Fixed Deposits Or Electronic Transfers A Bail Condition Likely To Improve Possibility Of Accused's Attendance: Punjab And Haryana High Court

A single judge bench of Punjab and Haryana High Court, presided by Justice Anoop Chitkara has further observed that the advancement in technology has obsoleted the identification through sureties and keeping in mind the menace of securing sureties by payment, substituting surety with fixed deposit/bank transfer/lien will also help in addressing the unethical practices taking place through a corrupt system of unscrupulous stock sureties.

This observation was made in a case pertaining to an appeal filed by the appellant seeking suspension of the order of a Special judge who had pronounced judgment on appellant charged with S.21(b) of NDPS Act and had convicted him with a ten-year imprisonment and INR One lakh fine for possessing 220 grams of Heroin.

Mr. Randeep S. Dhull, the learned Counsel for the appellant submitted that the quantity possessed by the appellant was less than the commercial quantity mentioned in S.2(vii-a) read with the Schedule in the NDPS Act and thus, the rigours of S.37 of the NDPS which mandates a minimum sentence of ten years of imprisonment and minimum fine of INR 1 Lakh for possessing commercial quantity, shall not apply to the accused. In addition to this, the Learned Counsel further submitted that the applicant was a first-time offender and since he had already undergone two years of the sentence, his remaining sentence should be set aside as per S.389 of CrPC. The Counsel had also requested the Court that the applicant be permitted to offer a fixed deposit in place of surety and that the fear of forfeiture of this deposit would encourage him to surrender in case this Court decided to uphold his conviction.

Per Contra, the learned Counsel for State, Mr. Manish Bansal, strongly opposed any suspension of sentence contending that grant of bail would only encourage drug peddlers and since appellant is a resident of West Bengal, it would be challenging to arrest him in case of dismissal of appeal.

Mr. Jasdev Singh Mehndirata, acting as Learned Amicus Curiae in this case submitted that not suspending the sentence citing accused's faraway residence would violate A.21 of the Constitution of India which extends to all persons residing anywhere in India and even encompasses a foreigner. The learned Amicus further stated that given the advent of online identification, the Court while granting him bail, should also give a choice to the accused to either furnish surety bonds or give fixed deposit as per S.445 of CrPC.

After hearing both sides and the learned Amicus, the Court noted that when the quantity is less than commercial, S.37 of NDPS will not be applicable and the factors for bail shall become similar to any regular offence and thus, the court stated that the restrictions of S.37 of NDPS do not apply in the present case. Taking note of the fact that the accused did not abscond the trial and had already completed two years of sentence and the Court observed that on cumulative assessment of all factors, further incarceration of the accused is neither justified nor it will serve any significant purpose and thus the execution of sentence of imprisonment was suspended by this Court, subject to executing a bond for attendance.

On the question of 'whether it can be an option in every case that accused either hands over a fixed deposit in favour of Court or electronically transfer the bond money in account of the Court, instead of furnishing surety',

the Court referred to several case laws, including but not limited to Abhishek Kumar Singh v. State of Himachal Pradesh, Manish Lal v. State of Himachal Pradesh, Pillapan@ Ravikumar v. State, Hussainara Khatoon v. Home secretary to State of Bihar, Moti Ram v. State of M.P., Rajballam Singh v. Emperor, R.R. Chari v. Emperor, Afsar Khan v. State by Girinagar Police, Bangalore, Charles Shobhraj v. State and Srinjay Singh v. State of Nagaland, and specified that Grant of Bail including suspension of sentence is essentially a promise by the accused to the Court to attend the trial and comply with conditions of the Order and that the accused accepts such a contract by furnishing bail bonds and so do their sureties. Court observed that "the sole purpose of a bond is to ensure the accused's presence to attend the trial and undergo imprisonment sentence and courts only insist upon sureties to prevent impersonation. Furthermore, it is easier for a local surety to identify and trace the accused."

Further stating that the most prominent factor for the prevalence of local surety was the pressure from accused's community to ensure accused's appearance before Courts, Court asserted that Aadhaar has already resolved these issues of identity concealment and impersonation. Noting the decreasing dependence of individuals on communities, Court observed that, "the generation 'Z' neither would like to stand as someone's surety nor ask a stranger to stand as their surety." The Court also acknowledged the menace of securing sureties by payment which has now become a flourishing business and remarked "the monetary bail has the edge over surety bonds, given unique identity details, electronic passports, face recognition gadgets and GPS location. The technology has obsoleted the identification through sureties."

Further taking note of absence of comprehensive data demonstrating role of sureties in bringing accused to justice and of the legislative intention to use words "government promissory notes" instead of "money" in S.445 of CrPC (Deposit instead of recognizance), the Court affirmed that the "legislature never expressly stopped fixed deposits from being taken as a promise of appearance before the concerned Court". Referring to S.269-ST of Income Tax Act, 1961, and various other statements, policy decisions and executive instructions revealing Country's journey to a cashless economy, the Court stated that asking an accused to handover a fixed deposit or make an electronic transfer or a bank lien would be in tune with the legislative intention under S.445 CrPC and it will also prevent even one-time defaults as the accused would keep in mind that failure to appear shall lead to forfeiture of money. The single judge bench made it clear that the option to choose between sureties and deposits lies with the accused and not with Court or arresting officer.

Thus, the Court, while releasing the applicant on bail, gave him an option of either furnishing a personal bond of INR 1 Lakh and furnishing two sureties of INR 5 Lakh each, to the satisfaction of concerned Duty Magistrate OR to furnish a personal bond of INR 1 Lakh and handover a fixed deposit of INR 1 Lakh to the attesting Magistrate, made in favour of Chief Judicial Magistrate of the Concerned District. Elaborating further on the fixed deposits, the Court adjudged that such fixed deposits may be made from any bank where State has a majority stake or any well-established and stable private bank, with automatic renewal of principal clause and interest reverting to the linked account. Court also clarified that such fixed deposit need not necessarily be made from applicant's account and that if the fixed deposit is made in physical form, then receipt shall be handed over to the concerned court and if made online, then its printout, attested by any Advocate and countersigned by the accused shall be filed and depositor shall get the online liquidation disabled. It shall also be open for the applicant to apply for substitution of fixed deposit with surety bonds and vice-versa. Court further declared that if petitioner repeats or commits any offence punishable with more than seven years imprisonment or violates any condition in the order then it's permissible for the respondents to apply of cancellation of this order.

It may be noted that Himachal Pradesh High Court has, in most of the orders delivered by Justice Anoop Chitkara (then, a judge of HP High Court), observed that the Courts, while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit.

Choosing between sureties and deposits, the accused is the Queen and let her be, Justice Anoop Chitkara said while granting bail to accused. The judge also observed that the lawyers have duty to apprise the accused of the existence of the provision of a cash deposit in the Code of Criminal Procedure (Section 445 CrPC)

Case Title: Mahidul Sheikh Vs. State of Haryana

Citation: 2022 LiveLaw (PH) 3