Bail Granted but Can't Arrange a Surety in Gurugram? How Bail Bonds and Sureties Work Under the BNSS

For many families, the relief of hearing "bail granted" is quickly followed by a new worry. The order says the accused will be released on furnishing a bail bond with one or two sureties of a certain amount. Who can be a surety? What papers are needed? What happens to the surety if the accused does not turn up in court? And what if nobody is able to stand surety at all?

This article explains, in plain language, how bail bonds and sureties work in Gurugram under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC). The rules on bonds are in Chapter XXXV of the BNSS, mainly Sections 484 to 492.

Bail order, bail bond and surety: three different things

• The bail order is the court's decision that the person may be released, along with the conditions of release.
• The bail bond is the written undertaking the accused signs, promising to appear in court on every date and to follow the conditions, for a stated amount. Under Section 485 BNSS (formerly Section 441 CrPC), the accused executes this bond, and where sureties are required, they also bind themselves.
• A surety is a person who guarantees to the court that the accused will appear and follow the conditions. If the accused defaults, the surety can be made to pay the amount stated in the bond.

The release does not actually happen until the bond (and surety bonds, if ordered) are accepted by the court. Under Section 487 BNSS (formerly Section 442 CrPC), once the bond is executed, the person is released, and if they are in jail, the court sends a release order to the jail.

Who can be a surety?

The law does not list fixed qualifications, but the court must be satisfied that the surety is solvent and reliable, that is, a person who can pay the bond amount if required and who has some real connection with the accused. In practice, courts usually accept:

• A family member, relative or friend with a fixed address, often within the jurisdiction
• A person who owns property, or has a steady income or bank balance, of a value broadly matching the bond amount
• An adult who understands what they are signing and is not themselves facing similar proceedings

Under Section 486 BNSS (formerly Section 441A CrPC), every surety must make a declaration before the court about the number of persons for whom they are already standing surety, with relevant details. This helps the court see whether the same person is being used repeatedly as a surety.

Documents a surety is usually asked for

Requirements vary from court to court and case to case, but a surety in the Gurugram District Courts is commonly asked to bring:

1. Identity proof, such as an Aadhaar card, voter ID or passport, with photographs
2. Address proof
3. Proof of solvency, such as a property document (registry, jamabandi or fard for land), a fixed deposit, bank statement, or a vehicle registration certificate, depending on what the court accepts
4. Sometimes, an affidavit or the declaration about other cases in which they are a surety

The court may also ask for the surety's documents to be verified before accepting them. It helps to check with the advocate in advance exactly what the particular court requires, so that the release is not delayed by a missing paper.

What if the bond amount is too high?

Bail that cannot be furnished is no bail in practice. Section 484 BNSS (formerly Section 440 CrPC) says that the amount of every bond must be fixed with due regard to the circumstances of the case and must not be excessive. The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

So if the amount or the number of sureties is beyond the family's reach, an application can be made to the court that passed the order to modify the condition, or to a higher court to reduce it. Courts have repeatedly expressed concern about people who stay in jail even after getting bail only because they cannot arrange sureties, and they can relax such conditions where the facts justify it.

Cash deposit instead of a surety

Under Section 490 BNSS (formerly Section 445 CrPC), the court or officer may permit the person to deposit a sum of money or government promissory notes instead of executing a bond with sureties. This is not available in every case; it is at the discretion of the court, and it does not apply to a bond for good behaviour. It is worth asking about where finding a surety is genuinely difficult.

What is a surety actually liable for?

Standing surety is a serious responsibility, not a formality. If the accused fails to appear or breaks the conditions of the bond, the court can treat the bond as forfeited under Section 491 BNSS (formerly Section 446 CrPC). The procedure is broadly this:

1. The court records its reasons for holding that the bond has been forfeited.
2. It calls on the person bound by the bond, including the surety, to pay the amount or to show cause why it should not be paid.
3. If sufficient cause is not shown and the amount is not paid, the court can recover it as provided in law, which can include attachment and sale of property.

The court also has power to remit part of the penalty and recover only a portion. A surety who receives such a notice should respond, explaining any genuine reason, such as efforts made to produce the accused. Under Section 492 BNSS (formerly Section 446A CrPC), where a bond is forfeited for breach of a condition, the bond and the bail bond are cancelled, and the accused may need to furnish fresh bail.

Can a surety withdraw later?

Yes. Under Section 489 BNSS (formerly Section 444 CrPC), a surety can apply to the Magistrate at any time to be discharged from the bond, either wholly or so far as it relates to the person they stood surety for. The Magistrate then issues a warrant or summons for the accused to be brought before the court, discharges the surety, and asks the accused to find another sufficient surety. If the accused cannot do so, they may be committed to custody.

This is useful where a surety has lost touch with the accused, has fallen out with the family, or is moving away. It is far safer to seek discharge formally than simply to stop keeping track.

Practical tips for families and sureties

• Read the bail order carefully before arranging sureties, noting the amount, the number of sureties and any condition that the surety must be local or a relative.
• Keep originals and photocopies of all documents ready on the day the bonds are to be furnished.
• Only stand surety for someone you trust and can stay in contact with.
• Make sure the accused attends every hearing. Missing a date can lead to a warrant, and in some cases a proclamation, besides forfeiture proceedings against the surety.
• Keep a copy of the bond and the acceptance order.

For a wider explanation of how bail is obtained after arrest, see our earlier article on how regular bail works under the BNSS, and the general overview of criminal cases in Gurugram.