Court Can Dispense Requirement To Furnish Surety Bond Executed By Third Person For Bail Or Suspension Of Sentence: Delhi High Court

The Delhi High Court has recently held that it is permissible for a Court to completely dispense with the requirement that an undertrial prisoner or convict must furnish a surety bond executed by a third person to avail the benefit of bail or suspension of sentence.

Justice Anup Jairam Bhambhani said that the waiver or substitution of surety should be even more guarded where the prisoner is a foreign national, with the obvious heightened level of flight risk.

The Court was dealing with the pleas filed by two Nigerian nationals seeking modification of the conditions imposed upon them for grant of regular bail. The case against them was that they had overstayed the term of their visas and were illegal residents in India.

The foreign nationals sought reduction in the amount of personal bond and prayed that they be released only on deposit of cash with the Court in lieu of furnishing a surety bond.

Justice Bhambhani held that waiver of the requirement of furnishing a surety or substituting surety with a cash deposit should not be granted for the asking. 

The Court further observed that the waiver or substitution should be guarded to ensure that at least the fundamental requirement that an undertrial or convict must remain available to face trial or to undergo the punishment awarded, is not jeopardised.

“Whether or not the requirement for furnishing surety is to be waived or substituted in a given case, must be tested on the anvil of the three essential tests referred to above; and if after applying such tests, the court is satisfied that the requirement of furnishing surety can be waived or substituted without compromising the judicial process, a court would be well- advised to do so,” the Court said.

It reiterated that the requirement of furnishing surety should be the norm, and dispensing with such a requirement is the exception which is to be done only where a prisoner suffers from genuine inability to furnish surety.

Furthermore, Justice Bhambhani held that substitution of a surety with a cash deposit is an absolute exception, since the intent and purpose of the court in asking for a surety is simply not served by accepting a cash deposit instead.

“To say that if an accused/convict flees while on bail, the worst that can be done to a surety is to encash the surety bond is not at all a full answer, since in the opinion of this court, the encashment of a surety bond is the residual obligation of the surety, the primary obligation being to produce the accused/convict when asked by the court,” the Court said.

It added: “The purpose of justice is not served, by merely „encashing‟ a prisoner‟s flight-risk; and merely accepting cash in lieu of surety would not uphold the integrity of the judicial process.”

Justice Bhambhani observed that before a court waives the requirement of furnishing a surety or substitutes it with a cash deposit, it is necessary to duly consider the facts and circumstances of a given case and if necessary, to seek appropriate verification, to be satisfied that the prisoner suffers from a genuine inability to furnish surety.

In the facts of the instant case, the Court rejected the prayers of the foreign nationals for waiver of surety and for accepting cash in lieu of surety.

However, as a measure of abundant accommodation, the court considered it sufficient to modify their bail conditions.

It permitted one of the petitioners to furnish a personal bond with one surety in the sum of Rs. 40,000 instead of two sureties in the sum of Rs. 1 lakh.

The Court permitted the other petitioner to furnish a personal bond with one surety in the sum of Rs. 25,000 instead of one surety in the sum of Rs. 1 lakh.

Senior Advocate Rebecca John appeared as amicus curiae in the case.

Title: OBI OGOCHUKWA STEPHEN v. STATE and other connected matter

Citation: 2024 LiveLaw (Del) 1152

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