The provisions

Section 485: before any person is released on bond or bail bond, a bond for such sum of money as the police officer or Court thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties, conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed.

Proviso to section 478: where a person accused of a bailable offence is unable to give bail within a week of the date of his arrest, it shall be sufficient ground for the officer or the Court to presume that he is an indigent person — and he shall be released on his executing a bond without sureties.

Section 484(1): the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 484(2): the High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

Section 490: where a person is required to execute a bond with or without sureties, the Court or officer may permit him to deposit a sum of money or Government promissory notes instead — except where the bond is for good behaviour.

📖 Kadra Pahadiya v. State of Bihar, (1981) 3 SCC 671

Facts: It came to the Court’s notice that undertrial prisoners were being held in custody for very long periods, some in fetters, in cases in which they had been granted bail but were unable to furnish the bonds and sureties required, and in which they had no legal representation at all.

Held: The Supreme Court held that the continued detention of undertrial prisoners who have been granted bail but cannot furnish sureties is a denial of their right under Article 21, and that an order of bail which the prisoner cannot comply with leaves him in exactly the position of one refused bail. The Court held that the requirement of monetary bail with sureties operates against the poor, who have no property and no persons of means willing to stand for them, and that courts must consider whether release on a personal bond would serve. It directed that undertrial prisoners in such cases be identified and released on their own bonds where appropriate, that legal aid be provided to those without representation, and that the practice of keeping undertrials in fetters be discontinued save where strictly justified. The Court emphasised that the object of bail is to secure attendance, and that where that can be achieved by a personal bond, requiring more serves no purpose the law recognises.

Ratio: The continued detention of a prisoner granted bail who cannot furnish sureties denies his right under Article 21, leaving him in the position of one refused bail. Monetary bail with sureties operates against the poor, and release on a personal bond should be considered.

⚠ The local surety problem

The requirement of a local surety is the condition which most often defeats an order of bail in practice.

A migrant worker, a person from another district, or one with no family nearby has no means of producing one — however modest the amount of the bond.

The condition is usually imposed to ensure that the surety can be found and proceeded against if the accused absconds. But where that object can be achieved otherwise — by a surety from elsewhere, by a deposit under section 490, or by a personal bond with conditions as to reporting — insisting on a local surety serves no purpose except to keep him in custody.

And section 489 should be kept in mind on the other side: a surety may apply at any time to be discharged, whereupon the accused must find others — so an arrangement which worked at the outset may fail months later, and the accused may find himself back before the Court.

The position stated shortly

1. A bail bond binds the accused and one or more sufficient sureties; a personal bond binds the accused alone.

2. Section 485: a bond is executed by the person, and where the release is on bail, by sureties, conditioned that he shall attend and shall continue so to attend.

3. Proviso to section 478: inability to give bail within a week in a bailable offence is ground for presuming indigence, and release follows on a bond without sureties.

4. Section 479 first proviso: a first-time offender completing one-third of the maximum period is released on bond, not on bail.

5. Section 484(1): the amount shall be fixed with due regard to the circumstances of the case and shall not be excessive.

6. Section 484(2): the High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

7. Section 490 permits a deposit of money or Government promissory notes in lieu of a bond, except for good behaviour.

8. An order of bail the prisoner cannot comply with leaves him in the position of one refused bail, and denies his right under Article 21: Kadra Pahadiya.

9. Monetary bail with sureties operates against the poor, and release on a personal bond should be considered where attendance can be secured by it.

10. And section 489 permits a surety to be discharged at any time, so an arrangement which worked at the outset may fail later and require fresh sureties.