While granting bail with sureties, Court should give choice to accused to either furnish surety bonds or handover FD, or direct electronic money transfer, or create lien over bank account: P&H HC

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Read Order: Mahidul Sheikh v. State of Haryana

Monika Rahar

Chandigarh, January 17,  2022:  The Punjab and Haryana High has held that a fixed deposit or electronic transfer, or creating a lien over the bank account, in place of cash or sureties is likely to improve the possibility of the accused person’s attendance because they would be aware of the fact that their money is safe and accruing interest. 

The Bench of Justice Anoop Chitkara added that they would also keep in mind that failure to appear shall lead to the forfeiture of the money which is likely to motivate them not to default even once. The Court found this to be in tune with the Legislative intention under Section 445 Cr.P.C.

The Bench further said,“The pragmatic approach is that while granting bail with sureties, the “Court” and the “Arresting Officer” should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer.”

The High Court was approached by the applicant-appellant under section 389 of the Cr.P.C. for seeking suspension of his sentence. He was convicted by the trial court under Section 21(b) NDPS Act for having possession of a bag containing heroin and was sentenced to undergo rigorous imprisonment for ten years along with a certain sum of fine. 

The Counsel for the applicant-appellant argued that the quantity of heroin was less than commercial and thus, rigour of section 37 of NDPS Act was not applicable. It was further argued that the applicant was a first-time offender and he already underwent two years of the sentence and that the quantity involved was intermediate, whereas the Court imposed the maximum sentence apart from forfeiting the money recovered from the house. 

The Counsel also asked the Court if the appellant could offer a fixed deposit in place of surety because the fear of forfeiture of money which would encourage him (applicant) to surrender in case his conviction was upheld. 

On the other hand, the State counsel opposed the application on the ground that the grant of bail to drug peddlers could serve as a source of encouragement for others. While the Amicus Curiae submitted that given the advent of online identification, while granting bail with sureties, the “Court” or “the Arresting Officer” should give a choice to the accused to either furnish surety bonds or give a fixed deposit, impliedly informing the accused of Section 445 Cr.P.C.

The Court observed at the outset that the further incarceration of the accused would not be justified owing to the fact that the quantity of heroin recovered was less than commercial quantity which resulted in ousting the restrictions of Section 37 of the NDPS Act and that the applicant duly attended the trial without absconding.

“Without commenting on the merits, the applicant makes a case for suspension of sentence. Thus, in the peculiar facts and circumstances, the execution of the sentence of imprisonment is suspended. The order is subject to executing a bond for attendance. In case of dismissal of the appeal, the applicant shall surrender to serve the imprisonment. Terms and conditions as set out in this order shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC,” said the Bench. 

Further, regarding the offer of a fixed deposit instead of a bond, the Court observed that the grant of bail, which includes suspension of sentence, is a promise by the accused to the Court to attend the trial and comply with the conditions stipulated in the order. The accused accepts such a contract by furnishing bail bonds, and so do their sureties, undertaking to produce the accused before the concerned Court if they default to appear. 

Addressing the argument of having a local surety, the Court observed that while the presence of a local surety makes it easier to identify and trace the accused and to add pressure from within the community of the accused to appear before the Courts, but with the advent of identification through AADHAR, the problems of concealment of identities or impersonation have been resolved. Also, the Court reflected on how the generation ‘Z’ would neither like to stand as someone’s surety nor ask a stranger to stand as their surety. The Court also threw light on the corruption prevalent in securing sureties by payment and the flourishing business that people have established of procuring sureties.

The Court looked into the provisions of  S. 445 of Cr.P.C, 1973 and stated that the legislature kept this section for the situations when an accused does not find any surety or none is ready to stand surety for her. The Court further opined that the legislature never expressly stopped fixed deposits from being taken as a promise of appearance before the concerned Court. 

Thus, the applicant was directed to be released on bail subject to his furnishing a personal bond of Rs. One Lac and furnishing of two sureties of Rs. Five lacs each to the satisfaction of the concerned Trial Court/Duty Magistrate. In the alternative, the Court ordered that the petitioner may furnish a personal bond of Rs. One Lac and hand over to the attesting Magistrate, a fixed deposit(s) for Rs. One Lac, made in favour of the Chief Judicial Magistrate of the concerned district. 

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