Surety Can't Be Held Liable For Entire Bond Merely Because Parolee Committed Another Crime; Forfeiture Must Be Proportionate: P&H High Court
The Punjab and Haryana High Court has held that forfeiture of a surety bond furnished for a prisoner's parole cannot be directed for the entire amount in a mechanical manner, and that the authority concerned must exercise its discretion on quantum judicially, having regard to whether the surety was guilty of any deliberate default, negligence or connivance in the breach.Justice Manisha Batra...
The Punjab and Haryana High Court has held that forfeiture of a surety bond furnished for a prisoner's parole cannot be directed for the entire amount in a mechanical manner, and that the authority concerned must exercise its discretion on quantum judicially, having regard to whether the surety was guilty of any deliberate default, negligence or connivance in the breach.
Justice Manisha Batra was hearing a petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of an order of the District Magistrate, Rohtak, forfeiting surety amounts of Rs. 2,00,000 furnished by each of the two petitioners for a convict granted parole.
The amount recoverable from each petitioner was reduced from Rs. 2,00,000 to Rs. 50,000, with a direction that any excess amount already recovered be refunded.
The Court noted, "the impugned order proceeds primarily on the premise that the parolee allegedly involved himself in another criminal case during the period of parole. However, the order does not record any finding that the present petitioners had either facilitated such conduct, had knowledge of the alleged criminal activity, or had in any manner connived with the parolee in violating the conditions of parole. There is equally no finding that the petitioners had intentionally failed to discharge any obligation undertaken by them under the surety bonds."
The petitioners had stood surety when convict Sandeep, undergoing sentence in a case involving offences under Sections 506, 376-D and 366 IPC, was granted three weeks' parole in April 2020. During the parole period, a fresh FIR came to be registered against the convict for offences including murder under the IPC and the Arms Act.
On the above basis, the Jail Superintendent sought action against the sureties under Section 10(2)(c) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, and the District Magistrate, after issuing show cause notices, directed forfeiture of the full surety amount from each petitioner along with recovery proceedings.
Counsel for the petitioners argued that the forfeiture order was passed without any meaningful inquiry or finding of wilful breach, that mere registration of a fresh FIR against the parolee (with the allegations yet to be adjudicated) could not by itself justify forfeiture, and that a surety's obligation does not extend to policing the parolee's personal conduct. It was also pointed out that the parolee had in any event been taken back into custody during the parole period itself, substantially fulfilling the object of the surety.
The State defended the order as having been passed strictly in accordance with the 1988 Act and after due opportunity of hearing to the petitioners, and denied any violation of natural justice.
Relying on the Supreme Court's decisions in Mohammed Kunju v. State of Karnataka, (1999) 8 SCC 660, and Ram Lal v. State of U.P., AIR 1979 SC 1498, the Court reiterated that a surety's undertaking is independent and enforceable, but that an authority directing forfeiture is not bound to recover the entire bonded amount in every case, it retains discretion to remit or reduce the penalty depending on the facts, to be exercised judicially and on sound principles.
The Court noted that while a surety cannot escape all consequences merely because the breach was committed by the parolee, a surety is also not expected to exercise continuous surveillance over an adult parolee once the authority itself has granted release.
It observed that the impugned order recorded no finding that the petitioners had connived in, facilitated, or had knowledge of the parolee's alleged criminal conduct, nor did it assign any reasons for forfeiting the maximum amount rather than a proportionate sum.
Holding that recovery of the entire surety amount was, in the circumstances, unduly harsh and disproportionate, the Court modified the impugned order.
Case Title: Shamsher Singh and another v. State of Haryana Citation:
Counsel for Petitioners: Mr. Dharamvir Sharma, Advocate Counsel for Respondent-State: Mr. Neeraj Poswal, AAG, Haryana