Can a poor person stand surety in bail matters without having property documents?


Question: Sir, I’m an advocate practising in the magistrate’s Court. I have seen that sometimes, the court does not accept surety of a poor person because he is not able to produce any property document or any fixed deposit or any registration certificate of the vehicle, etc. Is there a way out? Can a poor person stand surety in bail matters without having property documents or RC of a vehicle or fixed deposit etc.?

Answer: The object of taking surety is for the purpose of ensuring of availability of an accused before the Court by the surety whenever the dates of trial are fixed.

In the case of Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 at p. 86 : AIR 1979 SC 1360 : 1979 Cri LJ 1036, the Supreme Court observed that the bail system, as it operates today, is a source of great hardship to the poor and if one really wants to eliminate the evil effects of poverty and assure a fair and just treatment to poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardizing the interest of justice.

In the case of Moti Ram v. State of M.P., AIR 1978 SC 1594 : 1978 Cri LJ 1703 : (1978) 4 SCC 47, the Supreme Court disapproved harsh conditions being imposed for sureties. In this case, for releasing the petitioner on bail, the Magistrate demanded sureties from his own district, rejecting the suretyship of the petitioner’s brother because he and his assets were in another district. Taking strong exception to such a demand, holding that it was not within the power of the Court to reject a surety because he or his estate was situate in a different district or State, and accordingly holding such a demand by the Magistrate to be discriminatory and illegal, the Supreme Court observed as under:

“What is a Malayalees, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Art. 14 protects all Indians qua Indians, within the territory of India. Art. 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.”

There are judgments which clearly lay down that imposing harsh and onerous conditions for grant of bail may not be permissible under law. Even a poor person can be a surety in a bail matter provided he has a verifiable address and is a genuine person.

For example, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66 : 2000 Cri LJ 807 : AIR 2000 SC 714, the Supreme Court disapproved of the practice of imposing onerous conditions for surety in a bail matter; on the facts of the case, it was observed as under:

“We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.”

Recently, in the case of Sagayam v. State, 2017 SCC OnLine Mad 1653 : (2017) 3 CTC 291 : (2017) 176 AIC 631, Madras High Court has held that a Court cannot demand production of property documents from the accused or surety. Nowhere in Section 436 or 437 or 439 or 438 Cr.P.C. or in Form No. 45 appended to Schedule II to the Code of Criminal Procedure, 1973, production of property document, title deeds, etc. either by surety or by the accused has been contemplated. It was further held that:

“So a Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon’ble Supreme Court judgment laid down in Maneka Gandhi v. Union of India (supra).

The Courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual.”

The Madras High Court, in the aforesaid case, further observed that:

“Court can ascertain the genuineness of the sureties. A surety should have a genuine address. He may be asked to produce residential proof. He should not be a vagabond. He should establish his identity. A poor man can be a voter. Likewise, a poor man can be a surety. A surety can be a person without having own house. He can be a tenant. Even a person living in a platform, living in a slum having an acceptable address proof can also stand as a surety.

It cannot be denied that a bogus person should not be accepted as a surety. A person who is offering surety must have acceptable residential proof. He may be a tenant, licensee. A beggar can also stand as surety provided he should have some acceptable residential proof.”

In view of the aforesaid judgments, it should be clear that even a poor person can stand surety in a bail matter, and that it may not be appropriate for the courts to always insist for property documents, RC of the vehicle, etc.

[Note: Some contents in this answer have been taken from the author’s book:  Law of Bail, Bonds, Arrest and Custody (2009 Edition), appx. 1625 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-440-0).]

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers. List of his YouTube Videos.

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