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Everything about Bail Bonds, Bond forfeiture and consequence thereof by Rakesh Kumar Singh

Everything about Bail Bonds, Bond forfeiture and consequence thereof by Rakesh Kumar Singh

Bail Bonds
Bail Bonds

 

A regular phenomenon in a court of criminal jurisdiction is the execution of bonds, their forfeiture and consequence thereof. In the circumstances, I have decided to go into the root of the matter. After going through the relevant provisions and several judgments of Hon'ble superior courts, I found some answers which are discussed hereinafter.

Necessary questions in respect of Bonds, Forfeiture of Bonds and Consequence thereof:

The issues can be sub divided in following sub issues:

 

Issue-1: Under what circumstances can a court initiate proceedings under section- 446 of the Code of Criminal Procedure (the Code, for short)?

 

1. Section-446 CrPC to the extent necessary for the present purpose reads as under:

“Section 446. Procedure when bond has been forfeited.–(1)Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid…….”

1.1. Section 446 of the Code, as the title itself reveals, lays down the 'procedure when bond has been forfeited'. It contains the procedure to be followed when a court is satisfied that the bond has been forfeited. Before a court initiates proceedings under Section 446 of the Code to recover the penalty, the court must be satisfied that 'the bond has been forfeited'. Such forfeiture must have been "proved" to the satisfaction of the court.

1.2. Thus, the 'proof of satisfaction of forfeiture of a bond' is the most essential pre-requisite for commencing proceeding under Section 446 of the Code. Such proof must precede the commencement of proceedings under Section 446 of the Code. Without such “proof”, no proceeding under Section 446 of the Code can be initiated.

1.3. For the time being we will only discuss about a bond for appearance of an accused. The question is what proof is required for the court to record its satisfaction about forfeiture of a bond? I consider that it is automatic if the accused fails to appear on the date and time fixed for his appearance.

1.4. When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. There is no reason why this very point should be considered twice; once before holding that the bond has been forfeited and again when the person who has executed the bond shows cause against payment of the penalty. In my opinion, therefore, mere absence is sufficient for the court to hold at the earlier stage that the bond has been forfeited. For better understanding, however, we should look into the judgments of Hon'ble superior courts.

1.5. Hon'ble High Court of Delhi in Sham Sunder vs State Of Delhi 1990 CriLJ 2370 has observed as under:

“I hold that it was not necessary for the magistrate to have passed any specific order in so many words that the bond stood forfeited before issuing notice to the surety under S. 446 of the Criminal P.C. to explain why the amount of bond which stood forfeited be not realised from him as fine. The surety bond of the petitioner stood forfeited as soon as breach of the terms of the bond was committed on failure of the accused to appear in court on the dates fixed by the court and failure of the surety to produce the accused and accused having been declared proclaimed offender. The contents of the notice under S. 446 of the Criminal P.C. served on the surety clearly indicate that the bond of the surety stood forfeited and the same can be treated as specific order of the Magistrate forfeiting the surety bond as no notice was required to be given to the surety before forfeiting the surety bond.”

1.6. Division Bench of Hon'ble High Court of Patna speaking through Justice Sahai and Justice Anant Singh agreeing (while dealing with similar provisions in the old code) in Tarni Yadav v. The State AIR 1962 Pat 431 has observed as under:

“In my opinion, therefore, mere absence is sufficient for the court to hold at the earlier stage that the bond has been forfeited.”

1.7. Hon'ble Guahati High Court in Md. Monohar Khan Vs. Tripura Administration MANU/GH/0019/1960 has observed as under:

“In the case of a bond for appearance of the accused person before Court, the very fact that the accused person did not appear being known to the Court and to the surety, no further grounds for the proof of that fact are necessary and the bond can be straightway forfeited and there is nothing irregular in the Court doing so.”

1.8. Hon'ble High Court of Orissa in Jagannath Rout vs State Of Orissa 1975 CriLJ 1684 has observed as under:

“If the bond is for appearance of the accused in Court, as it is in this case, the fact that the accused had absented himself is sufficient to constitute a breach of the condition and therefore for the forfeiture of the bond……………….There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both the cases, it has to be proved to the satisfaction of the Court that there has been a forfeiture of the condition of the bond and the Court has also to record the grounds of such proof. But so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary.”

1.9. Thundichi vs State of Kerala Crl.Rev.Pet.No. 2883 of 2007 decided on 22.07.2009 (It is based upon the authority of Division Bench of the same High Court setting at rest the controversy of Usman v. State of Kerala 2005 (4) KLT 348):

“When the matter came up for hearing, taking note of the divergent views in the decisions of this Court in Usman v. State of Kerala (2005 (4) KLT 348) and Geetha v. State of Kerala (2006(3) KLT 960), the matter was referred to a Division Bench for authoritative pronouncement of the issue involved. Division Bench considered the matter and vide judgment dated 10.7.2009 held that it is not required that the court concerned should record satisfaction before bail bond is forfeited and that forfeiture of bail bond is automatic on non- compliance of the conditions referred to therein.”

1.10. Hon'ble High Court of Karnataka in Sadananda vs. State of Karnataka MANU/KA/0008/1985 has observed as under:

“The wordings of Section 446(1) clearly show that if a term of a bond is violated or breach of a term of a bond is committed, the bond automatically stands forfeited. All that is required is that the Magistrate has to satisfy himself that the bond has been forfeited.”

Issue-2: Whether any notice is required before forfeiture of bond:

2. Section 446 of the Code does not provide for any notice to be issued to the surety/accused before forfeiting the bond executed by him for failure of the terms of the bond executed by him. The wordings of Section 446(1) clearly show that if a term of a bond is violated or breach of a term of a bond is committed, the bond automatically stands forfeited. All that is required is that the court has to satisfy itself that the bond has been forfeited. Therefore, the issue of the notice to the surety before forfeiting the bond is not necessary.

2.1. Hon'ble High Court of Delhi in Yashodha vs State 54 (1994) DLT 637 has observed as under:

“Significantly no notice to the surety is contemplated before the forfeiture of the bond.”

2.2. Hon'ble High Court of Delhi in Sham Sunder vs State Of Delhi 1990 CriLJ 2370 has observed as under:

“The contents of the notice under S. 446 of the Criminal P.C. served on the surety clearly indicate that the bond of the surety stood forfeited and the same can be treated as specific order of the Magistrate forfeiting the surety bond as no notice was required to be given to the surety before forfeiting the surety bond.”

2.3. Hon'ble High Court of Karnataka in Sadananda vs. State of Karnataka MANU/KA/0008/1985 has observed as under:

“Section 446 of the Code does not provide for any notice to be issued to the surety before forfeiting the bond executed by him for failure of the terms of the bond executed by him………….Therefore, the issue of the notice to the surety before forfeiting the bond is not necessary.”

2.4. Division Bench of Hon'ble High Court of Patna in Tarni Yadav v. The State AIR 1962 Pat 431 has observed as under:

“When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. There is no reason why this very point should be considered twice; once before holding that the bond has been forfeited and again when the person who has executed the bond shows cause against payment of the penalty.”

2.5. The issue may be discussed from another angle. Take for example a case where accused makes a default in appearance. On that day a notice is issued against the surety and process is also issued against the accused for his appearance. On the next date, both the persons appear. Now two situations are possible. Both the persons may provide valid justification for the non-appearance of the accused on previous occasion and matters end there. In the second situation, justification given may not be accepted. If now, the court holds that it is satisfied that the bonds have been forfeited, question will arise about the options available with the court. Section 446 CrPC provides that once the court recorded its satisfaction about the forfeiture of the bond, it shall call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid. Meaning thereby that the court has to give an opportunity to the persons to show cause. What will they say? They again provide justification for the non-appearance of the accused on previous occasion. Court will again go through the same process whereas it has already held that the cause shown for previous non-appearance was not sufficient. The exercise not only be futile but also touch the jurisdiction power of review which is not vested in the court of criminal jurisdiction. Be it noted that Hon'ble Supreme Court has already held that giving of notice to show cause is a must after the forfeiture.

2.6. From the above, it is clear that no notice is required before forfeiture of bond as the same is automatic result of the act of the accused.

2.7. It seems to me, however, that notice has to be given to the surety/accused at one stage only, and that is the second stage. If once he has been given notice to show cause and the cause shown by him has been found to be insufficient, I do not think that a second notice to him to show cause is required by law. I will advert to it a little later.

Issue-3: What is meant by the expression 'the bond has been forfeited' under Section 446 of the Code?

3. The word 'forfeit' as per Black's Law Dictionary, Fifth Edition means, to lose, or lose the right to, by some error, fault, offence, or crime; to incur a penalty; to become liable to the payment of a sum of money, as the consequence of a certain act.

3.1. As per 'New Webster's Dictionary of the English Language, Deluxe Encyclopedic Edition' 'forfeit' means: to lose the right to, by some fault, crime, or neglect; a fine; a penalty.

3.2. The expression 'forfeiture of bond' in the present context therefore, takes in two things. One is an act, fault or error. The other is, incurring a penalty or becoming liable to the payment of a sum of money as a consequence of such act, fault or error.

3.3. However, it is not necessary that only when the fault results in incurring a penalty, the forfeiture would be proved. Even where the person becomes liable to the payment of a sum of money, as the consequence of a certain act, forfeiture of bond can be taken as proved.

3.4. The first question however will be for whose fault there shall be a forfeiture of bond. The terms of the bond in Form No. 45, specify that the accused shall attend and appear in court on every day etc., and in case of his making default therein, the accused binds himself "to forfeit" to Government, the sum of rupees specified in the bond. In the second part of the bond, the surety also declares that the accused shall attend and appear before the court concerned on every day on which any trial on the charge is held for the purpose of answering the charge against him and in case of the accused making any default therein, he binds himself "to forfeit" to Government the sum of rupees specified therein.

3.5.  It should be noticed that forfeiture of bond as indicated in Section 446 of the Criminal Procedure Code is by the act of the accused, who has committed breach of the condition imposed. Such forfeiture emanates only from the conduct of the accused and there is no need or occasion for the Court to pass any order to forfeit such bond.

3.6. Clearly, it is not the fault of the surety which gives rise to the forfeiture of the bond but it is the fault of the accused.

3.7. However, the expression used in the bond is 'making any default'. But, what is meant by 'default' in the present context? Is it a mere non-appearance of accused?

3.8.  A surety bond is a contract. Each bond, has to be construed on its own terms. But in construing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in court in which he is standing his trial for a criminal offence at the hearing of the case. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly. Looked at from this point of view surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases it is of course said that surety bonds call for a strict construction. But the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to be construed on its own terms, subject to what has just been stated.

3.9.  A bond for appearance is insisted upon and executed to guarantee presence of the accused in court during trial and for a smooth running of trial. So, can it be said that it is only when the accused absents himself from court with a view to defeat the purpose of the bond, the requirements of the word 'default' are satisfied? Whether the word 'default', in that sense, must be something more than a mere non-appearance of accused in court.

3.10. I am unable to agree.

3.11. The main object of executing the bond is to guarantee the presence of the accused in court as stated in the bond. It is also the purpose that the accused shall not remain in jail during pendency of trial and at the same time, the trial will proceed smoothly. The purpose of execution of bond not only goes in the favour of the judicial system and public at large but also in the favour of the accused. Since, accused gains something i.e. his personal liberty to some extent, he has to justify his gains. The accused cannot make breach of any condition of the bond and then claim that it was not willful or with a view to hinder the course of a smooth trial.

3.12. No law normally punishes an individual for an unintentional act or omission. No law is ever harsh to anyone who innocently fails or omits to do something by an inadvertent mistake or error. This is specially so, when a person i.e. the surety is penalized for the fault of another i.e. the accused. A surety incurs a penalty mainly due to the failure of accused to appear and for such default. But, an accused can be absent from court on a particular day or even on several dates for a number of reasons.

3.13. For example, while on his way to the Court, if an accused had met with an accident and he was taken to a hospital, such failure of the accused to appear before the Court on that particular date of hearing cannot be treated as unjustified. There may be other situations where the accused might have been prevented from appearance in Court due to valid reasons beyond his control. Instances may be numerous and variegated depending on factual situations which cannot be enumerated.

3.14. No quarrel on this point. But can't such justification be shown by the executor of the bond when he is asked to do so? After all he will be having an opportunity of doing so. Forfeiture is one thing and payment of penalty is another. There is a crucial time gap between these two events.

Stage of notice:

3.15. Section 446(1) itself says that the court may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Clearly, an executor of the bond can justify reasons for default and thereby can escape any penalty. This conclusion can also be fortified from deducing a clue from section 437A(2) Cr.PC. It says:

“If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.”

Though the bond under section 437(A) is for the appearance before the higher court, yet the bond, for all purposes, is a bond for appearance. The legislative intent clearly shows that if the accused fails to appear, the bond has to be treated as forfeited.

3.16. The only proof required for the satisfaction of the court is as to whether the accused has appeared or not. If the accused fails to appear, the court can record its satisfaction to the effect that the bond has been forfeited, and can issue notice to the surety.

3.17. It can be said that only stage for issuance of notice is when the court calls upon the person to show sufficient cause or to pay the penalty.

3.18. Hon'ble Supreme Court in Ghulam Mehdi vs State Of Rajasthan AIR 1960 SC 1185 has observed as under:

“This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.”

3.19. Hon'ble High Court of Delhi in Yashodha vs State 54 (1994) DLT 637 has observed as under:

“It would thus be clear that before any person bound by such bond becomes liable to pay the penalty thereof it is required of the court to give notice to him as to why it should not be paid and if he fails to show sufficient cause only then it can proceed to recover the amount of penalty imposed.”

3.20. Division Bench of Hon'ble High Court of Patna in Tarni Yadav v. The State AIR 1962 Pat 431 has observed as under:

“The second stage relates to realisation of the forfeited amount of the bond. The provision Is that, after the Court has come to the conclusion that the bond has been forfeited, it has to give two alternatives to the executant of the bond. It has to give him notice either to pay the penalty or to show cause why it should not be paid. It cannot enforce realisation of the penalty without giving such notice. If, on being served with such notice, the executant of the bond pays the penalty and does not show cause, that would be the end of the second stage, and no further proceeding is necessary. The executant of the bond may, however, take the alternative course, and, instead of paying the penalty, he may show cause why the penalty should not be paid. At this stage, the cause which he may show in case of a bond for appearance may be that the absence was not willful but it was due to certain justifiable reasons. When this course is adopted the court must consider the cause shown, if there are sufficient circumstances before the court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.”

3.21. A different kind of contention can be raised with the help of the wordings of Form 48, and it may be said that there should be something more than mere non-appearance of the accused to establish forfeiture of the bond. This contention requires deliberation.

3.22. Wording of Form 48 provides that:

“….And whereas the said accused has failed to appear before this court and by reason of such default you have forfeited the aforesaid amount….”

3.23. At the first blush it appears that the wordings provide two stages:

First, failure to appear;

And second, the forfeiture as a result of the default.

Accordingly, the two acts taken together will tantamount to the expression 'has been forfeited'.

3.24. But a closure scrutiny of these wordings may clearly show the fallacy of this proposition. The first act is not in the hands of the surety. The event of non-appearance has already occurred. Condition of bond has already been breached. This can't be undone by the surety.

The second act is also beyond the control of the surety. The second act is not a physical act like the first act, but it is only a consequential resultant act of the first act. A person cannot stop a result of any act on which he has no control. If the action took place, the result has to come. And what is the result? Forfeiture of the bond.

Further, Section 446A also stipulates that 'where the bond is forfeited for breach of condition'…. meaning thereby a breach of condition can entail forfeiture of the bond.

Even section 437A clearly says that non-appearance shall result in forfeiture of the bond.

3.25. If the expression 'by reason of such default' is given extended meaning it would frustrate the very purpose of execution of the bond, for it would be difficult to prove the fact that the accused has absented himself not only willfully, but such default was with a view to hinder the course of a smooth trial and to defeat the purpose of bond. And further all other proceeding shall come to a breaking point. Such meaning cannot be attributed to the legislature. Section 437A is the complete answer to the above proposition.

 

Issue-4: Who forfeits the bond?

 

4. Wording of Form 45 is: the accused binds himself "to forfeit" to Government, the sum of rupees specified in the bond. The surety binds himself "to forfeit" to Government the sum of rupees specified therein.

Wording of Form 48 is: You have forfeited the aforesaid amount.

4.1. It is evident from Form No. 45, 48 and Section 446 of the Code that the person who 'forfeits' the bond-amount is the person who executes the bond. The bond amount is forfeited by the accused and not by the court. This is what is indicated by the usage of the expressions, "you have forfeited" in Form No. 48, "the accused binds himself to forfeit", "they bind themselves to forfeit" etc., in Form No. 45. Thus, the bond is forfeited by the person who executes the bond and not by the court. Forfeiture is not an event which takes effect as a consequence of a court's order.

4.2. It should be noticed that forfeiture of bond as indicated in Section 446 of the Criminal Procedure Code is by the act of the accused, who has committed breach of the condition imposed. Such forfeiture emanates only from the conduct of the accused and there is no need or occasion for the Court to pass any order to forfeit such bond.

4.3. The language “has been forfeited” employed in more than one place in Section 446 of the Criminal Procedure Code would clearly reflect the same. Under this provision, the Court is required only to record its satisfaction on proof that such forfeiture has taken place and then to call upon the person to pay penalty thereto in terms of the bond or to show sufficient cause.

 

Issue-5: Should a surety suffer for the default made by the accused?

 

5. No one compels a person to stand as a surety.

5.2. Hon'ble Supreme Court in Mohammed Kunju and Another vs State Of Karnataka AIR 2000 SC 6 has observed as under:

“The most essential element of the bail order is for ensuring the attendance of the accused in the court whenever required. In fact, that is the hub of the order and the other conditions are only subsidiary thereto. So long as that core postulate remains unchanged a surety cannot take advantage to any subsequent modification effected in respect of any other conditions. If a surety is not agreeable to abide by the modified conditions he must apply to the court under Section 444(1) of the Code to discharge him. Until the surety is discharged he is bound by the bond and any modification or even deletion of a condition of the order cannot absolve him from his liability in respect of the unaltered conditions. If there is forfeiture of the bond executed by the surety due to the default of the accused in making appearance before the court it is open to the court concerned to resort to the steps contemplated in Section 446 of the Code as against the sureties, besides the accused himself.”

5.3. Hon'ble High Court of Bombay in Balraj S. Kapoor Vs. The State of Bombay MANU/MH/0105/1954 has observed as under:

“It is true, as is urged by Mr. Desai who appears for the State, that nobody compels a person to stand as a surety. It is a voluntary contract, and if a person enters into a surety bond, with eyes wide open, and if the accused subsequently acts contrary to the terms of the bond, the surety cannot be heard to complain that he should be relieved against from the operation of an act of the accused over which the surety has no control. It is then no use suggesting that the surety has no control because the obligation under the bond upon the surety is that the surety will secure the attendance of the accused before the Court.”

 

Issue-6: Can a surety be penalized even when personal bond was not executed by the accused himself?

 

6. I consider that there is no prohibition. Execution of a surety bond does not depend upon execution of a personal bond by the accused.

6.1. Hon'ble High Court of Delhi in Sham Sunder vs State Of Delhi 1990 CriLJ 2370 has observed as under:

"In Ram Lal v. State of U.P., a similar proposition of law came up for consideration before the Supreme Court and it was authoritatively held that the responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. It was held that the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. It is, hence, evident that the legal proposition laid down by the Allahabad High Court stood overruled by the Supreme Court and still on the basis of an overruled authority an admission of the petition has been obtained. Be that as it may, in view of the law laid down by the Supreme Court, I hold that there is no merit in this plea taken by the petitioner.”

6.2. Hon'ble Supreme Court in Ram Lal vs. State of UP 1979 AIR 1498 has observed as under:

“It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties.”

Issue-7: Can an accused be asked to pay the amount of his forfeited bond?

7. Section 446 employs the expression 'any person bound by such bond'. It does not differentiate between accused and surety. The only point of difference is when the penalty is not recovered as fine and the person has to suffer civil imprisonment, in which case only the surety is made liable for civil imprisonment. The reason is obvious. If accused is made to suffer civil imprisonment, it would defeat the purpose of bail granted to the accused. Personal liberty of the accused can be curtailed only when the bail is canceled.

7.1. However, it does not mean that the accused cannot be made liable to pay the forfeited amount if he has failed to show sufficient cause against the forfeiture of the bond.

7.2. It may be noted that bonds executed by the accused and surety are two different things though printed on the same paper. Both the bonds are independent of each other and consequences thereof are not contingent upon each other.

7.3. Hon'ble Supreme Court in Ram Lal vs. State of UP 1979 AIR 1498 has observed as under:

“The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon, even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced.”

7.4. The undertaking to be given by the accused as may be seen from form No. 45 of Schedule-I is to attend the Court on every day of hearing. The undertaking to be given by the surety is to secure the attendance of the accused on every day of hearing. The undertaking to be given by the surety is not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused is quite independent of the undertaking given by the accused to appear before the Court, even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced. It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties.

7.5. Then why there is no provision of notice to the accused who has also executed a bond for appearance whereas in case of surety Form-48 provides for the notice.

7.6. So far as I understand, the word 'notice' in such case is used in the sense of calling upon the defaulter to show cause because the word 'notice' does not appear in Section 446 Cr. P. C. itself. Section 446 Cr. P. C. does not provide that any particular kind of formal notice should be given to the person whose bond has been forfeited.

7.7. It is clear that when the bond is forfeited, it is the duty of the Court to record the grounds of the proof on which the forfeiture is based. After this, the Court may call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid.

7.8. What is meant to say is that the person bound by the bond cannot insist upon a particular form of notice. All that is necessary is that he should be called upon and given a chance to show cause why he should not pay the penalty. For instance, if a particular accused who forfeits his bond comes to the court after his re-arrest and the court calls upon him to show cause why he should not pay the penalty and if after recording the reasons given by the accused, the court finds the reasons not sufficient and thereafter asks the accused to pay the penalty, the accused cannot take the stand that a notice in writing was not separately given to him.

7.9. The purpose of this section is to give a chance to the accused to give an explanation and satisfy the court that there were good reasons for his absence, that the forfeiture was beyond his control and, therefore, the penalty should not be imposed upon him. The Code has prescribed form No. 48 in the case of sureties because the arrest of the sureties cannot be made on account of the failure of the accused to make their appearance in the court and, therefore, it is only just that a notice should go to them on breach of a bond.

7.10. In my opinion, if the accused is called upon in some manner by the court and if he gets an opportunity to show cause for not paying the penalty, then it cannot be said that there is a failure of justice. In such a case, the accused cannot take the plea with any justification that he was not given a formal notice and, therefore, the proceedings taken by the court are invalid.

Issue-8: What is the meaning of the expression ''if sufficient cause is not shown and the penalty is not paid'' appearing in Section 446(2)?

8. The direction contemplated in section 446(1) gives two choices to the affected person. One is to show cause why penalty should not be paid by him and the second in alternative is to pay the penalty on his own. Whereas, sub-section-2 contemplates a procedure for recovery only when both the above choices have been exhausted.

First, the affected person has a chance to show sufficient cause and escape the consequence of any penalty;

Second, if sufficient cause is not shown or cause shown is not found sufficient, the affected person has a chance to pay the penalty and escape the consequence contemplated under section 446(2).

However, if the affected person does not do any of the above acts, the court has to direct recovery proceedings.

Issue-9: Can a court issue order 'to forfeit' a bond under Section 446?

9. Nothing contained in Section 446 gives any power to a court 'to forfeit' a bond as if forfeiture is the outcome of the court's order. But, it is a general practice that court passes orders under Section 446 of the Code such as, "I hereby forfeit the bond", "this Court forfeits the bond" etc. as if forfeiture of bond is an incident to follow a court's order. I could not come across with anything in Section 446 of the Code which empowers a court to issue any such order to forfeit a bond. The court cannot issue order to forfeit a bond.

 

Issue-10: Can a court award a penalty, as a punishment for breach of condition of bond under Section 446 of the Code?

 

10. The expression 'penalty' used in Section 446 of the Code requires some clarification. Form No. 48 reveals that as per the show-cause notice itself, a surety is called upon to pay the penalty. It reads as follows: "and whereas the said (name) has failed to appear before this Court and by reason of such default you have forfeited the aforesaid sum of rupees….You are hereby required to pay 'the said penalty' or show-cause, within…days from this date, why payment of the said sum should not be enforced against you".

10.1. Section 446 (1) of the Code also shows that a person bound by the bond is called upon to pay the “penalty” thereof and Form No. 48 refers to “the said penalty”. That means, penalty has already arisen and court is only calling upon the person to pay the penalty.

10.2. But, nothing contained in Section 446 of the Code provides, reveals or even implies that the court can "award" or "impose" a penalty under the section as if it is a punishment imposed by the court for breach of bond. Penalty arises automatically, as a consequence of forfeiture of bond amount and default of the accused as already adverted to herein above. It is the same amount which is referred to in the bond that transforms or crystallizes itself into the penalty which the accused or surety is liable to pay. The court only calls upon such person to pay 'the said penalty' or the 'penalty thereof which is incurred by him.

10.3. The court can only recover the penalty which is already crystallized, but it cannot order a penalty as a punishment. Only recovery of penalty that is contemplated under Section 446 (2) and (3) of the Code can be made, but not any passing of order of penalty by the court. Section 446 does not refer to any such imposition of penalty by court.

 

Issue-11: What factors can be considered for remitting some portion of the penalty?

 

11. The next question will be the extent of penalty amount. No doubt even if the person fails to show sufficient cause against the forfeiture of bond amount, the court is not required to direct the payment or recovery of whole of the bond amount. It is well within its right to remit some portion of the amount under Section-446(3) CrPC. However, it must be done after recording of reasons in writing as unfettered discretion has been deleted. Reasons may be several, ranging from efforts made by the surety in securing the presence of accused to previous conduct of the accused to effect on economical capacity of payment.

11.1. Hon'ble High Court of Rajasthan in Dayal Chand Vs. State of Rajasthan MANU/RH/0091/1981 has observed as under:

“No indication is to be found in Section 446(3), Cr.P.C. as to the circumstances under which the Court will be justified in making an order in conformity with Section 446(3), Cr.P.C. When a person executes a bond, there are certain factors which are taken into consideration in determining the amount of the bond. Among these may be mentioned (a) the nature of the offence for which the accused is prosecuted; (b) the status and the position of the accused and (c) the nature of the sentence which in the case of a conviction, is likely to be imposed upon an accused person.”

11.2. Hon'ble High Court of Bombay in Balraj S. Kapoor Vs. The State of Bombay MANU/MH/0105/1954 has observed as under:

 “But it is clear that a case for the exercise of the discretion under Section 514(5) will properly arise in cases where the accused has been subsequently arrested or the amount forfeited is excessive and the surety is unable to pay. It is also relevant to consider in such cases whether the surety did not act irresponsibly and there was no connivance or negligence on the part of the surety.”

 

Issue-12: Whether a Non-Bailable Warrant can be canceled and earlier bonds restored when the accused appeared in the meantime and makes an application?

 

12. It often happens that when court issues a Non Bailable Warrant against a defaulting accused, the accused appears in the meantime and prays for cancellation of the Warrant. Can it be done? It requires a thorough deliberation.

12.1. At the outset it may be stated that a warrant can be canceled at any stage. The power to that effect is given to the court by the Code itself. Section-70(2) CrPC provides such power. Even otherwise, purpose of issuance of any process including a NBW is to secure the presence of the said person and nothing else. Once the accused appears before the Court, the purpose stands fulfilled. NBW will become infructuous and therefore it has to be deemed to be canceled. It is clear that on appearance of the accused, NBW has to be canceled (the purpose has already been fulfilled) irrespective of any application made (or to be made) in this respect.

What will happen then?

12.2. The accused is now before the Court. We can first take a case of bailable offences. Section-436(2) CrPC is relevant. It provides:

“(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under section 446.”

 

12.3. This sub section contemplates two situations. One when the accused appears on subsequent occasion, and the second when he is brought in custody. First situation deals with normal process i.e. notice/summons/BW or appearance irrespective of these processes. Second situation deals with the coercive process i.e. NBW. Whatever may be the situation, the court may refuse to release the accused on bail.

12.4. (No doubt in a bailable offence, the accused has a right of bail. However, if he makes a breach of conditions in appearance then upon subsequent appearance he may be refused to be enlarged on bail. Sub-section-(2) starts with “notwithstanding” and therefore is having an overriding effect on sub-section-(1). Breach of condition of bail will give a discretion to the court to refuse the release of the accused even in a case of bailable offence).

12.5. As discussed above, nature of process issued for securing the appearance of the accused is immaterial. Reason is obvious. The release of accused has to be decided in accordance with Section-436(2) in bailable cases and Section-437 in non-bailable cases. This view may also get support from Section-204 CrPC which gives discretion to the court to issue summons to the accused even in a warrant case which are normally non-bailable offences. Can an accused contend that since the summons was issued, he should be admitted on bail irrespective of any sufficient reasons to be provided under Section-437 CrPC.

12.6. Hon'ble High Court of Delhi has dealt with the issue of refusal or grant of bail in cases where accused puts his appearance on summons. In Kanimozhi Karunanithi vs Central Bureau of Investigation on 8 June, 2011, it has observed as under:

“Issue of process under Section 204 Cr.P.C. is meant for ensuring the presence of the accused in the court. Issuing summons under Section 204 Cr.P.C., by no means, is an assurance that the accused on appearance in the court shall be granted bail nor it amounts to misleading the accused and preventing him from seeking his legal remedy by moving an application for anticipatory bail in the superior court.”

12.7. The answer has to be in the negative. Consequently, it has to be held that accused has to apply for release on bail in case of breach of conditions as indicated in Section-436(2) CrPC.

12.8. The issue may be dealt with from another angle. Section-446A CrPC deals with the further consequence of forfeiture of bond.

Issue-13: After forfeiture, what will be the fate of the bonds executed by the accused and his sureties?

13. Section-436(2), 446A and 447 CrPC are relevant.

Section-436(2)- “Notwithstanding anything contained in Sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446. ”

“446A. Cancellation of bond and bail-bond.-

Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition:

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) Thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:

Provided that subject to any other provision of this Code, he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the police officer or the Court, as the case may be thinks sufficient. ”

“447. Procedure in case of insolvency or death of surety or when a bond is forfeited.–When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of Section 446, the Court by whose order such bond was taken, or a Magistrate of the first class may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.”

13.1. Division Bench of Hon'ble High Court of Rajasthan in Johny Wilson vs State Of Rajasthan 1986 CriLJ 1235 has dealt with the issue in great detail and has observed as under:

“It is true that forfeiture of the bail-bond does not amount to cancellation of bail. The legislature has not used the word "cancellation". In Sections 437(5) and 439(2), a discretion is given to the court-concerned to direct that any person, who had been released on bail be arrested and committed to custody. When any such order is passed, it amounts to cancellation of bail. What is to be seen is that even when the cancellation of bail is not so ordered under Section 437(5) or 439(2), Cr. P.C. what is the effect of cancellation of bail and bail bonds. Under Sub-section (2) of Section 436, when the accused has failed to comply with the conditions of the bail-bonds, the court is empowered not to release him on bail. Sub-section (2) of Section 436, thus, clearly provides that it is within the discretion of the court to release the accused on bail or refuse him bail, when he fails to comply with the conditions of the bail-bond regarding the time and place of attendance. Sub-section (2) begins with non obstante clause and as such, Sub-section (2) over-rides Sub-section (1) in the eventuality when there is failure to comply with the conditions of bail-bond, as regards the time and place of attendance. The second proviso to Sub-section (1) further lays down that the provisions of Section 446A shall not in any way be affected by Section 436, Cr. P.C., which would mean that Section 446A shall be having an overriding effect.

As already stated, Section 446A has been newly inserted w.e.f. Sept. 23, 1980 by the Code of Criminal Procedure (Amending Act No. 63 of 1980). It provides that when a bond for appearance of a person in a case under the Code is forfeited for breach of a condition, then his personal and surety bonds shall stand cancelled. Section 446A shall operate without prejudice to Section 446 i.e. for forfeiture of the bonds, action is open to be taken under Section 446, Cr. P.C. when bail-bonds stand cancelled under Clause (a) of Section 446, Clause (b) provides, how the court is required to proceed The "Court" in the main Clause (b) as well as in its proviso is the court for appearance before whom the bond was executed. Clause (b) is couched in negative language and it prohibits the release of such person whose bond for appearance stand cancelled if the court is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition, i.e. when the breach is willful, deliberate, and without any sufficient cause. Then such a person shall not be released by the court before whom he is required to appear only on bond. But the proviso empowers that court to release that person, in that case, upon the execution of a fresh personal bond and surety bond for such sum of money as the court thinks sufficient. The proviso also uses the expression "may", which denotes that the exercise of the power under the proviso is discretionary and if the circumstances warrant, the court is free not to exercise the power in favour of the person for releasing him on fresh personal bond and surety bond. The exercise of the power under the proviso is subject to the other provisions of the Code, if the court releases the person upon fresh personal and surety bond, then the State or the aggrieved party may proceed to get the order set aside or to move for cancellation of bail under the relevant provision. In case, the power is not exercised in favour of the person for his release, then that aggrieved person can move the higher court as the order under the proviso is clearly made subject to the other provisions of the Code. To our mind, if the legislature did not intend to confer discretion on the Court, the legislature would have used different expression making it obligatory for the court to release the person upon the execution of a fresh bond and surety bond. It is clear that the legislature did not make it obligatory, which means that it is left to the discretion of the court depending on the facts and circumstances of each case to exercise the power in favour of the person or not. It is also noteworthy that variance in the amount of personal bond or surety bond can be made by the court, in case, discretion is exercised in favour of that person. Whatever, sum of money is thought sufficient by the court, the person may be asked to execute the personal and surety bonds for that sum. Such an interpretation of Section 446A, Cr. P.C., in our opinion, would in accord with the legislative intent as the legislature intended to make the provisions of bail stringent and difficult. In case the persons are allowed to be released on bail as of right, despite forfeiture of bonds, in our opinion, the legislative intent would be rendered nugatory and the trial of the cases, would be protracted at the sweet-will of the accused. It is true that it is open to the other side to move the competent court for cancellation of bail, where power is exercised in favour of the accused, but that does not mean that the court before whom the person is required to appear is powerless and allow the accused to protract the trial at his sweet-will, even when his bond for appearance stands forfeited and cancelled. The cancellation of bail order is an independent provision, which can be resorted to, on the grounds other than nonappearance. But under Section 446A, Cr. P.C. the court can exercise the control over the accused for his regular appearance by exercising the discretion against him. Despite the bail order passed by any court, the discretion can be so exercised by such court, if the circumstances so warrant under Section 446A.

So far as Section 447, Cr. P.C. is concerned, in our opinion, this provision deals with surety and makes a provision for three situations viz. (1) insolvency of surety, (2) death of surety and (3) forfeiture of bond under Section 446, Cr. P.C. In case, of insolvency or death, the person from whom such security was demanded, may be ordered to furnish fresh security in accordance with the directions of the original order. So far as the third situation is concerned, we are of the opinion that the matter is covered by Section 446A. Cr. P.C. and Section 447 to that extent, could be suitably amended. However, to our mind, there is no inconsistency between the two provisions. Section 447 is an enabling provision empowering the court to demand fresh security in accordance with the directions of the original order. The court may act under Section 447, Cr. P.C. or may act under Section 446A, Cr. P.C. for demanding fresh security. The corresponding Section of Section 447, of the Criminal P.C. 1898 is, Section 514A. Before introduction of Section 514A, a view was taken by some courts that when the bond was forfeited, the person from whom security was demanded, could not be required to find fresh security without fresh proceedings. By introduction of Section SWA, this dis-ability was removed. So, now under Section 447, Cr. P.C. or for that matter under Section 446A, fresh security can be demanded from the person from whom the security was demanded.”

13.2. On consideration of the aforesaid provisions, I am of the opinion that when a bond for appearance in a case of a person is forfeited for breach of a condition, his bond and surety bond shall stand canceled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bond. It would be within the, discretion of the court to release him or not to release him upon the execution of fresh personal or surety bond. In case, the court releases him, the fresh security may be demanded from him in accordance with the directions of the original order or the court may order for higher amount.

13.3. In any event, procedure contemplated under Section-446 CrPC has to continue. The persons executing bonds may be called for providing their explanation and in the absence thereof, for the payment of penalty of bond amount. Since accused and surety execute their bonds and such bonds are two different things, both the persons i.e. accused and surety may be called for such explanation or payment of penalty. The only difference will be that while surety can be sent to civil imprisonment in case the penalty is not recovered even by attachment warrant, whereas the accused cannot be so sent.

13.4. Since however, the Section-446(1) itself provides a discretionary power to the Court by using the expression “may”, the Court in a given situation may not call any or either of the accused or surety for such explanation. However, such discretion must be exercised on settled judicial discipline.

PS: Different types of bonds and their effect:

14. Section 446 CrPC thus contemplates two different stages in the proceeding before the Court. In the first stage, the Court has to satisfy itself that a bond has been forfeited which means that the condition imposed upon the executant of the bond and agreed to by him had been contravened, If the bond is for appearance of the accused in Court, as it is in this case, the fact that the accused had absented himself is sufficient to constitute a breach of the condition and therefore for the forfeiture of the bond. If, on the other hand, the bond is for keeping peace or being of good behaviour, the person who alleges that the person bound under the bond has infringed the condition laid upon him, he must furnish proof to the satisfaction of the Court that there has been such infringement. It is only on such proof that the bond can be forfeited. There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both the cases, it has to be proved to the satisfaction of the Court that there has been a forfeiture of the condition of the bond and the Court has also to record the grounds of such proof. But so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary.

14.1. The above difference is noted only to clarify that the discussion held above is only in respect of a bond executed for appearance of a person before the Court. For other type of bonds other requirements are there to be dealt with.

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