be a surety?
Any natural person can be a surety. Artificial person or corporation cannot be a surety.[ii] According to section 441(4) of the Code of Criminal Procedure, Magistrate can check fitness or sufficiency of surety and may reject surety if not satisfied about reliability, identity, fitness or sufficiency of surety. The surety promises to pay some amount of money if accused will not be present in court at given time. The main purpose of surety is to insure that accused will appear in court if required and not money from surety.[iii] Court may ask for the papers of title over property or record of bank deposit etc. to check sufficiency and fitness of surety. Insolvent person cannot be a surety.
The purpose of surety is not just to pay amount but for attendance of accused person.
In case of State of UP v Bhola Ram[iv], it was held that, surety is not for money but to assure that accused should appear at court. Contract with surety and contract with accused are separate from each other. Therefore the person who can insure that accused will appear in court can be a surety.
Respectable person in society can be surety even without having any property.
In case of Bhushan Lal Sharma v State[v], it was held that person who is respectable in the society and can ensure attendance of accused in the court can be a surety even he or she do not posses any kind of movable or immovable property. A member of Parliament or Legislative Assembly or person holding such position can be a surety than person having property.
Artificial person cannot be a surety.
In case of Kamal Bai Gopalrao Jamdar v CJM, Gwalior[vi], it was held that artificial person like bank or corporation is not competent to be a surety as it cannot fulfil purpose of surety that is appearance of surety in court.
Even poor person can be a surety.
In case of Moti Ram v State of MP[vii], it was held that if the accused or surety is poor, court must give them relaxation in amount of surety. Also Supreme Court held that bail contains both bond by accused or bond by surety. If accused is poor then court may release on his own bond.
Person from different state or district can be a surety.
Court cannot insist for a local surety. In some of the cases local surety is required but it not necessary in every case. In Rishikumar v State of Rajasthan[viii], it was held that surety can be from different state. In Manish v State of UP[ix], it was held that it is not proper to ask for local surety from accused from a different district.
What if a person is poor?
As we have also discussed earlier that important objective behind asking for surety is to insure appearance of accused in court when it is necessary. In case of Hussainara Khatoon (I) v. Home Secretary, State of Bihar, 1980[x], Supreme Court observed that there is a need of change in current judicial system for the better perspective of poor people. Many people deprived from justice just because they cannot avail a lawyer. In this court also observed that many accused persons under charge of bailable crime do not get bail. Either the person will be unaware of one’s right to approach the Court for bail or they could not be in a position to find someone as surety and money for surety. In this case court has delivered a very important judgement regarding speedy trail and bail procedure for the prisoners. Court decided that those who are under charge of bailable offence should get bail.
Also in case of Sagayam v. State[xi] court held that it is not necessary to have movable or immovable property to become a surety. Also court held that it is against law to ask for the documents of property from accused or surety for the bail.
From these cases we can come to a conclusion that the even poor person also can be surety.
In this article we discussed who can be surety in criminal cases. The main purpose of surety is to insure appearance of accused in court. Therefore the Court asks for a surety who can insure and assure the conduct and character of the accused. We discussed various case laws to find who can be a surety. It depends more on court that who can be a surety. All conditions are just to check the fitness and sufficiency of surety.
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[i]See this https://dictionary.cambridge.org/dictionary/english/surety (last visited 17 September 2019).
[ii] Edmund N Schuster v Assistant Collector of Customs, (1966) 2 Del LT 65.
[iv]State of UP v Bhola Ram, 1977 All Cr R 234.
[v]Bhushan Lal Sharma v State, 1976 Kash LJ 409.
[vii]Moti Ram v State of MP, 1978 Cr LJ 1703 at 1709.
[viii]Rishikumar v State of Rajasthan, 1984 (1) Crimes 780 (Raj).
[ix]Manish v State of UP, 2008 Cr LJ (NOC) 1123 (All).
[x](1980) 1 SCC 81 at p. 86.
[xi] 2017 SCC OnLine Mad 1653.