What is a bail bond?
A written promise, signed by the offender or a person
who gives surety of the offender presence in the court when called upon, to pay
a certain amount fixed by a court or police officer. Such amount paid on
execution of bond can be given back once the case ends with some administrative
Surety on the other hand is the indemnifies who ensures the presence of the
offender when called upon by the court. It is he who pays on behalf of the
offender for the bail bond when the offender is incapable of furnishing his
But can accused after getting bail offer a bank guarantee in place of surety
bonds? Bank guarantee is an instrument issued by a Bank in which the Bank agrees
to stand guarantee against the non-performance of some action/performance of a
party. Thus, it is a third-party guarantee which means if neither the surety not
the accused himself could pay for the bond, the bank will.
The court in Afsar
Khan v. State by Girinagar Police, Bangalore
 held that “a reading of the
entire chapter which deals with the provisions relating to bail, does not say
that when a person is released on bail, the Court can also insist upon him to
give cash security”. Further, court cannot demand cash deposit as a condition of
bail. Thus, bank guarantee can be permitted by the court to pay for the bail.
Provisions as to bail bond are provided in chapter 33 of the Criminal Procedure
Code, 1973 (hereinafter referred to as Cr.P.C.). Section 440 of the Code clearly
states that the amount so fixed by the court should take due regard to the
circumstances of the case and should not be excessive. Sessions court and high
courts are empowered under this section that they may direct the magistrate or
the police officer to reduce the amount of the bail bond.
Section 441 of the Code provides that the offender so released on bail or on his
own bond, needs to sign a bond of such money as the police officer or the court
deems necessary for ensuring his presence when at the time mentioned in the bond
or until any time as directed by the court. Thus, bond provides for a surety of
the presence of the offender to the court when called upon either to answer the
charge or otherwise. In case where a minor is required to execute a bond, the
police officer or the court in lieu may execute it only by surety or sureties
only. Bond can contain conditions. Such conditions need to be mentioned in
the bond itself while executing it.
The court is empowered to commit the person released on bail to jail in two
cases: if the surety or sureties are found to be insufficient or afterwards
become insufficient; or of the surety or sureties apply before the court for
the direction of discharge of either whole bond or any part as related to the
applicants. The court, before committing such person to jail may ask him to
find sufficient surety to grant him bail again.
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 of officer may if in lieu of executing such
The courts have to limit their power where there is only delay in payment to the
bail or just because the indemnitor decides not to be responsible for the bail
anymore. However, under Section 466 of the Code, the court can forfeit the bail
bond on the ground that the condition of production of any property is not
fulfilled or if the penalty is not paid without a sufficient cause. Forfeiture
here means the retainment of the bond money even after the case is over. In the
latter case, if even the surety does not come up for the offender rescue then,
the offender may be imprisonment which may extend to 6 months.
It also in the
discretion of the court to remit any amount of penalty after recording the
reasons for doing so and allow the part performance. Further, if the offence for
which the offender has furnished security under Sections 106 or 117 or 360 of Cr.P.C. result into conviction of the offender which resultantly breach any
condition (such as tampering evidence, commission of any offence, hamper
investigation, runs away, commits any act of violence against police) of his
bond, the judgement of conviction shall be used against him and his sureties
unless the contrary to this proved. Such forfeiture of bond is appealable
against as mentioned in Section 449 of the Code. On appellate court has the
power to levy such amount due on a bond for appearance before such court.
But what happens after the bond is forfeited? On the event of death of the
surety or his becoming insolvent or when any forfeiture is carried out in the
above cases, the court shall order such person from whose security was demanded
to furnish a fresh security bond failure of which the magistrate of first class
may proceed as if there been a default in complying with the original order of
Following any forfeiture of bond in case of any breach of the conditions
mentioned in it, result into cancellation of such bond where the alleged
offender thereafter cannot seek release on bail on his own bond except when the
police officer or the court is of the view that no sufficient cause of failure
can arise of the person bound by the bond to comply with its condition.
Above were the provisions of bail bond but what actually happens after an order
is passed in this regard? How to execute a bail bond after the passing of such
When practically seen the execution requires certain documents such as:
- Bail application
- Id proof of the person executing it
- Id proof of the surety giving guarantee for the person
- Demand draft or cheque for the sum to be paid for the bond
- Property papers in case a property is being charged for the purpose of
furnishing the bail bond and tax return receipts.
- Declaration by the surety or sureties
- Letter of undertaking
The surety has to provide for an application of undertaking of the bail bond for
the offender. He is also having to be certified that he is not insolvent and
posses enough property to enable and stand surety. Besides he also has to
declare as an indemnitor he has the knowledge of the conditions on which the
bail bond is executed and that he provides for the surety of fulfilment of the
conditions on behalf the offender. Thus, at police station, after signing the
requisite documents and paying the bond money, the execution of bail is
- 1992 Cr.LJ 1676 (7).
- Rajballam Singh v. Emperor, AIR 1943 Patna 375,
- Section 448 of Cr.P.C.
- Section 443 of Cr.P.C.
- Section 444 of Cr.P.C.
- Section 445 of Cr.P.C.
- Section 450 of Cr.P.C.
- Section 447 of Cr.P.C.
- Section 446A of Cr.P.C.