CrPC Section 446- Procedure When Bond Has Been Forfeited

Section 446 of the Criminal Procedure Code (CrPC), 1973 (hereinafter referred to as “the Code”) provides for the procedure that should be followed when a bond, be it a bond for good conduct or a bail bond, is forfeited. This section primarily talks about the legal measures that the Court has the powers to take or must take when an individual bound by any such bond fails to act in accordance with its conditions. This provision goes to ensure that people who provide guarantees - be it for maintaining good behaviour or appearance in court - will be held responsible if they don’t comply with the conditions. This provision seeks to strike a balance between the interests of justice and providing sufficient discretion to the court to take necessary measures in contradictory scenarios.

Legal Provision: Section 446- Procedure When Bond Has Been Forfeited

“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.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: [Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]

(3) The Court may, [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. ”

Simplified Explanation Of CrPC Section 446

Section 446 of the Code lays down what happens when an individual who signed the bond, be it a bond for maintaining good conduct or a bail bond, fails to follow the conditions. The Section provides for the following:

Intimation Of Bond Forfeiture

When the bond is broken, the Court informs the individual by sending him and his guarantors a notice, asking them to explain why the Court shouldn’t take the money promised in the bond.

Decision Of The Court

When an individual or his guarantors fail to supply a good reason for breaking the bond, the Court can ask for the bond amount to be paid.

The Court has the discretion to adjust the bond amount by reducing it if they find it reasonable.

Amount Recovery

If the individual of his guarantors fails to pay the penalty, the Court can collect the same like a fine or a civil debt.

Non-Payment Of Penalty

In serious matters, when an individual breaks the bond term and doesn’t pay the penalty, the Court can sentence him with imprisonment for defying the court’s orders.

Practical Examples Illustrating CrPC Section 446

The usage and significance of Section 446 of the Code can be understood with following practical illustrations:

Fails To Be Present In The Court (Bail Bond)

Rahul, accused of a crime, is granted bail by the Court. One of the bail conditions states that he has to appear in court on certain dates. A surety too signs the bond, guaranteeing that Rahul will follow the bond conditions. If Rahul fails to appear in the Court on mentioned dates, the court will declare the bond forfeited. The court will send a notice to Rahul and his surety, asking them to explain the reasons why the Court should not collect the bond amount. If the Court doesn’t receive any reasonable explanation, the Court can ask Rahul for the bond penalty to be paid. If he fails to do that, the court can collect the same as a fine or through other legal recourse.

Bond For Good Conduct

Shyam is guilty of causing a public disturbance. But he is released on a bond for maintaining good conduct. That means he ensures that he will not participate in any illegal activities for a determined period, and his uncle (the surety) guarantees this. But he goes on to violate this bond by engaging in theft in the specified period. The Court sends a notice to him and his uncle asking them to explain why the amount should not be forfeited. They both fail to supply a valid reason and the court instructs them to pay the penalty.

Bond For Witnesses

When there is a criminal case, a witness may be needed to sign a bond promising that they will show up in the court to testify on the mentioned dates. But when a witness fails to mark their presence, the trial gets unnecessarily delayed. In such scenarios, the court issues a notice to the witness and the surety asking them to explain why the bond should not be forfeited. If they fail to provide a valid reason for their absence, the court can impose a penalty along with ordering them to pay the bond amount. The Court can decrease the bond amount if it seems justified.

Penalties And Punishments Under CrPC Section 446

Following penalties can be imposed under Section 446

• When someone breaks the terms of a bond, the same can be declared forfeited by the Court and it can send a notice to both the individual and the surety asking why the bond should not be forfeited.
• If the Court doesn’t get a valid reason, it can ask for the payment of the penalty amount. However, the Court can reduce the amount if it seems justified. The Court can also enforce it as a fine or adopt legal ways to recover the same.
• In serious matters, the Court can sentence the individual with imprisonment for breaking the bond and not paying the penalty amount. But the prison term cannot be more than the maximum punishment that can be imposed for failure to follow the terms of the bond.
• Even the surety can be liable to pay the penalty amount when a person breaks the bond terms. The surety is obligated to pay the bond till the full extent.
• The Court can reduce or waive the penalty when it feels that imposing the full penalty would be unjustified.

Notable Case Laws Related To CrPC Section 446

Few notable cases are discussed as follows:

Dayal Chand vs. State Of Rajasthan (1981)

In this case, petitioner Dayalchand was the surety for the accused. The accused for whom he had signed the bond as a guarantor, ran away. Owing to this, he had to pay a bond of Rs. 5,000. It came to the attention of the High Court that the accused had left India and it was impossible for Dayal Chand to bring him back or secure his attendance. Hence, the Court decreased the bond amount and the petitioner had to pay Rs. 4,000. The Court took this step finding it justified as per the circumstances. Moreover, the Court asserted that surety was not careless or guilty of helping the accused leave India.

Sunita vs. State Of Himachal Pradesh (2024)

In this case, the Court described the process to be followed under Section 446 when the bond has been forfeited. The Court laid down 2 key stages:

1. In the first stage, the Court has to establish that the bond has been forfeited. This can be done by ensuring that the conditions laid down in the bond have been broken or not complied with by the person bound by the bond.
2. In the second stage, the Court directs its attention towards recovering the bond amount. During this stage, the Court should send a notice to the person bound by the bond and ask them to explain the valid reason for breaking the bond or to pay the penalty for the same.

The Court asserted that when the two-staged process is not followed, specifically where the court does not issue the show cause notice, it results in the violation of due process. Any succeeding action where the Court imposes a penalty or orders civil imprisonment is not in accordance with the law.

In this case, the Court found the trial court to be erroneous in issuing a composite order where the Court forfeited the surety bond and directed the person to pay the penalty without allowing the surety to produce a valid reason why the bond should not be forfeited. Moreover, the Court did not give the petitioner (surety) a sufficient chance to produce the accused (Vinay Kumar). The Court set aside the order given by the trial court and directed it to reconsider the matter. Also, the Court asked the trial court to follow the procedural requirements given under Section 446 of the Code.

Recent Changes

Section 446 of the Code lays down the process that has to be followed when a bond has been forfeited. Section 446 of the Code has been retained without any changes under Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Conclusion

Section 446 of the Code proves effective in ensuring that an individual does not dare to breach the terms of his bond. In case he does, he has to deal with the consequences such as paying the bond amount or facing civil imprisonment in serious matters. By incorporating a structured procedure for forfeiture and enforcement of the penalty, this provision moves in the direction of judicial efficiency. Not only that but the lawmakers have struck a balance between the punitive aspect of this provision and the fairness towards the individual bound by the bond.