A PROJECT REPORT ON

AN ANALYSIS OF BAIL, BAIL BOND AND

SURETIES

SUBMITTED TO
SUBMITTED BY

MRS. SREEJAYA PATIL

TALIB MUSTAFA
(FACULTY )
ROLL NO.- 164 ( SEM-IX)
(CRIMINAL LAW HONS)
BA.LLB (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR (C.G.)

Acknowledgments
In preparing this project I took help from many people but it is very difficult to list every
name. First and foremost I would like to express my heartfelt gratitude to Mrs. Sreejaya Patil for
putting her trust on me, by giving me such a topic and for her unstinted support by helping me in all
possible ways. I hope that I have not disappointed her and have done justice to it.
I also want to express my gratitude to the staff and administration of HNLU and to the library
and IT Lab that was a source of great help for the completion of this project. I would also like to
thank all my seniors who always guided me without their help, it would have been impossible for me
to complete this project.

Talib Mustafa
Roll No.- 164

TABLE OF CONTENTS

Acknowledgements............................................................................................02
Objective...........................................................................................................04
Research methodology.....................................................................................04
Introduction...05
Section 436 Cr. P.C...06
Section 441 (Bond of Accused and Sureties.)..08
441A. Declaration by sureties..24
Section 442 - Discharge from custody24
Section 443 - Power to order sufficient bail when that first taken is insufficient
..24
Section 444 - Discharge of sureties....25
Section 445 - Deposit instead of recognizance..25
Section 446 - Procedure when bond has been forfeited..25

Section 446A - Cancellation of bond and bailbond.26

Reference ......................................................................................................27

Objectives
To derive concept of Bail Bond in India.
To find out relevant cases to discuss the concept of bail bond and sureties.

Research Methodology
Data type: -. This research is descriptive and analytical in nature. Secondary sources have been
largely used to gather information and data about topic. Other references as guided by Faculty have
been primarily helpful in giving this project a firm structure. Help has also been taken from web
sites, reference books etc.

Introduction
Meaning of Bail:
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the
deposit of security to ensure his submission at the required time to legal authority.
According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a
person from legal custody, by undertaking that he/she shall appear at the time and place designated
and submit him/herself to the jurisdiction and judgment of the court.".

Bail under criminal Procedure Code:

Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436
provides that when person not accused of a non-bailable offense is arrested or detained he can be
detained as right to claim to be released on bail.
This section entitles a person other than the accused of a non-bailable offense to be released on bail,
it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person
without a warrant to inform him his right to be released on bail.
Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the
officer-in-charge of a police station or any court does not have any discretion whatsoever to deny

bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary
appearance of the person accused of an offense even where no summons or warrant has been issued
against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the
appearance of the accused must be in the obedience of a process issued by the court. The surrender
and the physical presence of the accused with the submission to the jurisdiction and order of the
court is judicial custody, and the accused may be granted bail and released from such custody.
The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high
amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the
amount of every bond executed under this chapter shall be fixed with due regard to the
circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or
the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.
Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the
condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not
as of right to be entitled to bail when brought before the court on any subsequent date even though
the offense may be bailable.
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
offense, 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 confirmed criminal or the offense is serious the court may not
release the accused on his personal bond and may insist on bail with sureties. But in the majority of
cases, considerations like family ties and relationship, roots in the community, employment status
etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases
where the offense is not grave and the accused is poor or belongs to a weaker section of the
community, release on personal bond could, as far as possible, be preferred. But even while releasing
the accused on personal bond it is necessary to caution the court that the amount of the bond which
it.

Section 436A . Maximum period for which an under trial prisoner can be detained The new provision Section 436Awas introduced in order to solve the problems of undertrials' who
were languishing in jails as they will now be given an opportunity to be set free instead of endlessly
waiting for their trial to take place. This move has been made due to a faulty criminal justice system
and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to
suggest that the Legislature and the Government have accepted the existence of the faulty system
and their inability to do anything about it. For this purpose section 436 A was inserted.
According to S. 436-A, a person who has undergone detention for a period extending upto half of the
maximum period of imprisonment imposed for a particular offense, shall be released on her/his
personal bond with or without sureties. The procedure provided is that the Court has to hear the
Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant,
or if not satisfied may order for the continued detention of the applicant. However, no prisoner can
be detained for a period longer than the maximum period of imprisonment provided. The exception
to the section is that it is not applicable to offenders who have been sentenced to death.
Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the
prisoner free or to make him/her continue imprisonment. There is no mention of any applications
having to be filed under the section. The first part of the section states that any prisoner who has
served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts
a restriction on the mandatory provision by giving discretionary powers to the courts. This raises
questions regarding the implementation of the provision. There is every chance that a prisoner may
be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges
give their written reasons for the same, one will not know on
what grounds a continuation of the term can be ordered as the section does not provide any
guidelines.
Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases,
bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to

the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S.
437, where though the court regards the case as fit for the grant of bail, it regards imposition of
certain conditions as necessary in the circumstances. To meet this need sub-section
(3) of S. 437 provides:
When a person accused or suspected of the commission of an offense punishable with imprisonment
which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to
commit, any such offense, is released on bail under sub-section (1), the Court may impose any
condition which the Court considers necessary: (a)In order to ensure that such person shall attend in accordance with the conditions of the bond
executed under this Chapter, or (b)In order to ensure that such person shall not commit an
offence similar to the offence of which he is accused or of the commission of which he is
suspected, or (c)Otherwise in the interests of Justice.
It will be noticed that: 1)The power to impose conditions has been given to the court and not to any police officer
2)The power to impose conditions can only be exercised i)Where the offence is punishable with the imprisonment which may extend to seven years or more
or
ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences
against the human body), or Chapter XVII (offences against the property) of I.P.C, or
iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such
offence as mentioned above in (i) and (ii).

Anticipatory bail In simple terms "Anticipatory bail" means, "bail in anticipation of arrest".
Anticipatory bail -a term not found in any Indian legislation- refers to a pre-arrest order passed by a
court that says that in the event a person is arrested, he is to be granted bail.
Section 438 of Criminal Procedure Code states as follows;

1. When any person has reason to believe that he may be arrested on an accusation of having
committed a non- bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest
he shall be released on bail.
2. When the High Court or the Court of Sessions makes a direction under sub-section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
think fit, including(a) a condition that the person shall make himself available for interrogation by a police officer as
and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the Court.
(d)such other conditionas may be imposed.

If such person is thereafter arrested without warrant by an officer-in-charge of a police station on

such accusation, and is prepared either at the time of arrest or at any time while in the custody of
such officer to give bail, he shall be released on bail. If a Magistrate taking cognizance of such
offence decides that a warrant should issue in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the Court.
It should be noted that where the High Court or Court of Sessions has not passed any interim order
under this section or has rejected the application for grant of anticipatory bail, it shall be open to an
officer in charge of a police station to arrest, without warrant the applicant on the basis of the
accusation apprehended in such application.
The anticipatory bail can not be granted after a Magistrate has issued warrant. The presence of the
applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application
and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the
Court considers such presence necessary in the interest of justice.
Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that
duration the Court granting anticipatory bail should leave it to the regular Court to deal with the
matter on an appreciation of evidence placed before it after the investigation has made progress or
the charge-sheet is submitted.
Anticipatory bail can not be granted in all cases as a matter of course. The exercise of power has to
be invoked in exceptional case only. While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the
free and full investigation and there should be prevention of harassment and unjustified detention of
the accused.
Anticipatory bail can not be granted as a matter of right. Applicant can approach High Court for
grant of anticipatory bail even if his application is rejected by the Court of Sessions, but not vice
versa. Where a matter of dowry death is under investigation it is not prudent for High Court to

grant anticipatory bail. If the application for anticipatory bail is rejected the second application is
not barred.
When can an Anticipatory bail be granted?

It can be given when a person apprehends arrest for a non-bailable offence (refer to the First
Schedule of CrPC for the list of offences labelled thus). It is given in those circumstances when
the court believes that there is a possibility that the accused has been falsely implicated and that
his freedom will not hamper the investigation of the crime. Having said that,bail granted under
s. 438 may be cancelled at any time if the investigation is hampered or if a condition under
the order is violated by the arrested person.
It is important to note that the attendance of the person apprehending arrest is compulsory at the
final hearing.
When can an Anticipatory bail be not granted?

There are certain circumstances where applications for anticipatory bail are normally refused.
These include:
For offences/contraventions under certain specific statutes like the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971.
The provisions of s. 438 are normally refused to those accused of particularly heinous offences
like murder and rape.

How to obtain an Anticipatory Bail?

One can avail the provisions of s. 438 by filing an application for the same in the High Court or
Sessions Court. If an application in the Sessions Court is rejected, the person may file the same
in the High Court, but not vice versa. The application may be preferred to the relevant court in
whose jurisdiction the accused was purported to commit the offence or the jurisdiction in which
the arrested person apprehends arrest.

What is the need for such a provision?

The main objective behind such a provision is to prevent those falsely implicated in criminal
cases to be subject to jail-time. The main factors considered while granting prayers for
anticipatory bail are that:
The full and free investigation of the offence should not be hampered.
The accused must not be subject to harassment and unjustified detention.

Cancellation Of Bail:
According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2)
of S. 437 may if considers it necessary so to do, direct that such person be arrested and
committed to custody.
The power to cancel bail has been given to the court and not to a police officer. Secondly, the
court which granted the bail can alone cancel it. The bail granted by a police officer cannot
be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the
powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of
bail when bails applied for is one thing; cancellation of bail already granted is quite another.
It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in
such case. Cancellation of bail necessary involves the review of a decision already made and
can large be permitted only if , by reason of supervening circumstances it would be no longer
conducive to a fair trial to allow the accused to retain his freedom during the trial. However,
bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be
cancelled even if there is absence of supervening circumstances. If there is no material to
prove that the accused abused his freedom court may not cancel the bail.

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -: ARTICLES 21 AND 22 READ
WITH ARTICLE 39A
Article 21 of the Constitution is said to enshrine the most important human rights in criminal
jurisprudence. The Supreme Court had for almost 27 years after the enactment of the
Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of
the rule of law that no one can deprived of his life and personal liberty by the executive action
unsupported by law. If there was a law which provided some sort of procedure, it was enough to
deprive a person of his life and personal liberty1.
In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for
an accused person. Article 22(1) does provide that no person who is arrested shall be denied the
right to consult and to be defended by legal practitioner of his choice, but as interpreted by the
Supreme Court in the celebrated case of Janardhan Reddy v. State of Hyderabad30, this
provision does not carry with it the right to be provided the services of legal practitioners at state
cost.
Also Article 39-A introduced in 1976 enacts that the state shall provide free legal services, to
ensure that opportunities for justice are not denied to any citizen by reason of economic or other
disabilities - this however remains a Directive Principle of State Policy which while laying down

an obligation on the State does not lay down an obligation enforceable in Court of law and does
not confer a constitutional right on the accused to secure free legal assistance.
The Supreme Court held in M.H. Hoskot v. State of Maharashtra31 and in Hussainara Khatoon's
case has held that a procedure which does not make legal services available to an accused person
who is too poor to afford a lawyer and who would, therefore go through the trial without legal
assistance cannot be regarded as reasonable, fair and just. It is an essential ingredient of
reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his
liberation through the court process should have legal services made available to him.
Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the
language of Article 21 and held that this is....
"a constitutional right of every accused person who is unable to engage a lawyer and secure
legal services on account of reasons such as poverty, indigence or incommunicado situation and
the State is under a mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so require, provided of course the accused person does not object to
the provision of such lawyer.
In India, bail or release on personal recognizance is available as a right in bailable offences not
punishable with death or life imprisonment and only to women and children in non-bailable
offences punishable with death or life imprisonment. The right of police to oppose bail, the
absence of legal aid for the poor and the right to speedy reduce to vanishing point the
classification of offences into bailable and non-bailable, make the prolonged confinement of the
poor inevitable during the pendency of investigation by the police and trial by a court.
In some cases wherein the period of imprisonment of the under trials exceeded the period of
imprisonment prescribed for the offences they were charged with- these appalling outrages, were
brought before the Supreme Court in Hussainara Khatoon v. State of Bihar .
In Mantoo Majumdar v. State of Bihar ,the Apex Court once again upheld the under trials right
to personal liberty and ordered the release of the petitioners on their own bond and without
sureties as they had spent six years awaiting their trial, in prison34. The travails of illegal
detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail
under section 167 Criminal Procedure Code, was further brought to light in letters written to
Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar.
The court recognized the inequitable operation of the law and condemned it-

"The rule of law does not exist merely for those who have the means to fight for their rights and
very often for perpetuation of status quo... but it exists also for the poor and the downtrodden...
and it is solemn duty of the court to protect and uphold the basic human rights of the weaker
section of the society.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant of the accusatorial system, which favours a bail system that
ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail
or release on personal recognizance is available as a right in bailable offences not punishable
with death or life imprisonment and only to women and children in non-bailable offences
punishable with death or life imprisonment. The right of police to oppose bail, the absence of
legal aid for the poor and the right to speedy reduce to vanishing point the classification of
offences into bailable and non-bailable and make the prolonged incarceration of the poor
inevitable during the pendency of investigation by the police and trial by a court.
The fact that under trials formed 80 percent of Bihar's prison population, their period of
imprisonment ranging from a dew months to ten years; some cases wherein the period of
imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences
they were charged with- these appalling outrages were brought before the Supreme Court in
Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360
Justice Bhagwati found that these unfortunate under trials languished in prisons not because they
were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of
Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials right to personal
liberty and ordered the release of the petitioners on their own bond and without sureties as they

had spent six years awaiting their trial, in prison. The court deplored the delay in police
investigation and the mechanical operation of the remand process by the magistrates insensitive
to the personal liberty of the under trials, remanded by them to prison. The Court deplored the
delay in police investigation and the mechanical operation of the remand process by the
magistrates insensitive to the personal liberty of under trials, and the magistrate failure to
monitor the detention of the under trials remanded by them to prison.
The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail
of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to
Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar
(1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it"The rule of law does not exist merely for those who have the means to fight for their rights and
very often for perpetuation of status quo... but it exist also for the poor and the downtrodden...
and it is solemn duty of the court to protect and uphold the basic human rights of the weaker
section of the society. Thus having discussed various hardships of pre-trial detention caused, due
to unaffordability of bail and unawareness of their right to bail, to under trials and as such
violation of their right to personal liberty and speedy trial under Article 21 as well as the
obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and
its nexus to the right of free legal aid to ensure the former under the Constitution- in order to
sensitize the rule of law of bail to the demands of the majority of poor and to make human rights
of the weaker sections a reality.

Case laws:
1.In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47
Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the
release, inappropriate cases, of an under trial prisoner on his bond without sureties and without
any monetary obligation.
Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it
is virtually impossible to translate risk of non- appearance by the accused into precise monetary
terms and even its basic premise that risk of financial loss is necessary to prevent the accused
from fleeing is of doubtful validity. There are several considerations which deter an accused from
running away from justice and risk of financial loss is only one of them and that too not a major

one. In this case the court also pointed out the enlightened Bail Projects in the United States such
as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has
been possible to secure the presence of the accused at the trial in quite a large number of cases.
The Court laid down following guidelines, that determine whether the accused has his roots in
the community which would deter him from fleeing, the Court should take into account the
following factors concerning the accused:
1. The length of his residence in the community
2. His employment status, history and his financial condition
3. His family ties and relationships
4. His reputation, character and monetary condition
5. His prior criminal record including any record or prior release on recognizance or on bail.
6. The identity of responsible members of the community who would vouch for his reliability.
The nature of the offense charged and the apparent probability of conviction and the likely
sentence in so far as these factors are relevant to the risk of non appearance, and 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.
2. In Public Prosecutor v. George Williams1951 Mad 1042
The Madras High Court pointed out five cases where a person granted bail may have the bail
cancelled and be recommitted to jail:
(a)Where the person on bail, during the period of the bail, commits the very same offence for
which is being tried or has been convicted, and thereby proves his utter unfitness to be on
bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly
prevents the search of place under his control for the corpus delicti or other incriminating
things; (c)If he tampers with the evidence, as by intimidating the prosecution witness,
interfering with scene of the offence in order to remove traces or proofs of crime, etc.
(d)If he runs away to a foreign country, or goes underground, or beyond the control of his
sureties; and (e)If he commits acts of violence, in revenge, against the police and the

prosecution witnessed & those who have booked him or are trying to book him.
(b)The word Bail means the security of a prisoners appearance for trial. The effect of
granting bail is, accordingly not to get the prisoner free from jail or custody, but to release
him from the custody of Law and to entrust him to the custody of his sureties who are
bond to produce him at his trial at a specified time and place. Grant of bail is a rule and
refusal is an exception. A person accused of a bailable offence has the right to be released
on bail. Bail in case of bailable offences is compulsory. In the matter of admission to bail
the Code of Criminal Procedure makes a distinction between bailable & non-bailable
offences. The grant of bail to a person accused of non-bailable offence is discretionary.
But a person accused of bailable offence at any time while under detention without a
warrant at any stage of the proceedings has the right to be released on bail in view of
section 436 Cr. P.C. 1973.2 When the offence is bailable and accused is prepared to
furnish bail, police officer has no discretion to refuse bail.3 Even when a person suspected
of committing a bailable offence is produced before a magistrate and he is prepared to
give bail, Magistrate has no option but to release him on appropriate bail.4 Magistrate
cannot refuse to accept surrender and to bail out an accused against whom a petition or
complaint of bailable offence has been filed.5 The offence when is bailable, bail has to be
granted. If the offence is non-bailable further considerations arise.6 While adjudicating a
bail application detailed examination of evidence and elaborate documentation of the
merits of the case is however to be avoided.7

2 Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939.

3 Dharmu Naik v. Rabindranath Acharya 1978 CrLJ 864 : Kanu Bhai v. State of Gujarat 1972 (B) Guj LR 748.
4 Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864 : Union of India v. S. Bhagwandas 1969 Mad. LW (Cri) 88.
5 K.K. Rao v. State 1982 Mad LJ (Cr). 330 : (1981)2 Andh LT 461.

6 State of Punjab v. Jagjit Singh, AIR 1962 SC 253 : (1962)3 SCR 622 : (1962)1 Cr. LJ 215.
7 Niranjan Singh v. Prabhakar (1980)2 SCC 559 : 1980 SCC (Cri) 508 : AIR 1980 SC 785.

Section 436 Cr. P.C.

(1) When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station or appears or is brought
before a court and is prepared at ay time while in the custody of such person shall be released on
bail: Provided that such officer or court if he or it thinks fit may (may and shall if such person is
indigent and is unable to furnish surety instead of taking bail) from such person discharge him on
his executing a bond without sureties for his appearances as hereinafter provided:
(Explanation where a person is unable to give bail within a week of the date of his arrest it
shall be sufficient ground for the officer or the court to presume that he is an indigent person for
the purpose of this proviso.)
Provided further that nothing in this section shall be deemed to affect the provisions of subsection (3) of section 116 [or section 446A.]
(2) Notwithstanding anything contained in sub section (1) where a person has failed to comply
with the conditions of the bail-bond as regards the time and place of attendance the court may
refuse to release him on bail when on a subsequent occasion in the same case he appears before
the court or is brought in custody and any such refusal shall be without prejudice to the powers
of the court to call upon any person bond by such bound to pay the penalty thereof under section
446.
In Morit Malhotra v. State of Rajasthan,8the accused was granted bail under section 436 by the
police. But when he appeared before the court he was advised to take bail from the court. He
challenged the orders in the Rajasthan High Court which ruled that it is not necessary for an
accused to get bail granted by the court if he has already been granted bail by the police. The
court drew support from the Supreme Court decision in Free Legal Aid Committee, Jamshedpur

8 1991 Cri. LJ 806 (Raj).

Vs. State of Bihar,9 wherein it was ruled that in a sessions case if the magistrate has granted bail,
the accused need not seek bail from the court of sessions.

Having regard to the nature of relationship of the person on bond with the court and the powers
conferred on the court under section 436, it appears that the above ruling may not be generally
followed by the courts. An interesting question arose in Haji Mohamed Wasim vs. State of U. P.10
before the Allahabad High Court as to the validity of bail granted by police officers. In this case\
the accused who was on bail granted by police preferred nor to appear before the court. The trial
court issued a non bailable warrant which came to be challenged by the accused under section
482. The court ruled that he has to take fresh bail from trial court. It reasoned:
The power of a police officer in-charge of a police station to grant bail and the bail granted by
him comes to an end with the conclusion of the investigation except incases where the sufficient
evidence is only that of a bailable offence, in which eventuality he can take security for
appearance of the accused Before the magistrate on a day fixed or from day to day until
otherwise directed. No parity can be claimed with an order passed by magistrate in view of
enabling provision contained in clause (b) of section 209.under which the committal
Magistrate has been empowered to grant bail until conclusion of trial, which power was
otherwise restricted to grant of bail by him during pendency of committal proceedings under
clause (a) of section 209.11
The real situation, as it obtains today in the society, is amply clear that police discretion is not
always being properly exercised in the matter of arrest. The citizens are being deprived of their
liberty and the police have become a kind of terror for the citizens because of their undue
harshness with the public in general and the suspects in particular. The newspapers are replete
9 AIR 1982 SC 1463.
10 1992 Cr. LJ 1299.
11 Id. at 1302; see also Morti Malhotra v. State of Rajasthan 1991 Cr. LJ 806.

with examples of police high-handedness. It is a matter of common knowledge that in order to

extract information from a suspect, the police beat a person in the course of investigation, in
custody to the extent that sometime an accused person even succumbs to injuries. On many
occasions departmental inquiries have been conducted; but these have been used mainly to cover
up the taint. Furthermore, instances are known where in order to secure conviction of an accused;
the police have concocted the whole prosecution story and have tutored the witnesses to
implicate innocent persons. Such police activities once led a high court judge to form an opinion
that police is itself an organization of goondas,12 although the remarks were expunged later by
the Supreme Court. Even then no echo of these remarks continues to be heard till today.

Section 441 (Bond of Accused and Sureties.)

1. Legislative history.-Section 441 corresponds to the provisions contained in section 499 of the
old Code, but sub-section (2) of the present section was newly added and sub-section (4) enables
the court to cause an inquiry to be made by a subordinate Magistrate whereas the old provision
permitted only the court itself to make an inquiry, if necessary.
2. Magistrate competent to take bond from surety although he has no jurisdiction to try
accused.-Even if the Magistrate has no jurisdiction to try the accused that fact does not divest
him of the jurisdiction to take a bond from the sureties and release the accused on bail when he is
put up before him and thereafter has jurisdiction to enforce the bond against the sureties in case
there is a breach.13
The Magistrate should not have refused to consider the surety bond of the accused on the ground
that he had risen for the day from the court.14

12 Amin v. State, AIR 1958 All. 293.

13 AIR 1956 All 78 : 1955 AWR (HC) 557
14 Omesh Saigal v. R.K. Dalmia, 1969 Cr LJ 896 (Del)

3. Construction of bond-Rules as to.-The terms of the surety bond have got to be determined
with reference to the language used in the bond itself and what the surety thought or understood
the bond to mean is not material.15 The terms of the surety bond must be strictly construed. Date
and time to produce the accused must be stated. Even though the bonds of the accused and the
surety are executed on the same page, yet each bond is a separate contract and gives rise to
separate rights and liabilities.16
No doubt a surety bond has to be strictly construed, but there is no principle which states that if
there is some kind of lacuna in the bond itself in regard to any particular matter, then the
surrounding circumstances and those documents, which, so to speak, accompanied the bond
itself, when it was put in the court, could not be looked into in order to determine what the clear
intention of the party executing the bond was 17Where the undertaking of the sureties is only to
make good Rs. 1,500 each on default of appearance of the accused, it cannot be interpreted to
mean an undertaking to pay Rs. 1,500 on default of each of the accused. Order of the Magistrate
that each of the petitioners (sureties) should deposit Rs. 1,500 for each of the defaulting accused
cannot be sustained.18
4. Bond and surety
(i) Form of bond.-The form of bond prescribed for this purpose is Form no. 45 in Schedule II of
Cr.P.C. and in this Form, the word is "Government", not the Government of India or the Central
Government. Section 476 provides that the forms prescribed in the Second Schedule may be
used, with such variations as the circumstances of each case require. Under the present
Constitution, every State is a juristic person entitled to enter into contract and to sue or be sued in
the name of the State. Administration of justice, Constitution and organisation of all courts,
15 AIR 1936 Nag 243 ; 1957 MPC 471 ; 1961 Ker LJ 1259 (Terms of a penal bond must be strictly construed).
16 Dr. Chimanlal Dharamdas Shah v. State, 1987 Cr LJ 2002 (Bom)
17 AIR 1956 All 78 : 1956 Cr LJ 23.
18 Kunju Mohammad v. Court of Judicial Magistrate, 1982 Cr LJ 475 (Ker)

except the Supreme Court and High Court is State-subject included in List 2 of the Seventh
Schedule of the Constitution of India and the amount of the fine is payable to the State
Government. Under the circumstances, the bond binding surety to forfeit the amount to the State
Government, was not void or unenforceable.19
(a) Undertaking to be in favour of Government.-A bail bond is an undertaking given by the
executant and that undertaking must be in favour of the Government and no other person. If the
undertaking is not in favour of the Government but in favour of the court, the bond is not one
under the Cr.P.C. to which section 446 may be attracted. It is not permissible to a court to
construe a bond not in favour of the Government by its general tenor or by looking to the
circumstances under which it was executed.20
Where in the bail bond it is stated that in case the accused makes default in appearance, then the
surety would deposit Rs. 1,500 in treasury out of his own pocket, the bail bond executed by the
surety does not fulfil the conditions provided by law. The bond should have contained in specific
terms that the surety, in case of failure to produce the accused, had bound himself to forfeit Rs.
1,500 to the Government of Kashmir.21 But in a later case of the same High Court, it has been
held that where in a bail bond the time and place at which the accused had to appear were
specifically given and in case the accused made default in appearance the surety undertook to
deposit the amount in the Government treasury, the bond strictly conformed to the form
prescribed by law and was not vague.22The earlier ruling was distinguished on the ground that
the bond in that case stated that the surety would deposit the amount in treasury out of his own
pocket and it was not mentioned which treasury was meant, whether it was treasury of a bank or
the Government treasury.

19 1954 Cr LJ 1205 : AIR 1954 MB 142

20 1964 Raj LW 233
21 1958 Cr LJ 893 : AIR 1958 J&K 38
22 See 1964 (2) Cr LJ 617 (J&K)

(b) No distinction between 'State' and 'Government'.-A bail bond not executed in the prescribed
form mentioning that in case the accused makes a default in appearance, the sureties would bind
themselves to the 'State' for a certain sum instead of the 'Government' cannot be said to be
invalid on the ground that it does not conform to the form prescribed by the Cr.P.C. In such a
case, the word 'State' does not indicate only territorial boundaries of the State, but it has got a
more comprehensive meaning referring to the 'Government' of that particular State as well, and
the defect is purely a technical one which does not affect the position in substance. The validity
cannot also be challenged on the ground that it was not in accordance with the form prescribed
and as entered in Second Schedule of the Cr.P.C. in terms of section 476 thereof, for the section
does not make it incumbent that in every case the form used must be the same as those
prescribed in the Second Schedule. That section lays down that the forms set forth in the Second
Schedule, with such variation as the circumstances of each case require, may be used for the
respective purpose therein mentioned.23
(ii) Bond to contain time and place.-A bail-bond must contain the time and place of
appearance.24Section 441 states that the time and place at which the accused is to appear must be
mentioned in the bond. Sub-section (3) thereof, says that if the accused is to appear in some other
court, the bond must expressly say so. It is not open to the court to depart from these
provisions.25The bonds executed by the sureties being of a penal character have to be strictly
construed. By reason of vagueness of conditions regarding time and place where they had to
appear, they cannot be said to be in consonance with section 441 and are, therefore, illegal and
ineffective against them as also against their surety.26To avoid hardship to an accused, the
Magistrate, while releasing the accused on bail, should require execution of a bond, with or
without surety, binding the accused not only to appear as and when required before him but also

23 1963 BLJR 396.

24 1885 AWN 44
25 AIR 1936 Nag 243 ; 1957 Cr LJ 138 (Mad)
26 State v. Jethanand Kundomal, 1968 Cr LJ 1356

to appear when called upon in the court of session.27Where a bail-bond executed under section
441, is for attendance in court, a particular court must be specified in the bond, and where the
bond is for attendance at the wishes of the police, the place at which the attendance is required
must also be specified. If no place is specified, the bond is defective and an order for payment of
penalty for forfeiture of the bond is illegal.28 Surety bond for appearance-Non-mention of name
of court where accused was to appear-Bond defective-Non-appearance by accused on date of
hearing-No forfeiture of bond.29The provisions of section 441(1) requiring the mentioning of the
place where the accused has to remain present is an essential requirement. When it is stated in
the surety bond that person has to remain present at the wishes of the police, it cannot be said to
be a bond in accordance with the provisions of section 441.30 Surety bond for appearance of
accused before appellate court-Name of court not mentioned-Bond, held, invalid.31 Where there
is no mention in surety bond of the court in which the accused is directed to appear and all that is
mentioned is that the surety undertakes to produce accused in "the court at B till the decision," it
is impossible to enforce a vague and slovenly bond of this character. It is not for the surety to
show that the bond is illegal, but for the State to show that the document, which it wishes to
enforce against him, is one which can be so enforced under the law.32The surety bond did not
specify the date on which the accused was to remain present. The portion of the bond was left
blank. Even the place where the accused was to remain present was not definitely mentioned in
the bond. All that was mentioned in the bond was the court of First Class Magistrate, but the
place to which this First Class Magistrate belonged was not mentioned in the bond. It was held

27 Free Legal Aid Committee v. State, 1982 Cr LJ 1943 (SC).

28 53 PLR 55.
29 1962 Raj LW 228.
30 Chhaganlal Fikabhai v. State, 1969 Cr LJ 1164 (Guj).
31 See AIR 1957 All 765 : 1957 Cr LJ 1206.
32 AIR 1936 Nag 243, followed in 1958 Cr LJ 893

that the bond suffered from vagueness and, therefore, it could not be enforced.33 Where a bond
fails to mention the time and place of appearance of accused and is executed by a surety only, it
is not possible to take any proceedings under section 446, infra for determining whether the bond
has been forfeited or not, for no court being mentioned, no court can legally take any proceeding
under section 446.34
See, however, the under mentioned cases-A surety bond which recites that "I shall produce the
accused wherever and whenever called upon to do so by the court" is quite valid and it cannot be
contended that it was invalid because it did not specify the exact time and place for the
production of the accused.35Where the surety bond was to the effect that "we shall produce (or
cause to appear) the accused at the session court whenever called upon to do so", it was held that
the form was not illegal so as to deprive the Judge of jurisdiction on the ground that the bond did
not specify time and place in accordance with section 441.36
Bond by surety undertaking to produce accused 'Indol-talab'-'indol-talab'- meant "on demand"Bond not in accordance with law.37
A bail bond executed under the Cr.P.C., can have no connection whatsoever with a sub-Judge
who is authorised to deal with civil matters only.38

33 AIR 1936 Nag 243, followed in 1957 Jab LJ 895 : 1957 MPC 471.
34 ILR (1939) All 924 : AIR 1939 All 682, followed in ILR (1952) 2 Raj 552.
35 AIR 1952 MB 2.
36 AIR 1929 Cal 261.
37 65 Punj LR 716.
38 1958 Cr LJ 893 : AIR 1958 J&K 38.

(iii) Artificial person such as a bank cannot become a surety.-Sureties must be such persons as
can be imprisoned in case of default. As such, artificial persons such as a bank are excluded from
the purview of executing surety bonds.39
(iv) Surety bound by same date as accused.-Where, in a bail bond, the accused bound himself to
appear on a specified date, and, below his signature, the surety undertook to produce the accused,
but no date was mentioned, and the accused failed to appear, it was held that the bail bond should
be read as one document and the bond was rightly forfeited by the lower court.40
(v) Bond may require accused to appear before police.-The wording of section 441(1) makes it
abundantly clear that it is competent to an officer-in-charge of a police station, when taking
action under this section, to make it a condition of bail bond that person released on bail shall
attend before the police at the time and place mentioned in such bond.41
Under section 441(1), a Magistrate admitting an accused person to bail before the completion of
the investigation is competent to require him to appear before the police when needed. The
generality of the words "shall attend at the time and place mentioned in the bond" in sub-section
(1) of that section is not affected by sub-section (3) which is not exhaustive of the places to
attend which an accused person may be bound but is merely inclusive of the places specifically
mentioned therein.42 But see the undermentioned decision : The words "such a person shall attend
at the time and place mentioned in the bond" have reference to attendance only in courts. The
object of bail is to ensure the appearance of an accused person in court, and not for making him
available during the investigation.43
39 Edmund N. Schuster v. Asst. Collector of Customs, 1967 Cr LJ 586 (Punj).
40 19 Cr LJ 687 : 46 IC 47.
41 22 PR (Cri) 1913, dissenting from 11 Cal 77.
42 47 PLR 199 : AIR 1945 Lah 215. See also 1964 Jab LJ 277.
43 AIR 1939 Cal 714, relying on (1957) 2 An WR 383 : (1957) Mad LJ (Cri) 609.

(vi) Bond may be taken for attendance on day to be thereafter given.-Form no. 45 in Second
Schedule, Cr.P.C., provides for the time referred to in section 441 to be not only a specified day
but also a day on which the accused may thereafter be required to attend. Nevertheless when the
bond takes this latter form, a reasonable notice must be given to the accused, and his surety of
the day on which the accused's attendance before the court is required.44
(vii) Accused required to appear before court on date to be fixed to answer charge-Accused be
asked to appear before charge is framed.-Where a person and his sureties only undertook to
appear before the court on each and every date to be fixed in future to answer the charge brought
against him, the court cannot call upon such person to appear before it, before any charge was
brought against him. And there is no duty cast on the sureties to produce him in court, if the court
chooses to direct his production for no purpose whatsoever.45
(viii) Verbal direction to appear-Validity.-By the terms of a bail bond, the defendant bound
himself to attend "on the first inquiry or at other times required." He appeared on a certain day on
which he was not required to attend and the Magistrate then verbally directed him to appear on a
subsequent date. He failed to attend, and his recognizance was thereon declared to be forfeited. It
was held that there was no illegality in the forfeiture of the recognizance.46
(ix) Bonds executed by surety and by accused need not be on same paper.-It is not required by
any provision of the Code of Criminal Procedure that all the sureties should execute the bond
printed at the back of the form on which the accused executes the personal bond or that the
accused must execute as many bonds in identical terms as there are surety bonds by individual
sureties. The mere fact that Form no. 45, Second Schedule, Criminal Procedure Code, prints the
contents of the two bonds, one to be executed by the accused and the other by the surety,
together, does not mean that both these bonds should be on the same sheet of paper. A surety
bond is as effective and legal as another surety bond executed just on the back of the bond
44 ILR (1940) Kant 477 : AIR 1940 Sind 136.
45 1962 (1) Cr LJ 673 (Tri).
46 5 MHCR (App) 15 : 2 Weir 658.

executed by the accused ; it does not become legally unacceptable only because it does not have
on the other side the personal bond executed by the accused.47
(x) Bond from surety without one from principal, if bad.-Where it was contended that a bond
executed by a surety alone was bad and unenforceable, the accused not having executed one, it
was held that, if a surety executes a bond for the appearance of the accused in court, he becomes
amenable to the penalties contemplated by law, in the event of his failure to produce the accused,
even though the accused himself does not execute a bond for his appearance. The two bonds
contain different undertakings and are not co-related. The validity of the one does not depend on
the validity of the other.48
The surety bonds can be enforced even if there is no bond by the accused. Bonds furnished by
the sureties are not illegal or unenforceable.49
(a) Surety's undertaking independent.-Undertaking of the surety to secure the attendance and
presence of the accused is quite independent of the undertaking given by the accused. The
forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the
bonds executed by the sureties.50
(b) Enforceability of surety's bond.-Enforceability of the bond executed by the surety is not
contingent on execution of personal bond by the accused.51
Contra.-There can be no surety without a principal. Where, therefore, no undertaking has been
given by the person arrested to appear when called upon to do so, it is not possible for any person
47 (1963) 1 SCJ 71 : 1963 Mad LJ (Cri) 45 : AIR 1963 SC 430.
48 36 Cr LJ 297 : AIR 1934 All 1046 ; ILR (1941) Lah 519
49 Ranjit Singh v. State, 1979 Cr LJ 1140 (All).
50 Ram Lal v. State, 1980 Cr LJ 826 (SC).
51 Sham Sunder v. State, 1990 Cr LJ 2370 (Del).

to declare himself surety for his appearance.52In the absence of a bond by the accused himself,
there can be no valid bond by the surety or sureties alone.53
In view of the provisions of section 448, in all cases other than of a minor, where a person is
required to execute a bond, before he is discharged from custody on bail, not only should the
sureties execute the bond but the person to be released on bail must also execute the bond.54
5. Powers of court
(i) Power to insert condition not provided by section.-The only condition contemplated by a bail
bond taken under the Code, is a condition for attendance in court. A condition that the accused
person will not deliver any speech until the disposal of the case under section 124A, I.P.C.,
against him, cannot be imported into the bail-bond and the bond cannot be forfeited under
section 446, infra on breach of that condition.55
It has been held that section 441 is exhaustive of the conditions which can be imposed on
sureties. The matter is not like a private contract, in which the parties are at liberty to choose
their own terms ; it is a special proceeding governed by special laws and must conform strictly to
them. It is, therefore, beyond the powers of the court to insert a provision in a surety bond that a
surety should undertake to produce the accused till decision.56This view has, however, been
dissented from in a later case which has held that the provisions of section 441 are not exhaustive
and do not override the inherent powers of the High Court in the matter of bail. There are no
restrictions on the High Court in the matter of imposing conditions on which it grants bail, and
there is no irregularity in the High Court directing that the sureties shall be responsible for the
52 AIR 1928 Lah 318. See also ILR (1939) All 924 : AIR 1939 All 682.
53 12 Cut LT 32 : AIR 1947 Pat 58, followed in ILR (1950) Cut 456
54 Mahadeo Amrut Gajbhiye v. State, 1974 Cr LJ 1075 (Bom).
55 ILR (1939) 2 Cal 42 : AIR 1939 Cal 714.
56 165 IC 825 : AIR 1936 Nag 243.

production of an accused person on bail in the High Court and for his subsequent production in
the court of the Chief Judicial Magistrate of the District, where he was tried, to hear the reserved
judgment in his appeal. A bond which directs the appearance of the accused not only in the High
Court but in such court in which the High Court might direct him to appear is, therefore, valid ;
and there is a forfeiture of the bond, if the sureties, although aware of the terms set out in the
bond on which they undertake to furnish security for the due appearance of the accused, fail to
produce the accused before the court according to the directions of the High Court.57 In AIR 1954
Sau 109, it has been held that an order directing the accused to execute a bond undertaking to
attend the court every day until the disposal of the case against him is proper but an additional
undertaking from him and his surety that he shall attend the court whether the case was fixed for
hearing or not is not justified.
See the undermentioned decision : Condition in bail bond that accused should report every day at
police station-Condition does not amount to restriction of the movement of accused-Place of
attendance for accused is also not restricted by section to court only-Hence condition that
accused should report at police station is not wrong.58
(ii) Power to direct delivery of released person to particular individual.-The court releasing a
person arrested under a warrant under section 87, can only order the release of that person, and
lay down the condition for such release but it cannot direct the delivery of the released person to
any particular individual or to his nominee. Such a direction is illegal.59
(iii) Magistrate cannot insist on particular person to stand surety.-A practice on the part of the
Magistrate to insist on pleaders in his court to stand surety for the accused is abhorrent and even
liable to be abused. There is no warrant under the Criminal Procedure Code for the court to insist

57 See ILR (1939) Nag 170 : AIR 1938 Nag 420.

58 AIR 1949 Cal 582 and AIR 1950 All 525
59 1948 ALJ 35 : AIR 1948 All 72.

on particular persons to stand surety. Section 441 mentions only 'sufficient' surety and does not
give the power to the court to insist on a particular surety.60
(iv) Magistrate has no power to demand cash deposit.-The law does not contemplate or
authorise a Magistrate to demand a cash deposit as a condition to the release of an accused on
bail.61Section 441 contemplates taking of a personal bond from the accused and a bond by one or
more sureties. It does not empower the Magistrate to demand cash security.62
(v) Rejection of surety-Powers of court.-As pointed out by the Supreme Court, it is not within
the power of the court to reject a surety because he or his estate was situate in a different district
or State. There is no law prescribing the geographical discrimination implicit in asking the
sureties from the court district.63 A Magistrate cannot reject sureties on the ground of their
political view.64
6. Liability and right of surety
(i) Surety not liable for failure to produce accused on day other than specified in bail bond.The sureties who have bound themselves to produce the accused before a certain court on a
certain date will not forfeit the bond if the accused so appears but fails to appear on a subsequent
date.65When the accused appeared on the day fixed in the bond for his appearance but failed to
appear on the next day when the case was called, the bond was not liable to be forfeited.66A
60 AIR 1961 Tripura 32 : 1961 (2) Cr LJ 288.
61 22 Pat 726 : AIR 1943 Pat 375 ; ILR (1948) All 302
62 State v. H. Venkatarama Kotaiyah, 1968 Cr LJ 696 (Mys).
63 Moti Ram v. State, AIR 1978 SC 1594.
64 ILR (1937) Nag 168.
65 36 Cal 749 : 10 Cr LJ 251.
66 4 MHCR Appx xliv.

surety is not liable for the default made by the accused on a date subsequent to that for which he
had rendered himself liable. If the accused attends on the date specified in the bail-bond, the
liability of the surety ceases.67When bonds were taken from the accused and their sureties to
appear on a Sunday when the court did not sit and when on the next Monday, the case was called
and the accused not being present the bonds were forfeited, it was held that the bond required the
attendance of the accused only on the day fixed i.e., Sunday and not on the next day, and that the
accused having appeared a day or two subsequently, and as it was the mistake of the court to
have fixed a wrong date, the bond could not, under the circumstances of the case be forfeited.68If
the bond of the surety stipulates for securing the attendance of the principal in court on a certain
date, the fact that the principal does not attend on an adjourned hearing cannot cause a forfeiture
of the surety bond.69The accused was convicted of cheating and fine of Rs. 1,000 was imposed,
for which time was given. The accused entered into a bond binding himself to appear before
court on August 24. The time was again and again extended till September 4, when the accused
did not turn up and the Magistrate thereupon forfeited the bond. It was held that a bond imposing
a penalty should always be construed strictly and as the accused has bound himself to appear
only on August 24, and not on any other date to which it may be adjourned, the bond was not
liable to be forfeited for the failure of the accused to appear on September 4.70 The sureties
became responsible for the appearance of the accused on the dates fixed by the court. On the date
fixed, parties appeared but were directed by the reader to appear the next day, the court being
absent. Next day, they appeared and put in a compromise, and went away. No order was passed
on the compromise. Eventually the compromise was accepted. It was held, the sureties were not
bound for the production of the accused on the date not fixed by the court. But when the accused
were present on that date and the compromise presented and no orders were given to him for

67 2 Weir 663.
68 2 CWN 519.
69 Rat 547.
70 56 Bom 220 : AIR 1932 Bom 290.

appearance on any other date, there was no justification for proceeding against them when the
compromise was eventually accepted.71A surety who undertakes by his bond to produce the
accused on particular dates and at a particular place cannot be ordered to produce the accused at
a different place or on a date different from those stipulated. Failure to do so does not, therefore,
cause a forfeiture of the surety bond.72
(ii) Surety not liable for failure to produce accused before court other than that specified in
bail bond.-Where a person executes surety bond under section 441(1), undertaking to produce
the accused in a particular court, there is no undertaking by him to produce him in any other
court. Where, therefore, the surety fails to produce the accused in a totally different court, it does
not amount to a breach of the bond and the surety cannot be held liable. The surety cannot be
held responsible under the terms of a document which do not apply to the circumstances of the
case.73Where the sureties bound themselves to be responsible for the appearance of the accused
during the preliminary enquiry, their liability ceases if the accused appeared during that enquiry
and their bond cannot be forfeited if the accused abscond after the preliminary enquiry and
during the trial at the sessions.74The accused executed personal bonds to attend on the dates on
which the case might be heard in the court of a certain Magistrate, named therein, or in a court of
session if the case should be committed to that court. The Magistrate (being then on tour) ordered
them to appear on one particular date in the court of another Magistrate. Some of the accused
failing so to appear, their bonds were ordered to be forfeited. It was held that order was wrong as
the bonds did not require them to appear in the court of the other Magistrate.75Surety bond-Body
of document showing that surety undertook to produce accused in court of Sub-Divisional
Judicial Magistrate-Words "Sub-Divisional Judicial Magistrate" in title of bond subsequently
71 AIR 1934 Lah 294 : 36 Cr LJ 557.
72 38 CWN 804 : AIR 1934 Cal 763.
73 165 IC 825 : AIR 1936 Nag 243 ; AIR 1954 MB 8.
74 9 WR (Cri) 36.
75 18 ALJ 631 : 57 IC 456. See also Note to section 446, infra.

replaced by words "Second Class Magistrate"-No record to show who made correction and at
what stage-Failure of accused to appear in court of Second Class Magistrate-No breach of terms
of bond.76
(iii) Order of forfeiture where legal.-A surety undertook to produce the accused before the
Magistrate of Agra during inquiry into an offence. The Magistrate ordered the surety later on to
produce the accused at Purnea. The accused disappeared on his way to Purnea. Nine months
later, the surety was ordered to produce the accused before the Magistrate at Agra in connection
with a case at Purnea and on his failing to do so his security was forfeited. It was held that the
order of forfeiture was correct but that the sum forfeited should be reduced under the
circumstances of the case.77
(iv) Surety producing accused on fixed date-Accused with court's permission leaving court
house-Surety's liability, if ceases.-The liability of a surety must continue so long as the surety
has not been discharged or the bail bond cancelled and the accused taken into the custody of the
court. The accused will be taken in the custody of the court only when his bail bond is cancelled.
In his bond, the accused bound himself to appear in the court on a fixed date and thereafter as
directed by the court and the surety bound himself that the accused would so attend and in
default of his so attending, he bound himself to forfeit Rs. 1,000. The surety produced the
accused on the fixed date. During the course of the proceedings, the accused with the court's
permission left the court-house to say his prayers and absconded. The bail bond was not
cancelled at that time nor was the surety discharged. It was held that the surety's liability did not
cease merely on the production of the accused in court but continued thereafter and the forfeiture
of his bond was justified. However, in view of mitigating circumstances in the case, the penalty
for forfeiture could be reduced to something nominal inasmuch as the surety was taken off his
guard.78

76 1964 Raj LW 273 : 1965 (1) Cr LJ 78 : AIR 1965 Raj 1.

77 49 All 825 : 25 ALJ 537.
78 ILR (1941) (Kant) 164 ; AIR 1941 Sind 31.

(v) Suicide of accused cancels surety bond.-Where an accused person commits suicide, the
sureties who have given bail for his appearance are not liable for the default of his appearance,
even though the possibility of his doing so may have passed through their minds and they did not
take steps to prevent the suicide.79 An order of the forfeiture of the bonds of certain sureties for
the appearance, at an adjourned hearing of an accused person who committed suicide before such
hearing, is illegal though the sureties might have ignorantly admitted the existence of the
accused, the death of the accused was an event his sureties could not have had in contemplation
and would not impose on them any moral obligation or responsibility to the courts.80
(vi) Liability of surety, if confined to bail bond.-The liability of the surety should be determined
on the terms of the bond itself.81
(a) Surety signing order-sheet.-It is no doubt true that generally the liability of a person who has
stood bail for an accused person must be determined on the terms of the bail bond itself and that
the order-sheet of the Magistrate imposing conditions on the accused before he is released forms
no part of the contract of bail. But if the surety has signed the order-sheet of the Magistrate
against the part which contains the undertaking on which he accepted the bail bond, the ordersheet with the surety's signature itself becomes a part of the contract of the surety. In such cases,
the liability of the surety is not confined to the bail bond alone.82
(b) Conditional bond.-Where there is no scope for any doubt regarding terms of the bond entered
into by the surety, the bond being conditional in nature upon giving of a particular date by the
court, and despite specific dates given by the court, the surety failed to produce the accused, the
order of Sessions Judge forfeiting the amount of the bond need not be interfered with. Further,
the request of the sureties that the amount of the bond to be forfeited be reduced as he is a pilot
79 37 Mad 156. See also 16 CWN 550.
80 18 Bom LR 683.
81 AIR 1938 Pat 211 ; AIR 1942 Oudh 112 ; 1961 Ker LJ 1259.
82 21 PLT 194 : AIR 1940 Pat 375.

driver of a motorcycle and incapable of paying Rs. 10,000 cannot be accepted. He was bound to
know the seriousness of the offence with which the accused was charged and of the
responsibility assumed by him.83
(vii) Right of surety to control movement of person released on bail.-There is no authority or
rule of law which justifies a person standing surety for the appearance of another in court in
exercise of such control over the movements of the other as are against the will of that other, in
order to secure his appearance in court. The surety, being responsible for the appearance of that
person in court and being liable to have his bond forfeited for the mere non-appearance of the
other, should have no doubt some sort of control. Such control is not unlimited in extent. It must
be the minimum control and to an extent up to such maximum period requisite for the surety to
put himself in contract with the public authorities in order to get himself relieved from the
obligation under his bond and to enable the court to pass suitable orders in the matter. The surety
is not entitled to keep the other party in confinement till the date fixed for the appearance of that
party in court.84
7. Sub-section (4)-Sufficiency of sureties.-A Magistrate is not precluded from sending bail
application to the court sub-inspector for certification of solvency of surety.85 If the court admits
a man to bail, it is at liberty to call for a report from the police as to the sufficiency of the bail,
but the duty of deciding as to its sufficiency or otherwise is with the court itself and not with the
police.86 The Cr.P.C. does not contemplate a consolidated bond either by the person directed to be
released or by the sureties. If the same sureties are to execute bonds, then sufficiency as per
section 441 should be considered with reference to all the persons taken together and the

83 Ramakant Simopuruskar v. State, 1989 Cr LJ 1264 (Bom).

84 1948 ALJ 35 : AIR 1948 All 72.
85 ILR (1960) Cut 342.
86 15 Cal 455.

undertaking should be that they would be liable for the amount specified in respect of each of the
accused.87
(i) Satisfaction of court concerned and not of other court-No interference.-The granting of bail
is a judicial act and not a ministerial one. The proceedings entail something more than the
passing of an order. The Judge or Magistrate who grants bail has to be personally satisfied in his
judicial capacity that the sureties produced are reliable and solvent, and that the persons who sign
the bond are actually the persons they purport to be ; and he cannot delegate his responsibility to
another unless the law or some rule having the force of law expressly empowers him to do so.
When the order granting bail provides for the execution of a bond by sureties, the bond has to be
executed by the sureties in the presence of the Magistrate who has seisin of the proceedings. The
sureties must appear before him and satisfy him of their solvency and identity. The Magistrate
has no power to allow the sureties to execute the bond in the presence of any other Magistrate
than himself.88The discretion conferred by section 441 on a Magistrate or a court and nature of
power conferred thereby is a quasi-judicial discretion, a power of a judicial authority. Where the
mother of 4 accused proposed to stand as surety for them and in her affidavit, declared that she
owned a house-the value of the house was not declared and the C.J.M. was not satisfied about the
fitness or sufficiency of the surety and refused to accept the surety bonds, the exercise of
discretionary powers is not open to interference at the hand of a superior court as long as it is
exercised reasonably, in good faith and on correct grounds, petition for direction to the C.J.M. to
accept surety bonds dismissed.89
(ii) Affidavit of surety.-If the personal bond and surety bonds are furnished and affidavit is filed
by the surety about his status generally, the same should be accepted. If the court has any doubt,
then the proper course is to accept it as an interim measure, release the accused and then send for

87 Kunju Mohammad v. Court of Judicial Magistrate, 1982 Cr LJ 475 (Ker).

88 ILR (1937) Nag 168 : 38 Cr LJ 633.
89 Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate, 1990 Cr LJ 2550 (MP).

verification and if the status of surety is found to be less, then the accused should be called upon
to furnish fresh surety.90
(iii) Enquiry.-If the court is not inclined to accept affidavits in regard to sufficiency or fitness of
sureties, it is incumbent on the court to hold enquiry itself or cause an enquiry to be made by a
Magistrate subordinate to the court as to sufficiency or fitness of the sureties. Where the
Additional Metropolitan Sessions Judge being not satisfied with the solvency of the sureties did
not conduct, inquiry contemplated under section 441(4), High Court would direct Additional
Metropolitan Sessions Judge to conduct such enquiry.91 Where the surety furnishes a surety bond
along with an affidavit as required by section 441(4), the Magistrate can accept his surety bond
and can make further enquiry as well and for this purpose, order verification from the Tehsil. In
such a case, the bond is accepted subject to further orders on the receipt of the Tehsil report. The
provision in section 441 contemplates that the accused is to be released on the execution of the
bonds which should be accepted on their face value in the first instance. Hence, a formal
acceptance of a surety bond on a future date does not in any way affect the surety's liability on
the bond from the earlier date on which it was first accepted.92
8. Discharge of personal and surety bonds on cancellation of bail.-On cancellation of bail, a
direction must be given for discharging both the personal bond and the surety bond. It will not be
in accordance with law when bail is suspended to cancel only the personal bond of the accused
and not to cancel the surety bond.93

90 State v. Lal Singh, 1987 Cr LJ 269 (Raj).

91 G. Venkat Ram Reddy v. State, 1990 Cr LJ 2741 (AP).
92 (1963) 1 SCJ 71 : 1963 (1) Cr LJ 335 : AIR 1963 SC 430.
93 Ram Shankar v. State, 1990 Cr LJ 2519 (All).

441A. Declaration by sureties

Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety including
the accused, giving therein all the relevant particulars.]

Section 442 - Discharge from custody

1) As soon as the bond has been executed, the person for whose appearance it has been
executed shall be released; and when he is in jail the Court admitting him to bail shall
issue an order of release to the officer in charge of the jail, and such officer on receipt of
the orders shall release him.
(2) Nothing in this section, section 436 or section 437 shall be deemed to require the
release of any person liable to be detained for some matter other than that in respect of
which the bond was executed.

Section 443 - Power to order sufficient bail when that first taken is insufficient
If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if
they afterwards become insufficient, the Court may issue a warrant of arrest directing that
the person released on bail be brought before it and may order him to find sufficient
sureties, and on his failing so to do, may commit him to jail.

Section 444 - Discharge of sureties

(1) All or any sureties for the attendance and appearance of a person released on bail may
at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates
to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest
directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary
surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as
relates to the applicants, and shall call upon such person to find other sufficient sureties,
and, if he fails to do so, may commit him to jail.

Section 445 - Deposit instead of recognizance

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 of officer may if
in lieu of executing such bond.

Section 446 - Procedure when bond has been forfeited

(1) Where a bond under this Code is for appearance, or for production of property, before
a Court and it is proved to the satisfaction of that Court or of any Court to which the case
has subsequently been transferred, that the bond has been forfeited,
or where in respect of any other bond under this Code, it is proved to the satisfaction of
the Court by which the bond was taken, or of any Court to which the case has
subsequently been transferred, or of the Court of any Magistrate of the first class, that the
bond has been forfeited, the Court shall record the grounds of such proof, and may call

upon any person bound by such bond to pay the penalty thereof or to show cause why it
should not be paid.
Explanation.-A condition in a bond for appearance, or for production of property,
before a Court shall be construed as including a condition for appearance, or as the
case may be, for production of property before any Court to which the case may
subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to
recover the same as if such penalty were a fine imposed by it under this Code:
1

[Provided that where such penalty is not paid and cannot be recovered in the manner

aforesaid, the person so bound as surety shall be liable, by order of the Court ordering
the recovery of the penalty, to imprisonment in civil jail for a term which may extend
to six months.]
(3) The Court may, 2[after recording its reasons for doing so], remit any portion of the
penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or
section 360 is convicted of an offence the commission of which constitutes a breach of
the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a
certified copy of the judgment of the Court by which he was convicted of such offence
may be used as evidence in proceedings under this section against his surety or sureties,
and, if such certified copy is so used, the Court shall presume that such offence was
committed by him unless the contrary is proved.

Section 446A - Cancellation of bond and bailbond

Without prejudice to the provisions of section 446, where a bond under this Code is for
appearance of a person in a case and it is forfeited for breach of a condition(a) the bond executed by such person as well as the bond, if any, executed by one or
more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond in that case, if
the Police Officer or the Court, as the case may be, for appearance before whom the
bond was executed, is satisfied that there was no sufficient cause for the failure of the
person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in
that case upon the execution of a fresh personal bond for such sum of money and
bond by one or more of such sureties as the Police Officer or the Court, as the
case may be, thinks sufficient.]

REFERANCE

SUDIPTO SARKAR & V R MANOHAR, SARKAR, CODE OF CRIMINAL

PROCEDURE, 9h ed. 2007.

M R MALLICK, DURGA DAS BASU, CRIMINAL PROCEDURE CODE 1973, 4h Ed.

2010.

M.P. SINGH, V.N. SHUKLAS CONSTITUTION OF INDIA, 11h Ed. 2008.

R.V. KELKAR, CRIMINAL PROCEDURE, 5h Ed., 2008.

Web Resource:

http://legaljunction.blogspot.com/2011/07/few-limitations-and-scope-of-criminal.html
Code of criminal procedure, 1973,

http://en.wikipedia.org/wiki/Code_of_Criminal_Procedure
India-Criminal Law and Procedure The Criminal Justice System,

http://www.mongabay.com/history/india/indiacriminal_law_and_procedure_the_criminal
_justice_system.html