IMPORTANT POINT
The judgment establishes that the bail system must prioritize personal bonds and ensure the verification of sureties to prevent fraud and discrimination against the poor.

JUDGMENT :

Mr. Pankaj Jain, J.

The present bunch relates to FIRs wherein the allegations against the petitioners are of having conned the Courts. The petitioners are the persons who faked their identity while furnishing surety bonds pursuant to the bail orders passed by the Courts. The menace is widespread. These five bail applications before this Bench is testimony to the said fact. Repeatedly the Constitutional Courts have underlined necessity of separate law relating to bails. The chorus has only grown louder in recent times.

2. Chapter XXXIII of the Code of Criminal Procedure, 1973 deals with provisions related to bail and bonds. Section 441 of the 1973 Code deals with bond of accused and sureties. Section 441A deals with declaration by sureties. Section 443 empowers the Courts to order sufficient bail when that first taken is insufficient. The provisions read as under :

441. Bond of accused and sureties.—

(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an enquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.

441A. 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.

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443. Power to order sufficient bail when that first taken is insufficient.—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 so to do, may commit him to jail.”

3. The aforesaid provisions are supplemented by High Court Rules and Orders. Chapter 10 (Volume III) of High Court Rules and Orders deals with the subject. Rule 9A needs to be perused :

“9A. To avoid abscondence of accused due to furnishing of bogus surety or surety bond by a stock surety, the surety, in all cases under the NDPS Act, the cases in which offence is serious and sentence provided is of more than 10 years imprisonment or the cases under the special enactment like POTA etc. shall furnish two copies of his latest passport size photograph, which is not older than six months before the date of submission, of which one copy shall be retained in the Court record and one copy to be retained by the concerned police station, alongwith one of the following documents:-

1. Passport.

2. Identity Card issued by the Election Commission of India.

3. Permanent Account Number Card, i.e. PAN Card issued by the Income-Tax Department.

4. ATM/ Debit Card or Credit Card issued by any Nationalised or Private Bank of Standing at the National Level, having photograph of the holder thereon.

5. Identity Card issued by the Government Authorities or the Public Statutory Corporations.

6. Any such document, which is ordinarily issued by an Authority after due ver