Section 140 – Power to Reject Sureties

Introduction

Section 140 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of a Magistrate to refuse or reject a surety offered for the purposes of a bail bond under the preventive-security provisions.

The provision allows a Magistrate to refuse to accept a proposed surety, or to reject a surety who was previously accepted, where the surety is found to be an unfit person for the purposes of the bail bond.

However, this power is not arbitrary. Section 140 requires an inquiry into the fitness of the surety, reasonable notice to the concerned persons, consideration of the evidence, and recording of reasons before the surety is refused or rejected.

Meaning of Section 140

A surety is a person who undertakes responsibility in relation to the bail bond of another person.

Section 140 empowers the Magistrate to refuse to accept a proposed surety or reject a previously accepted surety if the Magistrate finds that the surety is unfit for the purposes of the bail bond.

The provision also establishes a procedure that must be followed before such rejection takes place.

Statutory Basis

Section 140 forms part of Chapter IX of BNSS, which deals with security for keeping the peace and for good behaviour.

The relevant connected provisions include:

Provision	Subject
Section 125	Security for keeping peace on conviction
Section 126	Security for keeping peace in other cases
Section 127	Security for good behaviour from persons disseminating certain matters
Section 128	Security for good behaviour from suspected persons
Section 129	Security for good behaviour from habitual offenders
Section 130	Order to be made
Section 135	Inquiry as to truth of information
Section 136	Order to give security
Section 137	Discharge of person informed against
Section 138	Commencement of period for which security is required
Section 139	Contents of bond
Section 140	Power to reject sureties
Section 141	Imprisonment in default of security
Section 142	Power to release persons imprisoned for failing to give security
Section 143	Security for unexpired period of bond

Object and Purpose

The purpose of Section 140 is to ensure that the surety furnished for a bail bond is fit and capable of fulfilling the responsibility undertaken.

The provision balances two interests:

• ensuring that an appropriate and reliable surety is available; and
• protecting the surety and the person offering the surety from arbitrary rejection.

Therefore, the Magistrate must follow the prescribed inquiry and notice requirements before rejecting the surety.

Essential Elements

1. Power of the Magistrate

A Magistrate may:

• refuse to accept a surety who is offered; or
• reject a surety who has already been accepted by the Magistrate or by the Magistrate’s predecessor.

The power is available in relation to proceedings under Chapter IX.

2. Ground of Rejection

The statutory ground is that the surety is an unfit person for the purposes of the bail bond.

The rejection must therefore be based on the fitness of the surety rather than on an arbitrary or irrelevant consideration.

3. Inquiry into Fitness

Before refusing to accept or rejecting the surety, the Magistrate must either:

• conduct an inquiry on oath into the fitness of the surety; or
• cause such an inquiry to be conducted and obtain a report from a Magistrate subordinate to him.

This inquiry is a mandatory procedural safeguard.

4. Reasonable Notice

Before the inquiry is held, reasonable notice must be given to:

• the surety; and
• the person by whom the surety was offered.

This gives the concerned persons an opportunity to participate in the inquiry.

5. Recording of Evidence

During the inquiry, the substance of the evidence produced must be recorded.

The Magistrate must therefore base the decision on material placed before him rather than merely on an unsupported assumption regarding the surety’s fitness.

6. Satisfaction of the Magistrate

After considering:

• the evidence produced before him;
• the evidence recorded by a Magistrate deputed to conduct the inquiry, where applicable; and
• the report of such Magistrate, if any,

the Magistrate must determine whether the surety is unfit.

7. Reasons Must Be Recorded

If the Magistrate refuses to accept or rejects the surety, the order must record the reasons for doing so.

This requirement promotes transparency and facilitates judicial scrutiny of the decision.

Procedure Under Section 140

The procedure can be understood in the following steps:

1. A person offers a surety for the purposes of a bail bond.
2. The Magistrate has reason to consider whether the surety is fit.
3. Before rejecting the surety, an inquiry into the surety’s fitness is conducted.
4. The Magistrate may conduct the inquiry himself or have it conducted by a subordinate Magistrate.
5. Reasonable notice is given to the surety and to the person who offered the surety.
6. The evidence produced during the inquiry is recorded.
7. The Magistrate considers the evidence and, where applicable, the report of the subordinate Magistrate.
8. If the surety is found fit, the surety is not rejected on that ground.
9. If the surety is found unfit, the Magistrate may refuse to accept or reject the surety.
10. The Magistrate must record reasons for the refusal or rejection.

Rejection of a Previously Accepted Surety

Section 140 also deals with a situation where the surety has already been accepted by the Magistrate or by his predecessor.

In such a case, additional procedural protection applies.

Before making an order rejecting a previously accepted surety, the Magistrate must issue a summons or warrant, as he thinks fit, and cause the person for whom the surety is bound:

• to appear before him; or
• to be brought before him.

This ensures that rejection of an already accepted surety does not occur without bringing the concerned person before the Magistrate.

Powers of the Magistrate

The Magistrate may:

• refuse to accept a proposed surety;
• reject a previously accepted surety;
• conduct an inquiry into the fitness of the surety;
• direct a subordinate Magistrate to conduct the inquiry;
• consider the evidence and inquiry report; and
• make a reasoned order rejecting the surety where the statutory requirements are satisfied.

The power must be exercised according to the procedure prescribed by Section 140.

Duties of the Magistrate

The Magistrate must:

• conduct or cause an inquiry into the fitness of the surety;
• provide reasonable notice to the surety and the person who offered the surety;
• consider the evidence produced;
• consider the report of a subordinate Magistrate where applicable;
• record reasons for rejecting or refusing the surety; and
• follow the additional procedure where a previously accepted surety is being rejected.

Meaning of an “Unfit” Surety

BNSS does not provide an exhaustive definition of every circumstance that makes a person an “unfit” surety under Section 140.

The question of fitness must therefore be determined on the facts and evidence available in the particular case.

The Magistrate must have a legally relevant basis for concluding that the person is unfit for the purposes of the bail bond.

Important Safeguards

Inquiry Is Necessary

The Magistrate cannot simply reject a surety without following the statutory inquiry procedure.

Notice Must Be Given

Reasonable notice must be provided to both the surety and the person who offered the surety before the inquiry.

Evidence Must Be Considered

The decision must be based upon the evidence produced during the inquiry and the relevant report, where applicable.

Reasons Must Be Recorded

An order refusing or rejecting a surety must contain reasons.

Additional Protection for Previously Accepted Surety

Where an already accepted surety is to be rejected, the person for whom the surety is bound must be brought before the Magistrate or required to appear before him through summons or warrant, as appropriate.

Section 140 and Section 139

Section 139 deals with the contents of the bond, while Section 140 deals with the fitness of the surety.

Point	Section 139	Section 140
Subject	Contents of bond	Rejection of sureties
Main concern	Obligation under the bond	Fitness of the surety
Purpose	Defines the undertaking	Ensures an appropriate surety
Authority	Statutory bond requirements	Magistrate
Inquiry	Not the focus	Required before rejection

Section 140 and Section 141

The two provisions deal with different situations.

Section 140 concerns whether a particular surety is fit to be accepted.

Section 141 deals with imprisonment in cases where a person ordered to give security fails to furnish the required security, as well as certain breaches of a peace bond or bail bond.

Thus, rejection of a surety does not itself mean that the person has committed a criminal offence.

BNSS and CrPC

Section 140 of BNSS corresponds to Section 121 of the Code of Criminal Procedure, 1973 (CrPC).

Aspect	CrPC, 1973	BNSS, 2023
Provision	Section 121	Section 140
Subject	Power to reject sureties	Power to reject sureties
Authority	Magistrate	Magistrate
Ground	Surety unfit	Surety unfit
Inquiry	Required	Required
Notice	Required	Required
Evidence	Considered and recorded	Considered and recorded
Reasons	Must be recorded	Must be recorded
Previously accepted surety	Additional procedure	Additional procedure

The basic legal framework has been substantially retained under BNSS, with the corresponding provision renumbered from Section 121 CrPC to Section 140 BNSS.

Important Distinctions

Refusal vs Rejection of Surety

Refusal to accept applies to a surety who is being offered for the first time.

Rejection applies to a surety who has already been accepted by the Magistrate or his predecessor.

Surety vs Person Furnishing Security

The person furnishing security is the person against whom the security order operates.

The surety is the person who undertakes the responsibility associated with the bail bond.

Rejection of Surety vs Cancellation of Bail

Rejection of a surety under Section 140 concerns the fitness of the surety.

Cancellation of bail is a different legal process involving the continuation or withdrawal of an accused person’s release on bail.

Example

Suppose a person is required to furnish a bail bond with a surety. Another person offers to act as the surety.

The Magistrate has concerns about the proposed surety’s fitness. Before refusing to accept the surety, the Magistrate must conduct or arrange an inquiry into the surety’s fitness, provide reasonable notice to the surety and the person who offered the surety, consider the evidence, and record reasons if the surety is rejected.

If a surety who had already been accepted is subsequently found to be unfit, the Magistrate must follow the additional procedure prescribed for rejecting a previously accepted surety.

Common Confusions

Can a Magistrate reject a surety without an inquiry?

No.

Section 140 requires an inquiry into the fitness of the surety before refusal or rejection.

Does the surety have a right to notice?

Yes.

Reasonable notice must be given to the surety before the inquiry.

Must the person who offered the surety also receive notice?

Yes.

Section 140 expressly requires reasonable notice to the person by whom the surety was offered.

Must the Magistrate give reasons for rejecting a surety?

Yes.

The order refusing or rejecting the surety must record the reasons.

Can a previously accepted surety be rejected?

Yes.

However, the additional procedure prescribed by Section 140 must be followed.

Is rejection of a surety the same as punishment?

No.

Section 140 concerns the fitness of the surety for the purposes of the bail bond. It is not itself a punishment for an offence.

Important BNSS Provisions

• Section 130 – Order to be made
• Section 135 – Inquiry as to truth of information
• Section 136 – Order to give security
• Section 137 – Discharge of person informed against
• Section 138 – Commencement of period for which security is required
• Section 139 – Contents of bond
• Section 140 – Power to reject sureties
• Section 141 – Imprisonment in default of security
• Section 142 – Power to release persons imprisoned for failing to give security
• Section 143 – Security for unexpired period of bond

Topic at a Glance

Point	Position
Topic	Power to Reject Sureties
BNSS Section	Section 140
Chapter	Chapter IX
Corresponding CrPC provision	Section 121
Authority	Magistrate
Ground for rejection	Surety is an unfit person for purposes of the bail bond
Inquiry	Mandatory before refusal or rejection
Notice	Reasonable notice to surety and person offering surety
Evidence	Substance must be recorded
Reasons	Must be recorded in rejection order
Previously accepted surety	Additional procedure applies
Nature	Procedural safeguard

Quick Revision

• Section 140 BNSS deals with the power to reject sureties.
• A Magistrate may refuse to accept a proposed surety or reject a previously accepted surety.
• The ground must be that the surety is unfit for the purposes of the bail bond.
• Before rejection, an inquiry into the fitness of the surety must be conducted.
• The inquiry may be conducted by the Magistrate himself or by a subordinate Magistrate.
• Reasonable notice must be given to the surety and the person who offered the surety.
• The substance of the evidence must be recorded.
• The Magistrate must consider the evidence and relevant inquiry report.
• The order refusing or rejecting the surety must record reasons.
• Additional safeguards apply where a previously accepted surety is rejected.
• Section 140 substantially corresponds to Section 121 CrPC.

ALSO READ: Section 139 – Contents of bond

Conclusion

Section 140 of BNSS balances the Magistrate’s power to ensure that an appropriate surety is furnished with procedural safeguards protecting against arbitrary rejection. A surety can be refused or rejected only on the ground of unfitness and after the prescribed inquiry, notice, consideration of evidence and recording of reasons. The provision therefore promotes fairness and transparency in the process of accepting sureties.