8. This case raises an important and interesting question as to whether, a person who stood as a surety for an accused person, at the time when the accused person was released on bail, should continue to be a surety against his willingness on the ground that the accused person is absconding, and until he is secured, the surety will not be discharged?
Purpose of discharging surety
10. A careful reading of the above provision shows that this provision establishes the procedure for the purpose of discharging a surety. The provisions of this Section is meant for the continuity of the surety bond and for enabling the accused to offer other surety bonds. The extent to which a surety is bound by the surety bond, can be understood by reading the provisions under Section 446 of Cr.P.C, which deals with forfeiture of bond. The Section lays down the procedure as to how, a bond executed can be forfeited. The object of taking surety in a case, where an accused is released on bail, is for the purpose of ensuring the availability of an accused before the Court. Whenever the dates of trial are fixed, the surety shall be liable for the appearance of the accused in the Court for all hearings as may be fixed by the Court.
Liability of surety
11. The question is what is the liability of a surety, if in case the accused is not present before the Court during the hearings or the accused absconds. An answer is provided by the Hon’ble Supreme Court in the judgment in Mohammed Kunju And Another vs State Of Karnataka reported in [1999 8 SCC 660].
Section 446 Cr.P.C: Procedure to forfeit the bond
12. From the above judgment, it is clear that a surety can be bound to the extent of the amount mentioned in the bond, by forfeiting the bond, as per the procedure contemplated under Section 446 of Cr.P.C, whenever an accused does not appear on the date fixed by the Court or he absconds. Therefore, whenever a Court finds that the accused person has absconded and a surety wants to get discharged, the concerned Court can resort to the procedure contemplated under Section 446 of Cr.P.C and forfeit the bond executed by the surety and recover the amount covered by the bond by way of a penalty, from the surety. Beyond this, a Court can never compel a person to be a surety against his willingness. Section 444 of Cr.P.C merely provides for the procedure for discharge of sureties and that procedure cannot be read to the extent that the surety will never be discharged, till the accused person is brought before the Court. Such a restricted reading of the provision will go against the right of the surety to get himself discharged and to bind him permanently as a surety, affects the very liberty of a person, which is guaranteed under Article 21 of the Constitution of India. Both the Courts below lost sight of this very important aspect.
13. It is also important to take note of the provisions of Section 446-A of Cr.P.C. …… This provision was included by an amendment in the year 1980, by Act 63 of 1980 in order to deal with the menace of jumping bail. This Court had an occasion to deal with this provision in detail in Pillappan @ Ravikumar vs State reported in [2018 (3) CTC 156].
14. The above judgment gives a clear picture, with regard to the scope of power given to a Court under Section 446-A of Cr.P.C. Even though, the above judgment deals more with the consequence of an accused person, who does not appear, after being granted bail [bailable or non bailable offence], it can be seen that this Court has observed in more than one place that the sureties will have to make good the bond amount and the Court is entitled to proceed under Section 446 of Cr.P.C against the sureties for this purpose.
Section 446-A – Cancellation of bail bond
15. If the Court below finds that the accused person has absconded and he is not appearing before the Court, rather than compelling the surety to continue, the Court below should have resorted to the cancellation of bail bond executed by the accused and proceeded further. As per the above judgment, the Magistrate should not have acted in such a helpless manner and should have straightaway resorted to Section 446-A Cr.P.C.
Party
Prakash vs Deepak Kumar – Crl.O.P Nos: 25382 & 25834 of 2018 – Delivered on: 26.11.2018.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/425230
Author’s note
The following is the operative portions of Pillappan @ Ravikumar vs. State – 18.4.2018:
27. To recapitulate, if an accused on bail, be it in a case involving a bailable or non-bailable offence, (whether granted by the superior Court or by the Magistrate), does not appear on a hearing date and no petition is filed for dispensing with his presence, non-bailable warrant can be issued under Sec. 89 of the Code. On the appearance of the accused or on his production by the police, what is required to be given is, an opportunity to him to explain as to why he did not appear from that particular date onwards. If he gives a satisfactory explanation, he can be let off by recalling the warrant. If his explanation is not satisfactory, the Magistrate/Court is required to record the reasons and give a finding that the bond has been forfeited. On such finding, the bail bond gets automatically cancelled. Thereafter, the Magistrate/Court cannot release him on his own bond in view of the bar under Sec.446-A(b). He may be released under the proviso to Sec.446-A(b) on his executing a bond with fresh sureties, or, he may be remanded to custody under Sec. 309 of the Code. If he is so remanded to judicial custody, he should apply for fresh bail. Thereafter, the Magistrate/Court can issue notice under Sec. 446 of the Code to the sureties separately for payment of penalty. In the bail application filed afresh by the accused either under Sec.436 or 437 or 439 of the Code, the Court will have to consider not only the usual parameters for grant of bail but also the additional factor, viz., his abscondence.
My question now is as follows:
If the Magistrate as per section 446A CrPC cancelled the bond already given by the accused (especially in jumping bail) then after the Magistrate may (on surrender of the accused) will remand him under section 309(2) Cr.P.C. At this time the bail was not cancelled, if the situation is so, would the accused have to again apply for the bail or as per the condition of the court to execute the bond?
kindly readers may read the following:
Proviso to section 436 Cr.P.C which is as follows:
Provided further that nothing in this Section shall be deemed to affect the provisions of sub-Section (3) of Section 116 [or section 446-A] [Inserted by Act 63 of 1980, Section 4 (w.e.f. 23-9-1980)].
Proviso to section 446A Cr.P.C
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.
yours,
Ramprakash Rajagoapal.
