Section 10 – Provision as to sureties – Probation of Offenders Act

Comment:

The Code referred to under this section means the Code of Criminal Procedure, 1973 which came into force on 1st April, 1974. This section specifically lays down that for the purposes of bonds and sureties accepted in case of probation under the Probation of Offenders Act, the following sections of the Code of Criminal Procedure, 1973, and the provisions contained therein will be applicable:—

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Section 121 (Cr. P.C.) Power of Magistrate to reject sureties.

Section 123 (Cr. P.C.) Power to release person imprisoned for failing to give security.

Section 124 (Cr. P.C.) Security for unexpired period of bond.

Section 373 (Cr. P.C.) Appeal from orders requiring security or refusal to accept or reject surety for keeping peace or for good behaviour.

Section 446 (Cr. P.C.) Cancellation of bond and bail-bond.

Section 447 (Cr. P.C.) Procedure in case of insolvency or death of surety or when bond is forfeited.

Section 448 (Cr. P.C.) Bond required from minor.

Section 449 (Cr. P.C.) Appeal from orders issued under Section 446 of Cr. P.C.

Where a bond is taken from the surety, the probationer for whom the bond is executed, cannot be penalised for any breach thereof, as it is the surety and not the probationer (i.e., offender) who is guilty of disobedience.

Likewise, attestation of the bond by the probationer simply tantamount to his having knowledge about the execution of such bond by the surety. By executing the bond the surety undertakes to produce the offenders before the Court as and when called upon to do so. It, therefore, follows that if a bond is not taken from the accused (probationer) himself for his appearance in Court, the bond taken from surety to produce the accused before the Court as and when necessary, cannot be held to be valid.

It must be stated that the bond executed by a surety for appearance of the offender in a particular Court shall cease to be operative in the event of transfer of the case to another Court.

The law does not empower the Court to order arrest of surety in the event of forfeiture of bond and his failure to pay the penalty. At the most the Court may, after issuing him a show-cause notice, recover the penalty by issuing a warrant of attachment and sale of his movable property.

Thus the Court has wide discretionary powers under this section in the matter of remitting any portion of the penalty where the accused was subsequently arrested or it was beyond the control of the accused to present himself before the Court concerned on the appointed day or there was no negligence on the part of surety.