Cash can be deposited if one is unable to get a surety for grant of bail: Uttarakhand High Court

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 13th DAY OF JANUARY 2021 HON’BLE SHRI JUSTICE ALOK KUMAR VERMA J. BEFORE: CRIMINAL MISC. APPLICATION NO. 902 OF 2020 David Morrison .......Applicant By Shri Lalit Sharma learned Advocate) AND : State of Uttarakhand …....Respondent By Shri Deepak Bisht learned Brief Holder for the State) The Criminal Misc. Application No. 9020 coming on for hearing this day Hon’ble Shri Justice Alok Kumar Verma delivered the following Order: This Criminal Misc. Application is filed by the applicant accused to set aside the order dated 08.10.2020 passed by learned Additional Chief Judicial Magistrate Kashipur in Criminal Case No.40619 “State vs. David Morrison and others” whereby the application of the applicant accused to release the applicant accused on bail after depositing cash amount in lieu of executing surety bond. Heard Mr. Lalit Sharma learned counsel for the applicant and Mr. Deepak Bisht learned Brief Holder for the State. The applicant accused moved an application before this Court under Section 439 of the Code of Criminal Procedure 1973 for grant of regular bail in connection with Case Crime No.44 of 2019 registered with Police Station Kunda District Udham Singh Nagar for the offence punishable under Sections 420 120 B of the I.P.C. Section 66 of the Information Technology Act 2000 and Section 14 of the Foreigners Act. The said Bail Application No.721 of 2020 was allowed on 23.07.2020 on the following conditions : “8. The bail application is allowed on the following conditions: i) the applicant shall be released on bail on furnishing a bond with two sureties of like amount one of whom must be a local surety to the satisfaction of the court concerned ii) after the passport is re issued as per rules the Foreigners Regional Registration Officer is directed to endorse the Visa of the applicant according to law prior to release from the jail concerned and such endorsement can carry a limited validity co terminus with the completion of the trial. The superintendent of jail concerned shall ensure that the applicant is released only after endorsement of his Visa. iii) after re issue his passport the applicant shall surrender it before the court concerned and shall report his place of residence before the court concerned and the local police station. iv) the applicant shall report his presence before the local police station every month. 9. The applicant accused shall be produced in custody before the competent authority for the purpose of re issuance of his passport for which Superintendent of Police of the district concerned will take necessary action. The SSP SP of the district concerned will be informed through the learned counsel appearing for the State.” Learned counsel for the applicant submitted that passport of the applicant accused is deposited before the concerned Magistrate and because the applicant is foreigner he is unable to arrange sureties. Therefore he offered to deposit cash amount in lieu of executing surety bond. The said prayer of the applicant accused has been rejected by the impugned order. Section 441 of the Code provides that 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 a person so directed to execute the bond either with surety or without surety is unable to furnish surety then under Section 445 of the Code he is permitted to deposit a sum of money or Government promissory note. In the first instance the applicant accused was directed to furnish surety bond. He is unable to execute 4 surety bond. The offer to deposit cash surety came from the applicant accused. Section 445 of the Code is meant for the benefit of the person who is unable to find a surety. The applicant accused is a foreigner and he is not able to furnish sureties. The same does not debar him from being admitted to bail. In the facts and circumstances of the case the order dated 08.10.2020 passed by learned Additional Chief Judicial Magistrate Kashipur District Udham Singh Nagar in Criminal Case 4069 of 2019 “State vs. David Morrison and others” is liable to be set aside. Accordingly the impugned order dated 08.10.2020 is set aside. The applicant accused is permitted to deposit the cash amount a reasonable amount to the satisfaction of the court concerned in lieu of executing surety bonds. 10. Accordingly this Criminal Misc. Application stands allowed in the terms mentioned above. 

Summary: In instances where a person is unable to find a surety, he/she can take the advantage of Section 445 of the Cr.P.C which allows depositing cash for grant of bail. This was held by the High Court of Uttarakhand in David Morrison v State of Uttarakhand [Criminal Misc. No.902 of 2020} by a single bench of Hon’ble Justice Alok Kumar Verma. The applicant was accused of offences punishable under Sections 420, 120-B of the Penal Code, 1860, Section 66 of the Information Technology Act, 2000 and Section 14 of the Foreigners Act, 1946 in a Criminal Case of 2019. This criminal application was filed in response to the order of the Judicial Magistrate while dealing with the accused applicant who pleaded for bail. The bail was granted as per a Bail Application filed, on the condition of “furnishing a bond with two sureties of like amount, one of whom must be a local surety, to the satisfaction of the court concerned”. It must be noted here that the accused was a foreigner and the lower court did not take special cognizance of this fact. Another condition involved was that the passport should be deposited before the concerned Magistrate and because the applicant is a foreigner, he was unable to arrange sureties. Thereafter, the same application to deposit cash instead of bond to be released on bail was filed before the Additional Chief Judicial Magistrate, which was rejected and this was challenged in the present petition. Section 441 of the Cr.P.C states that when any person is released on a bond of his name, the execution of that bond shall also take place within the stipulated time, at the failure of which the bail can be rightfully cancelled. The applicant has informed the Court that the passport was deposited before the concerned Magistrate and because the applicant was a foreigner, he was unable to arrange sureties. Therefore, he offered to deposit cash amount in lieu of executing surety bond. Counsel for the applicant argued on the basis of Section 445 of Criminal Procedure Code, 1973. This provision reads ‘Deposit instead of Recognizance’ and it was contended that when the applicant was unable to provide surety because of his nationality, Section 445 of the Code will come into play. Therefore, the cash deposit must be allowed instead of surety and bail should be granted This court observed that “The applicant-accused is a foreigner and he is not able to furnish sureties. The same does not debar him from being admitted to bail.” So when a person is unable to execute the bond with surety, then he/she should be allowed to deposit the required sum of money in lieu of executing the bond to obtain bail.
It was held by the court that, “the applicant-accused is permitted to deposit the cash amount, a reasonable amount, to the satisfaction of the court concerned, in lieu of executing surety bonds”.