Begging Before Someone To Stand As Surety Comes At Cost Of Pride, Accused Shall Be Allowed To Furnish Cash Deposits For Getting Bail: HP HC [Read Judgment]

The Himachal Pradesh High Court has observed that the Courts while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit.

Choosing between sureties and deposits, accused is the Queen and let her be, Justice Anoop Chitkara said while granting bail to an accused. The judge also observed that the lawyers have duty to apprise the accused of the existence of the provision of a cash deposit in the Code of Criminal Procedure (Section 445 CrPC)

Abhishek Kumar Singh, accused of committing a white-collar crime, had approached the High Court seeking bail. During the course of hearing, the counsel for the accused in the event this bail petition is allowed, then such release should be on cash security instead of surety bonds because the accused does not know anyone who resides nearby to stand as surety. In the current situation, no one from West Bengal can travel to furnish surety bonds, he contended.

The court noted that the sole purpose of a bond is to ensure presence of accused to attend the trial. The purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence, it added. In this regard, the judge further said:

"The right to life guaranteed by Article 21 of India's Constitution includes the right to live with dignity. Begging or pestering before someone to stand as a surety, comes at the cost of pride."

The court then surveyed precedents and summarized the principles of law relating to the choice of the accused to furnish surety bonds or secure recognizance by cash deposit as follows:

1. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State. The principal purpose of bail is to secure that the accused person will return for trial if he is released after arrest, this consideration is not lost sight of in the provisions of section 445 of the Code. [Charles Shobhraj v. State, 1996 (63) DLT 91, Para 6 & 7].
2. The discretionary power exercised by the Magistrate or the ::: Downloaded on - 06/08/2020 17:53:05 :::HCHP High Court of H.P. 15 Court, as the case may be, under sections 441 Cr.P.C., 1973 and 445 Cr.P.C., is mutually exclusive and not concurrent. [Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Para 9].
3. A reading of the entire chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. [Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676 (7), Para 7].
4. Court cannot demand cash deposit as a condition of bail. [Rajballam Singh v. Emperor, AIR 1943 Patna 375, Para 2]. e) The offer to make cash surety must come from the accused. [Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Para 40].
5. If the accused wants to deposit any sum of money, it is open to the Court to accept the same. [State of Mysore v. H Venkatarama Kotaiyah, 1968 CrLJ 696, Para 4].
6. The Magistrate is not bound to accept cash, but may permit an accused person to deposit a sum of money. [R. R. Chari v. Emperor, 1948 AIR(All) 238, Para 4].
7. Cash deposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount. [Gokul Das v. The State of Assam, 1981 CrLJ 229, Para 14].
8. The cash deposit is equally efficacious as other system in view of Section 445 CrPC. [Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R.(Criminal) 13, Para 6].
9. This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety. [Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, Para 4].
10. The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. [Shokhista v. State, 2005 LawSuit (Del) 1316, Para 5].
11. It is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. [Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109, Para 10].

The court further observed that the Cash surety improves the possibility of the accused's attendance. 

We are already late in encouraging deposits in place of sureties. Cash surety improves the possibility of the accused's attendance because she is aware that her money is safe and accruing interest on FD. It is further likely to motivate her not to default even once, in contrast to the handing over of cash to stock sureties, with hardly any assurance of its refund.  Given the advent of online identification, the pragmatic approach is that while granting bail with sureties, the Court should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another, impliedly informing the accused of the existence of her right under S. 445 of Code of Criminal Procedure, 1973. Choosing between sureties and deposits, accused is

the Queen and let her be.

Advocate has onerous duty to apprise the accused of the existence of the provision of a cash deposit 

The court further said:

An Advocate is an officer of the Court and a vigilant watcher of the interest of her client. Owing allegiance to the Constitution of India and being a professional, it's her onerous duty to apprise the accused of the existence of the provision of a cash deposit in the statute.

The court also observed that the bond amount must be reasonable. It said:

The Court has a formidable task of performing the tight rope locomotion by embarking on determination of the cash surety in consonance with the accused's monetary status. It should not be such as to precipitate the misery on the poor accused and deprive her of personal liberty despite being admitted to bail

The bench then disposed of the bail plea with the following direction:

Given above the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One Lac only (INR 1,00,000/-), and shall either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for Rs. One Lac only (INR 1,00,000/-), made in favour of Chief Judicial Magistrate, Reckongpeo, Kinnaur, H.P., from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. Such Fixed Deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made manually, then the original receipt has to be deposited. If made online, then the copy attested by any Advocate has to be filed, and the depositor shall get the online liquidation disabled. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. During the trial's pendency, it shall be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). The Court shall have a lien over the deposits until discharged by substitution, and otherwise up to the expiry of the period mentioned under S. 437-A CrPC, 1973

Sr Advocate Rajiv Jiwan, Advocates Anubhuti Sharma and Ragini Dogra assisted the Court as Amicus Curiae and Ms. Kalyani Acharya as Research Assistant. Advocate Vinod Chauhan appeared for the petitioner and Additional Advocate Genera Nand Lal Thakur for the state.

Case name: Abhishek Kumar Singh  vs. State of Himachal Pradesh

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