Bonds, Sureties and Forfeiture
Chapter Seventy
Syllabus topic 3.5, "Provisions as to Bail and Bonds - Section 436 to 450"
Pages 475 to 482 of 699
In one line
Bail works through a written promise backed by somebody else's money, and these sections say how much, from whom, and what happens when the promise is broken.
In exam wording: sections 484 to 496 of the Bharatiya Nagarik Suraksha Sanhita, 2023 govern the amount of a bond, the bonds of the accused and his sureties, discharge from custody, the substitution and discharge of sureties, deposit in lieu of a bond, and the procedure on forfeiture.
Why the law has this at all
Bail is a promise, and a promise from a man who wants to run away is worth nothing by itself. So the law adds two things to it.
The first is money. A bond is an undertaking to pay a sum if the person does not appear, and that sum is what makes the promise cost something. But money used this way has an obvious defect: a rich man is released and a poor man is not, for the same offence. That is why section 484(1) says the amount shall not be excessive and section 484(2) lets the higher Courts reduce what a police officer or Magistrate has demanded, and why section 490 allows a deposit instead of a bond, and why the indigent proviso to section 478(1), in the earlier chapter, dispenses with sureties altogether.
The second is a surety, somebody else who stands to lose if the accused does not come. That works, and it created its own trade: the professional surety who stands for dozens of accused for a fee, and whose signature therefore secures nothing. Section 486 is the answer: he must declare, before the Court, how many people he has stood surety for, including this accused.
Some words this chapter uses
A bond is the person's own undertaking; a bail bond adds sureties. Section 485(1) requires both.
Forfeiture is the Court's finding that the condition has been broken, which makes the penalty payable.
Recognizance in the headings to sections 490 and 496 is the older name for a bond.
Sections 484 to 487: the bond, the sureties, and release
Section 484(1). The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
Sub-section (2). The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.
Section 485(1), the bonds. Before any person is released on bond or bail bond, a bond for such sum as the police officer or Court thinks sufficient shall be executed by him, and, when he is released on bond or bail bond, by one or more sufficient sureties, conditioned that he shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed.
Bonds, Sureties and Forfeiture
Sub-section (2). Where any condition is imposed for the release, the bond shall also contain that condition.
Sub-section (3). If the case so requires, the bond shall also bind him to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
Sub-section (4), testing the sureties. For determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts about their sufficiency or fitness, or, if it considers necessary, may hold an enquiry itself or cause one to be made by a subordinate Magistrate.
Section 486, the declaration. 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.
Section 487(1), release. As soon as the bond has been executed, the person for whose appearance it was executed shall be released; and where he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, who on receipt of the order shall release him.
Sub-section (2). Nothing in this section, section 478 or section 480, requires the release of a person liable to be detained for some matter other than that in respect of which the bond was executed.
Sub-section (2) is the answer to a common question. A bail order in one case does not open the gate; a man wanted in another matter stays in.
Sections 488 to 490: changing the security
Section 488, insufficient sureties. If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it, and may order him to find sufficient sureties, and on his failing to do so may commit him to jail.
Section 489, discharge of sureties.
Sub-section (1). All or any of the sureties may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
Sub-section (2). On such an application the Magistrate shall issue his warrant of arrest directing that the person released be brought before him.
Sub-section (3). On his appearance pursuant to the warrant or on his voluntary surrender, the Magistrate shall direct the bond to be discharged, wholly or as regards the applicants, and shall call upon him to find other sufficient sureties; if he fails, the Magistrate may commit him to jail.
Bonds, Sureties and Forfeiture
Section 490, deposit instead of a bond. Where a person is required to execute a bond or bail bond, the 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 of such amount as it fixes in lieu of executing the bond.
The exception in section 490 is examinable: a bond for good behaviour cannot be replaced by a deposit. Good behaviour is precisely what money cannot buy.
Sections 491 to 493: forfeiture
Section 491(1), the finding. Where:
(a) a bond for appearance, or for production of property, before a Court is proved, to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, to have been forfeited; or (b) in respect of any other bond, it is so proved to the satisfaction of the Court which took it, or a transferee Court, or of the Court of any Magistrate of the first class,
the Court shall record the grounds of such proof, and may call upon any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation. A condition for appearance or production before a Court includes appearance or production before any Court to which the case may subsequently be transferred.
Sub-section (2), recovery. If sufficient cause is not shown and the penalty is not paid, the Court may recover it as if it were a fine imposed under the Sanhita. Proviso: where the penalty is not paid and cannot be so recovered, the surety shall be liable, by order of the Court ordering the recovery, to imprisonment in civil jail for a term which may extend to six months.
Sub-section (3). The Court may, after recording its reasons, remit any portion of the penalty and enforce payment in part only.
Sub-section (4). Where a surety dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
Sub-section (5), the certified copy. Where a person who furnished security under section 125, 136 or 401 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of it under section 494, a certified copy of the judgment may be used as evidence in proceedings under this section against his surety or sureties; and where it is so used, the Court shall presume that the offence was committed by him unless the contrary is proved.
Bonds, Sureties and Forfeiture
Section 492, cancellation. Without prejudice to section 491, where a bond for appearance of a person in a case is forfeited for breach of a condition:
(a) the bond executed by that person, and any bond executed by his sureties in that case, shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the police officer or Court is satisfied that there was no sufficient cause for the failure to comply with the condition.
Proviso: subject to the other provisions of the Sanhita, he may be released in that case on a fresh personal bond for such sum, and a bond by one or more sureties, as the police officer or the Court thinks sufficient.
Section 493, insolvency, death or forfeiture. When a surety becomes insolvent or dies, or when a bond is forfeited under section 491, the Court which took the bond, or a Magistrate of the first class, may order the person from whom the security was demanded to furnish fresh security in accordance with the directions of the original order; and if it is not furnished, may proceed as if there had been a default in complying with the original order.
Sections 494 to 496: a child, an appeal, and levy
Section 494. Where the person required to execute a bond is a child, the Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.
Section 495, appeal. All orders passed under section 491 shall be appealable:
(i) in the case of an order made by a Magistrate, to the Sessions Judge; (ii) in the case of an order made by a Court of Session, to the Court to which an appeal lies from an order made by that Court.
Section 496, levy. The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond for appearance or attendance at that High Court or Court of Session.
A worked example
Nitin is granted bail. The Magistrate fixes the bond at two lakh rupees with two sureties.
Is that lawful? It must be fixed with due regard to the circumstances of the case and must not be excessive, section 484(1). If it is, the High Court or Court of Session may direct that the bail be reduced, sub-section (2).
Who signs what? Nitin executes his own bond, and, being released on a bail bond, one or more sufficient sureties execute theirs, conditioned that he attend at the time and place mentioned and continue to attend, section 485(1). Any condition imposed must appear in the bond, sub-section (2).
Bonds, Sureties and Forfeiture
How does the Court test the sureties? It may accept affidavits, or hold an enquiry itself or through a subordinate Magistrate, section 485(4). And each surety must declare how many persons he has stood surety for, including Nitin, section 486.
He cannot arrange sureties but has cash. The Court may permit a deposit of money or Government promissory notes in lieu of the bond, section 490, unless it is a bond for good behaviour.
The bonds are executed. Nitin shall be released, and the Court issues an order of release to the officer in charge of the jail, section 487(1). But he is also wanted in another case, so he is not let out: section 487(2) does not require release where he is liable to be detained for some other matter.
One surety turns out to be worthless. The Court may issue a warrant, bring Nitin before it, order him to find sufficient sureties, and commit him to jail if he fails, section 488.
The other surety wants out. He may apply to a Magistrate to discharge the bond; the Magistrate issues a warrant, and on Nitin's appearance or surrender discharges the bond, calls on him to find other sureties, and may commit him to jail if he fails, section 489.
Nitin absconds. The Court, satisfied that the bond is forfeited, records the grounds and calls on those bound to pay the penalty or show cause, section 491(1). If cause is not shown and the penalty is not paid, it is recovered as a fine; and if it cannot be recovered, the surety may be imprisoned in civil jail for up to six months, sub-section (2). The Court may remit part of the penalty for reasons recorded, sub-section (3).
A surety had died before the forfeiture. His estate is discharged from all liability, sub-section (4).
What happens to the bonds? They stand cancelled, and Nitin cannot be released again on his own bond alone in that case if there was no sufficient cause for the failure, section 492; but he may be released on a fresh personal bond with sureties, proviso.
And if a surety merely becomes insolvent or dies? The Court or a first class Magistrate may order fresh security, failing which it proceeds as on a default under the original order, section 493.
Bonds, Sureties and Forfeiture
Nitin is a child. The Court may accept a bond executed by a surety or sureties only, section 494.
The surety wants to challenge the forfeiture order. He may appeal, to the Sessions Judge from a Magistrate's order, section 495.
And the bond was for appearance before the High Court. That Court may direct any Magistrate to levy the amount due, section 496.
Distinctions
| Section 488 | Section 489 | |
|---|---|---|
| Who sets it in motion | The Court, on finding sureties insufficient | The sureties, by application to a Magistrate |
| Trigger | Insufficiency through mistake, fraud or otherwise, or arising later | The surety's own wish to be discharged |
| Procedure | Warrant, order to find sufficient sureties, jail on failure | Warrant, discharge of the bond, call for other sureties, jail on failure |
| Stage of forfeiture, section 491 | What happens |
|---|---|
| Proof of forfeiture | The Court records the grounds |
| Next | Call on the person bound to pay or show cause |
| No sufficient cause and no payment | Recovered as a fine |
| Cannot be recovered | Civil jail up to six months for the surety |
| Court's discretion | Remit part of the penalty, for reasons recorded |
| Surety died before forfeiture | Estate discharged from all liability |
| Bond | Bail bond | |
|---|---|---|
| Who executes | The person himself | The person and one or more sufficient sureties |
| Where used | An indigent accused, s.478(1) proviso; a first-time offender under s.479; release to hear judgment, s.480(7) | The ordinary release on bail |
| Substitute | A deposit of money or Government promissory notes, except a bond for good behaviour, s.490 | For a child, a bond by sureties only, s.494 |
What this does NOT mean
A bond is not a price for liberty. Section 484(1) requires the amount to be fixed with due regard to the circumstances and not to be excessive, and section 484(2) lets the higher Courts reduce it.
A deposit does not replace every bond. Section 490 excludes a bond for good behaviour.
Bail in one case is not a general release. Section 487(2) preserves detention for some other matter.
Forfeiture is not automatic recovery. The Court must record the grounds, call for cause, and may remit part of the penalty; and a surety who died before the forfeiture leaves an estate free of liability.
And a forfeited bond does not end the possibility of bail. The proviso to section 492 allows release on a fresh personal bond with sureties; what is lost is release on his own bond alone.
Quick revision
- 484: the bond amount is fixed with due regard to the circumstances and shall not be excessive; the High Court or Court of Session may direct a reduction.
- 485: the person executes a bond, and on a bail bond one or more sufficient sureties, conditioned to attend and continue to attend; conditions go into the bond; it may bind him to appear at the High Court, Court of Session or other Court; sufficiency tested by affidavit or enquiry.
- 486: every surety declares before the Court how many persons he has stood surety for, including the accused.
- 487: release on execution of the bond, by an order to the officer in charge of the jail; not where he is liable to be detained in another matter.
- 488 and 489: insufficient sureties, warrant, fresh sureties, jail on failure; a surety may apply to be discharged, with the same consequence for the accused.
- 490: a deposit of money or Government promissory notes in lieu of a bond, except a bond for good behaviour.
- 491: record the grounds, call to pay or show cause, recover as a fine, civil jail up to six months if irrecoverable; remit part for reasons recorded; a surety dying before forfeiture leaves the estate discharged; a certified copy of a conviction is evidence against sureties under ss.125, 136 and 401, with a presumption.
- 492: forfeiture cancels the bonds, and bars release on his own bond alone where there was no sufficient cause, but a fresh bond with sureties is possible.
- 493 to 496: fresh security on a surety's insolvency, death or on forfeiture; a child's bond may be by sureties only; appeal from section 491 orders to the Sessions Judge from a Magistrate; the High Court or Court of Session may direct a Magistrate to levy the amount due.
Bonds, Sureties and Forfeiture
Test yourself
1. Can a Magistrate fix any amount he likes as bail? No. Section 484(1) requires the amount to be fixed with due regard to the circumstances of the case and not to be excessive, and section 484(2) allows the High Court or Court of Session to direct that the bail required be reduced.
2. What must a surety declare? The number of persons to whom he has stood surety, including the accused, with all the relevant particulars, in a declaration before the Court, section 486.
3. When may a deposit be taken instead of a bond? Whenever a Court or officer requires a bond, except in the case of a bond for good behaviour, section 490.
4. What does the Court do when a bond is forfeited? It records the grounds of proof of forfeiture and may call on any person bound by the bond to pay the penalty or show cause why it should not be paid; if no sufficient cause is shown and the penalty is not paid, it may recover it as a fine, and if it cannot be recovered the surety may be imprisoned in civil jail for up to six months, section 491.
Bonds, Sureties and Forfeiture
5. Is a dead surety's estate liable? Not where he died before the bond was forfeited; section 491(4) discharges his estate from all liability in respect of the bond.
6. What is the effect of a forfeiture on future bail in that case? The bond of the accused and of his sureties in that case stand cancelled, and he shall not be released only on his own bond if the police officer or Court is satisfied that there was no sufficient cause for the failure; but he may be released on a fresh personal bond with such sureties as are thought sufficient, section 492.
7. Where does an appeal lie against an order of forfeiture? From a Magistrate's order, to the Sessions Judge; from an order of a Court of Session, to the Court to which an appeal lies from an order of that Court, section 495.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.