TMI Blog2022 (1) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... The most prominent factor for the prevalence of local surety was the pressure from within the community of the accused, which would make them appear before the Courts. However, with the advent of identification through AADHAR, starting from 2010, the problems of concealment of identities or impersonation have been resolved - if the legislative intention was only to use cash deposit, then using the word money was sufficient, and there was no requirement to use the word Government promissory notes . Thus, the words Government promissory notes denote something other than money because money is currency notes, and even its most expansive definition would again include currency notes. Therefore, in no case, the term money would exclude currency notes. So, what was the need for the legislature to use the term Government promissory notes specifically . A promissory note is a financial instrument wherein the drawer promises a definite sum of money to its drawee or the bearer, either on-demand or at a specified future date. It is something other than money, i.e., currency notes. Thus, the legislature never expressly stopped fixed deposits from being taken as a promise of appearance b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 14,39,780/-. Subsequently, the police registered the FIR captioned above and arrested the accused. During the trial, learned Special Judge allowed the prosecution and convicted the applicant under Section 21(b) NDPS Act. The Court sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year further. The cash amount recovered was ordered to be forfeited to the State. 3. Learned Counsel for the applicant-convict argued that the quantity of 220 grams of heroin (Diacetylmorphine) is less than commercial and thus, rigors of section 37 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) do not apply, and application for suspension of sentence is to be considered similar to the general offences. Learned Counsel for the applicant-convict has further argued that the applicant is the first offender and has already undergone two years of the sentence, and the quantity involved is intermediate, whereas the Court has imposed the maximum sentence apart from forfeiting the money recovered from the house. 4. Mr. Randeep S. Dhull, Ld. Counsel submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial quantity. Given this, the restrictions of Section 37 of the NDPS Act do not apply in the present case. 9. In Sami Ullaha v. Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigours of the provisions of Section 37 may not be justified. 10. The applicant has undergone approximately one year during the trial. After that from the date of sentencing, that is w.e.f. 13.01.2020, he is continuing in prison. Thus, the applicant has completed two years of the sentence. A Coordinate Bench of this Court, while admitting the appeal against conviction, had stayed recovery of fine during its pendency. 11. The convict did attend the trial and committed himself to Court to face the sentence. It establishes that the accused did not abscond during the trial, which would be an additional circumstance while considering the suspension of sentence. 12. In Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437, a three-member bench of Hon'ble Supreme Court holds, [24]. Judged from any angle, the Section in so far as it completely debars the appellate courts from the power to suspend the sentence aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing bail bonds, and so do their sureties, undertaking to produce the accused before the concerned Court if they default to appear. Section 74 of the Indian Contract Act, 1972, provides compensation for breach of contract where a penalty is stipulated. The perfect insight is its illustration (c), which reads as follows, A' gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty. 17. In Pillappan @ Ravikumar v. State, 2018 Law Suit (Mad) 1475, Madras High Court observed, [15]. By virtue of Sec. 89 of the Code, the Court records the absence of the accused and issues a warrant to secure his presence. By his non appearance followed up with the act of the Court in issuing the non-bailable warrant for securing his presence, the accused has prima facie breached the condition of the bond. A bond is a contract between the accused and the State under which the accused has agreed to appear before the Court on the hearing dates and his sureties have assured the Court that they will ensure that the accused does not commit breach of the bond. 18. It is beyond cavil that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k transfer or bank lien is likely to address the corrupt system of unscrupulous stock sureties, throwing them out of highly questionable and unethical practices. The monetary bail has the edge over surety bonds, given unique identity details, electronic passports, face recognition gadgets, and GPS location. The technology has obsoleted the identification through sureties. 21. It appears that the Legislature was conscious of the menace of stock sureties, and probably to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A Cr.P.C., 1973, which reads as follows: 441-A. 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. 22. In its farsightedness, the legislature kept provision for the situations when an accused does not find any surety or none is ready to stand surety for her, by incorporating S. 445 of Cr.P.C., 1973, which reads as under: S. 445. Deposit instead of recognizance . - When any person is required by any Court or officer to execute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court may not release the accused on his personal bond and may insist on bail with sureties.... 26. In Moti Ram v. State of M.P., (1978) 4 SCC 47, Supreme Court, after referring to the provision for suspension of sentence of those convicted by trial Courts, holds, [27]. The slippery aspect is dispelled when we understand the import of Section 389(1) which reads: 389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. The Court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the power of the court to release increases when the guilt is established. It is not the court's status but the applicant's guilt status that is germane. That a guilty man may claim judicial liberation pro tempore without sureties while an under-trial cannot is a reductio ad absurdum . JUDICIAL PRECEDENTS ON S. 445 Cr.P.C.: 27. In Rajballam Singh v. Emperor, AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused. 31. In Krishna Kumar and others v. State of Karnataka, 1979 SCC OnLine Kar 118, [3]. It is also clear that on the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused persons to furnish cash deposit in lieu of the bond or sureties that the Court may make an order under Section 445. In the instant case, it is clear from the orders that the learned Magistrate has asked for securities in all the forms available under both the sections which is impermissible. 32. In Gokul Das v. The State of Assam, 1981 Cr.L.J. 229, Gauhati High Court observed, [14]. From the relevant provisions of the Criminal Procedure Code, there is no doubt that 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. 33. In Afsar Khan v. State by Girinagar Police, Bangalore, 1992 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance in Court is not to secure the payment of money to the State, for that is a secondary consideration, but to secure the presence of a person facing trial. Thus the primary consideration is the personal element of the surety or sureties concerned as the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for getting the accused arrested in case of any attempt on the part of the accused to abscond or to avoid attendance in Court. As observed by Alvorstone, Lord Chief Justice of England in King v. Porter, (1910) I KB 369, it is to the interest of the public that criminals should be brought to justice, and therefore that it should be made as difficult as possible for a criminal to abscond. Responsibility is fixed on the sureties to see that such a person does not escape. A duty is thus cast on the Court, in accepting or rejecting a surety, to see the sureties are solvent and persons of sufficient vigilance to secure the appearance and prevent the absconding of the accused. [7]. The principal purpose of bail being to secure that the accused person will return for trial if he is released after arrest, this considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I.T.P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court. 38. In Srinjay Kumar Singh v. State of Nagaland, 2007 (32) R.C.R. (Criminal) 516, Kohima Bench of Gauhati High Court observed, [4]. After hearing the counsel for the parties at length and upon perusal of the bail order dated 28.2.07, I am of the considered opinion that the rider to furnish surety from a permanent resident of Dimapur having immovable properties is too harsh as the accused is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C., 1973 he has the option to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of deprivation of grant of bail by fixing a heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a position to comply it. If heavy amount is demanded from the surety, then the bailor will not be forthcoming. And 'haves' will go out, while 'have nots' will remain in jail. [18]. Reading sections 440, 441 and 445 Cr.P.C., 1973 together, it is clear that straightaway a Court cannot direct the accused to deposit cash security. First of all, the Court has to direct execution of bail bond by the sureties in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Section 445 Cr.P.C., 1973). Thus, the Court cannot straightaway direct the accused to deposit cash security. 42. In Sagaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to execute bond, with or without sureties. Section 445 Cr.P.C., 1973 provides for deposit of a sum of money or Government Promissory Note to such amount as the Court may fix in lieu of executing the bond. 45. In Yan Hao v. State of Telangana, (Criminal Petition No. 1966 of 2021, decided on 23.3.2021), Telangana High Court permitted a Chinese national to furnish two cash sureties of Rs. 10,000/- each apart from a personal bond amount of similar amount. 46. In David Morrison v. State of Uttarakhand, 2021 (1) Crimes 230, Uttarakhand High Court permitted to deposit the cash amount. 47. From the survey of the judicial precedents mentioned above, the following fundamental principles of law relating to the choice of the accused to furnish surety bonds or secure recognizance by depositing a sum of money or Government promissory notes emerge: (a) 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 Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 (1) Crimes (HC) 109, Para 10]. SUBSTITUTION OF BONDS AT ANY STAGE: 48. In Sajal Kumar Mitra v. State of Maharashtra, 2011 Cr.L.J. 2744, High Court of Bombay observed, [10]. In my view, the learned Magistrates have power to release the accused on bail initially on furnishing cash bail and, thereafter, asking him to furnish solvent sureties in appropriate cases. 49. There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of surety amount by way of penalty is not equivalent of producing the accused to face trial. 50. S. 445 Cr.P.C. mandates an accused to execute bonds by officers and Courts, with or without sureties. An officer directs an accused to execute bonds only when the Court issues Bailable Warrants or when such officer arrests an accused in a bailable offence, or arrests in a non-bailable offence and when such an accused is armed with an order of anticipatory bail. Section 445 Cr.P.C. further provides that Court or such officer may permit the accused to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused. 55. In the alternative, the petitioner may furnish a personal bond of Rs. One Lac (INR 1,00,000/-), and hand over to the attesting Magistrate, a fixed deposit(s) for Rs. One Lac only (INR 1,00,000/-), made in favour of Chief Judicial Magistrate of the concerned district. Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the well-established and stable private banks, with the clause of automatic renewal of principal, and the interest reverting to the linked account. 56. Such a fixed deposit need not necessarily be made from the account of the applicant. If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court. If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled. The applicant or his Advocate shall infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sApp chats, calls nor format the phone without permission of the concerned SHO/I.O. 61. During the appeal's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this order of suspension of sentence. 62. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any language that the petitioner understands. 63. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court. 64. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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