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

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, the Himachal Pradesh High Court in Abhishek Kumar Singh vs. State of Himachal Pradesh in Cr.MP(M) No. 1017 of 2020 delivered on July 30, 2020 has made it absolutely clear that even accused has a right to live with dignity. It also made it very clear that begging or pestering before someone to stand as a surety comes at the cost of pride and so the Courts while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit. Very rightly so!

To start with, Justice Anoop Chitkara of Himachal Pradesh High Court who authored this latest, landmark and laudable judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, a permanent resident of West Bengal, who is under incarceration for more than six months for committing a white-collar crime, has come up before this Court, seeking regular bail.”

While elaborating on the FIR lodged, it is then pointed out in para 2 that, “Based on a complaint, the police arrested the petitioner on 10th January 2020, in FIR No. 68 of 2019, dated 25.08.2019, registered under Sections 420, 120-B of Indian Penal Code, 1860 (IPC), in Police Station Nirmand, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offences.”

In hindsight, it is then pointed out in para 3 that, “Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 23.3.2020, Ld. Additional Sessions Judge, Kinnaur at Rampur Bushehar, HP, dismissed the petition, primarily because the amount involved is enormous and there is possibility of tampering the evidence.”

For the sake of clarity, it is then pointed out in para 4 that, “I have read the status report(s) and heard counsel for the parties, as well as Ld. Amicus Curiae.”

More seriously, while dwelling on the facts of the case, it is then noted in para 5 that, “Briefly, the allegations against the petitioner are that he made phone calls from various numbers to the complainant, befooled him to share one-time passwords (OTPs) received by him, and subsequently withdrew Rs. 9,87,000/- from his bank accounts.” Also, while mentioning about his previous criminal history, it is then stated in para 6 that, “As per status report, the petitioner has a similar case registered against him.”

Be it noted, it is then observed in para 15 that, “While deciding bail, the Courts cannot discuss the evidence threadbare. The difference between the order of bail and a final verdict is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes.”

Interestingly enough, it is then laid bare in para 16 that, “The Police have recovered an amount of Rs. 78,000/- and after that, the accused is in judicial custody for the last more than six months.”

Crucially, it is then also made clear in para 17 that, “Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. The nature of the offence also does not restrict bail. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose.”

Needless to say, it is then enunciated in para 18 that, “Without commenting on the merits of the case, the fact that the investigation is almost complete and the accused is in jail for a considerable period, coupled with the on going situation due to the Covid-19 pandemic, would make out a case for bail.”

To be sure, it is then stipulated in para 19 that, “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.”

Quite ostensibly, it is then rightly observed in para 20 that, “Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”

While explaining the drawbacks of bonds and simultaneously dwelling on the benefits of monetary bail, it is then envisaged in para 24 that, “It is beyond cavil that the sole purpose of a bond is to ensure presence of accused to attend the trial. In rapidly changing times, people travel more, covering long distances. It exposes them to the risk of being arraigned as accused in locations far away from native places. With unique identity details, monetary bail is even better. It would also address the unethical system of unscrupulous stock sureties, throwing them out of questionable practices.”

It would be pertinent to note that it is then palpably made clear in para 25 that, “Even the Legislature was aware of the menace of stock sureties and with a view to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A CrPC, 1973 which read 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.”

While applauding the legislature, it is then  brought out in para 26 that, “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 him, by incorporating S. 445 of CrPC, 1973, which reads as under:

S. 445. Deposit instead of recognizance. – When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.”

While continuing in the same vein to further enhance the argument to do away with the sureties bond, it is then stated in para 27 that, “The world is passing through the 4th technological revolution, with future unfolding before us and entering the internet of things. The database of AADHAR, PAN, and Passports ensures individuals’ identity, obsoleting the identification through sureties.”

Going forward, it is then brought out in para 28 that, “Siddhant Maniktala, in his paper ‘Relevance of sureties in criminal jurisprudence when every person in India has an identity’, (Supremo Amicus, Volume 17), writes, Aadhaar may replace surety bond as a means of getting bail because his identity has been established and with the personal data secured with the UIDAI, it will not be difficult to track down the accused in case of his fleeing from justice. It seems much important and a much crucial reform to liberalise bail laws in India. After the introduction of Aadhar, solely generated by UIDAI, (Unique Identification Authority of India) which is a unique identification proof of an individual, the need of surety for granting bail becomes debatable.”

More crucially, it is then rightly underscored in para 29 that, “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.”

No doubt, it is then  rightly maintained in para 38 that, “The purpose of a cash bond is not to enrich the State’s coffers but to secure the accused’s presence. 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.”

Truth be told, it is then conceded in para 39 that, “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 ED. 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.”

Most crucially, it is then very rightly underscored in para 40 that, “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.”

Equally significant if not more is what is then stated in para 43 that, “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 deprives her of personal liberty despite being admitted to bail.”

In conclusion, the long and short of this noteworthy judgment is that the surety system of securing bail comes at a great cost of pride of the accused who has to beg before someone to make him/her ready to stand as surety. A more feasible and far better option would be to allow accused to furnish cash deposits for securing bail! Also, it should be left on the accused as to what option he/she wants to exercise to secure bail! Very rightly so!

Sanjeev Sirohi

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