Report No. 154

Sureties

19.1. The bail procedure is becoming a shame in courts with the accused in criminal cases absconding after arranging fake sureties on fake identities and address. Accordingly the procedure of securing release on the basis of forged documents has become easy.

19.2. In Delhi the practice seems to be that when the court allows accused's release on bail after a local person is willing to stand surety, the guarantor has to produce documents to the Court to prove his domicile and solvency. This is done by producing a ration card or a passport. In addition, a power-of-attorney attested by a Notary Public, a motor vehicle registration document, a bank fixed deposit receipt or a certificate from the Income-Tax Department is required to be submitted to authenticate the guarantor's solvency.

19.3. There are touts operating in the Court premises, who help out, on a price tag, those accused who scheme to obtain bail with the idea of absconding. These touts give surety on the basis of fake identity. They operate with numerous, fake ration cards which substantiate their domicile in Delhi each in a different name and address. A back dated stamp paper is procured on which details regarding the power-of-attorney of the guarantor's property in Delhi are stated and is attested by a Notary Public.

They also have in their possession fake letterheads of private organisations, fake identity cards of themselves as government servants and fake motor vehicle registration papers. The touts have to be paid 20% to 30% of the surety amount before the presentation of the surety.1

1. See Sureties for Sale - Bail Racket Unearthed, Statesman (Delhi Ed.), 28th May, 1995, pp. 1, 9.

19.4. Clause 44 of the Code of Criminal Procedure (Amendment) Bill seeks to incorporate a new section, section 441A to deal with the abuse of professional and fake sureties which reads as under:

"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."

19.5. We are of the view that section 441A be incorporated in the Code to eliminate the pernicious evil of professional and fake sureties in the bail process. It will eliminate collusion between professional sureties, administrators of criminal justice system and criminals.

20.1. Section 446 of the Code prescribes the procedure for forfeiture of bonds either for appearance or production of property. Before forfeiting the surety bond, the court should give notice to surety to show cause as to why the surety bond be not forfeited. Once a hearing is given to the surety and the court is satisfied that the bond is forfeited, it shall record the grounds of such proof and call upon the surety to pay the penalty.

20.2. Sub-section 3 of section 446 empowers the court, at its discretion, to remit any portion of the penalty and enforce payment in part only. It has been held by various decisions of the High Courts that a ease for the exercise of discretion under this sub-section will arise in cases where the accused has been subsequently arrested or the amount forfeited is excessive and the surety is unable to pay. It is also not irrelevant to consider whether the surety did not act irresponsibly and there was no connivance or negligence on the part of the surety.1

1. See Dayal Chand v. State of Rajasthan, 1982 Cr LJ 1008 (Raj); Ramakant Simopurkaskar v. State, 1989 Cr lj 1264 (Born); O.P. Anand v. State, 1989 Cr 14 2464 (Del).

20.3. Clause 45 of the Code of Criminal Procedure (Amendment) Bill seeks to amend sub-section (3) to provide that the court shall record reasons before reducing the penalty.

20.4. The proposed amendment is as follows:

"In section 446 of the principal Act, for the words "at its discretion", the words "after recording its reasons for doing so" shall be substituted."

20.5. We are of the view that in keeping with the tune of amendments to sections 436, 437, 438 and the insertion of sections 436A and 441A, the amendment of sub-section (3) of section 446 on the lines set out above to require rigorous exercise of discretion by the Courts by recording reasons prior to the reduction of penalty and enforcement in part, is proper and warranted.

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