Section 493 of BNSS, 2023 — Procedure in Case of Insolvency or Death of Surety or When a Bond is Forfeited

Introduction

Section 493 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the situation where a surety to a bail bond becomes insolvent or dies, or where a bond is forfeited under Section 491.

The provision enables the Court or a Magistrate of the first class to require the person for whom the security was originally furnished to provide fresh security. If fresh security is not furnished, the Court or Magistrate may proceed as though there has been a default in complying with the original order.

Meaning of Section 493

Section 493 provides a mechanism for dealing with a situation where the security originally provided for a person’s release or appearance is no longer reliable or available.

It covers three situations:

• the surety to a bail bond becomes insolvent;
• the surety dies; or
• the bond is forfeited under Section 491.

In these circumstances, fresh security may be required in accordance with the directions of the original order.

Statutory Basis

Section 493, BNSS, 2023 — Procedure in case of insolvency or death of surety or when a bond is forfeited

The provision is directly connected with Section 491 of BNSS, which deals with the procedure when a bond has been forfeited.

Essential Elements

1. Insolvency of Surety

If a surety to a bail bond becomes insolvent, the Court may require the person who was required to furnish the security to provide fresh security.

The reason is that the original surety may no longer be capable of fulfilling the financial or legal responsibility attached to the surety bond.

2. Death of Surety

Where a surety to a bail bond dies, the original security may no longer remain available in the manner contemplated by the order.

In such a situation, the Court or Magistrate may require the person concerned to furnish fresh security.

3. Forfeiture of Bond

Section 493 also applies where a bond has been forfeited under Section 491 of BNSS.

Thus, the provision is not limited to the death or insolvency of a surety. It also provides a mechanism for obtaining fresh security after forfeiture of a bond.

4. Power of the Court

The Court by whose order the bond was taken may order the person from whom the security was demanded to furnish fresh security.

A Magistrate of the first class may also exercise this power.

5. Fresh Security

The fresh security must be furnished in accordance with the directions of the original order.

The requirement is therefore not an entirely new or independent security arrangement. It is intended to replace the security that has become ineffective, unavailable or insufficient because of the circumstances covered by Section 493.

6. Failure to Furnish Fresh Security

If the person does not furnish the fresh security required under the order, the Court or Magistrate may proceed as if there had been a default in complying with the original order.

This gives the Court a procedural consequence for failure to replace the security.

Procedure

The operation of Section 493 may be understood through the following steps:

1. A person is required to furnish security under an order.
2. The surety subsequently becomes insolvent or dies, or the bond is forfeited under Section 491.
3. The Court that ordered the bond or a Magistrate of the first class considers the need for fresh security.
4. The person from whom the security was originally demanded is ordered to furnish fresh security.
5. The fresh security must comply with the directions contained in the original order.
6. If fresh security is not furnished, the Court or Magistrate may proceed as though the person had defaulted in complying with the original order.

Powers of the Court or Magistrate

Section 493 confers the relevant power upon:

• the Court by whose order the bond was taken; and
• a Magistrate of the first class.

The authority may require fresh security when:

• the surety becomes insolvent;
• the surety dies; or
• the bond is forfeited under Section 491.

The fresh security must follow the directions of the original order.

Insolvency of Surety

A surety provides security to ensure compliance with the conditions attached to a bond or bail bond.

If the surety becomes insolvent, the security may no longer provide the assurance contemplated when the original order was passed.

Section 493 therefore permits the Court or Magistrate to require the person concerned to furnish fresh security.

Death of Surety

The death of a surety is another circumstance expressly covered by Section 493.

The provision does not automatically terminate the criminal proceeding or impose guilt upon the person who furnished the bond. Instead, it provides a procedure through which the Court may require replacement security in accordance with the original order.

Forfeiture of Bond

Section 493 also applies where a bond is forfeited under Section 491.

The forfeiture of the bond can therefore result in a requirement to furnish fresh security. If the person fails to provide the required security, the Court or Magistrate may proceed as though there has been a default in complying with the original order.

Relationship with Section 491

Section 491 and Section 493

Section 491 deals with the procedure when a bond has been forfeited.

Section 493 operates in circumstances including forfeiture under Section 491 and provides for the possibility of requiring fresh security.

Therefore, Section 491 primarily addresses the forfeiture procedure, while Section 493 deals with the subsequent requirement of fresh security in specified circumstances.

Relationship with Section 492

Section 492 and Section 493

Section 492 deals with the cancellation of a bond and bail bond following forfeiture for breach of a condition.

Section 493 deals with a somewhat different issue: the requirement of fresh security when a surety becomes insolvent or dies, or when a bond is forfeited under Section 491.

Both provisions form part of the statutory framework dealing with the consequences of failure or change in the security supporting a bond.

BNSS and CrPC

Section 493 of BNSS corresponds to Section 447 of the Code of Criminal Procedure, 1973.

The provision substantially carries forward the earlier CrPC framework concerning insolvency or death of a surety and forfeiture of a bond.

The corresponding CrPC provision dealt with the same basic circumstances and permitted the Court or Magistrate of the first class to require fresh security.

Important Distinctions

Death of Surety and Forfeiture of Bond

These are separate circumstances under Section 493.

The first concerns the death or insolvency of the surety, while the second concerns forfeiture of the bond under Section 491.

Both circumstances can lead to an order requiring fresh security.

Fresh Security and Original Security

The original security is the security furnished pursuant to the initial order.

Fresh security is security furnished subsequently when the circumstances covered by Section 493 arise.

The fresh security must comply with the directions of the original order.

Section 492 and Section 493

Section 492 primarily concerns cancellation of the bond and bail bond following forfeiture.

Section 493 primarily concerns the furnishing of fresh security where the surety becomes insolvent or dies, or where the bond is forfeited under Section 491.

Common Confusions

Does the death of a surety automatically cancel the criminal case?

No.

Section 493 only provides a mechanism for requiring fresh security. It does not terminate the criminal proceedings.

Can the Court require a fresh surety after the original surety dies?

Yes.

Where a surety to a bail bond dies, the Court by whose order the bond was taken or a Magistrate of the first class may order the person concerned to furnish fresh security.

What happens if fresh security is not furnished?

The Court or Magistrate may proceed as if there had been a default in complying with the original order.

Does Section 493 apply only when a surety dies?

No.

It also applies when the surety becomes insolvent and when a bond is forfeited under Section 491.

Example

A person is released subject to a bail bond supported by a surety. Subsequently, the surety becomes insolvent.

The Court may require the person for whom the security was originally furnished to provide fresh security in accordance with the directions of the original order.

If the person fails to furnish the required fresh security, the Court may proceed as though there had been a default in complying with the original order.

Important BNSS Provisions

• Section 485 — Bond of accused and sureties.
• Section 486 — Declaration by sureties.
• Section 489 — Discharge of sureties.
• Section 491 — Procedure when bond has been forfeited.
• Section 492 — Cancellation of bond and bail bond.
• Section 493 — Procedure in case of insolvency or death of surety or when a bond is forfeited.
• Section 495 — Appeal from orders under Section 491.

Topic at a Glance

• Topic: Insolvency or death of surety or forfeiture of bond
• BNSS Section: Section 493
• Main purpose: To provide for fresh security when the original surety becomes unavailable or when a bond is forfeited.
• Covered situations: Insolvency of surety, death of surety, and forfeiture of bond under Section 491.
• Competent authority: Court by whose order the bond was taken or a Magistrate of the first class.
• Requirement: Fresh security in accordance with the directions of the original order.
• Failure to furnish security: May be treated as a default in complying with the original order.
• Corresponding CrPC provision: Section 447.

Quick Revision

• Section 493 of BNSS deals with insolvency or death of a surety and forfeiture of a bond.
• It applies when a surety to a bail bond becomes insolvent or dies.
• It also applies when a bond is forfeited under Section 491.
• The Court that ordered the bond or a Magistrate of the first class may require fresh security.
• The fresh security must comply with the directions of the original order.
• If fresh security is not furnished, the authority may proceed as if there was a default in complying with the original order.
• Section 491 deals with the procedure when a bond is forfeited.
• Section 492 deals with cancellation of the bond and bail bond.
• Section 493 deals with the requirement of fresh security in the specified circumstances.
• Section 493 corresponds to Section 447 of the CrPC.

ALSO READ: Section 492 – Cancellation of bond and bail bond

Conclusion

Section 493 of the BNSS ensures that the security underlying a bond or bail arrangement remains effective even when the original surety becomes insolvent or dies, or when the bond is forfeited. It empowers the competent Court or Magistrate to require fresh security and provides a consequence where the person concerned fails to furnish it. The provision therefore maintains the effectiveness of the original security arrangement while providing a statutory mechanism for its replacement.