A single judge bench of Telangana High Court passed this reportable judgment regarding whether a co-accused be a surety to accused in a criminal case.
From Paras 21-26,
Ayush Mahendra Vs State of Telangana on 05 Jan 2021
21. As discussed supra, the prime object of the surety is to secure the presence of an accused for the purpose of concluding investigation and the trial after filing charge-sheet. A surety should be a fit person. Who is a fit person is not defined or explained anywhere in the Code. Generally, the surety must be a genuine person. He should not be a bogus person. Sureties come to the Court and give undertakings to the Court that he will ensure the presence of accused. If the accused fails to appear before the Court, surety bond executed by the surety will be forfeited. Thus, the Station House Officer has to ascertain the genuineness of surety. It is also relevant to note that there is no prohibition in the Code that the co-accused cannot stand as surety to any accused. It is also relevant to note that the prosecution has not filed any document to show that the mother of the accused is added as accused No. 2 in Crime No. 913 of 2020. Therefore, the Station House Officer, Madhapur Police Station is not justified in refusing to accept the surety of the mother of the accused. The mother of the accused whether she is co-accused or not can stand as a surety.
22. The apprehension of the prosecution is that both the petitioner and her mother are from Lucknow and there is every possibility of accused jumping on bail in which event the Investigating Officer will not be in a position to ensure the presence of the accused in concluding the investigation.
23. In view of the said apprehension, it is relevant to point out that there is provision in the Code to arrest the surety in the event of accused fails to appear before the Investigating Officer or Trial Court for concluding investigation or trial respectively. There is no provision in the Code to take any other step/action against surety except forfeiting the surety amount, and initiating the procedure laid down under Sections 82 and 83 of the Code which is lengthy procedure.
24. At the cost of repetition, as discussed supra, the object surety is to ensure the presence of accused for the purpose of completion of investigation and concluding of trial in case of filing of charge-sheet. The surety should be a fit person and a genuine person. He/She should not be a bogus person. The Court or the Station House Officer has to ascertain and take an undertaking from the surety that he/she will ensure the appearance of the accused for the purpose of completing the investigation and concluding the trial in case of filing charge-sheet. The Station House Officer should be satisfied the genuineness and identity of the surety including residential address of surety. The Station House Officer cannot reject or refuse to accept surety offered by mother of the accused, whether she is a co-accused or otherwise.
25. In the case on hand, the petitioner has filed copies of fixed deposit receipts obtained in the name of the mother of the petitioner, local surety and also filed copies of death certificate of his grandfather, flight tickets etc. After completion of funeral rites of his grandfather, he has reached the Hyderabad to offer sureties. But, the Station House Officer has refused to receive the same. In view of the above discussion, the Station House Officer, Madhapur, cannot refuse to accept the surety offered by the mother of the petitioner whether she is a co-accused or otherwise.
26. In view of the above discussion and also the authoritative principles of law, the Station House Officer, Madhapur Police Station, Cyberabad Commissionerate, is directed to accept the surety of mother of the petitioner-accused in compliance of the order dated 19.11.2020 passed by this Court in Crl. P No. 5782 of 2020. The time granted for surrender of the petitioner in the said order is extended by two weeks from the date of receipt of copy of this order.
Citations: [2021 ALT CRI 1 230], [2021 ALD CRI 1 491], [2021 SCC ONLINE TS 1931]
Earlier Anticipatory Bail Order:Ayush Mahendra Vs State of Telangana on 19 Nov 2020