Chapter XXXII
Section 446 CrPC: Procedure when bond has been forfeited
New Law Update (2024)
Section 486 BNSS
TRIAL COURT
Punishment
Procedural – Judgment / Sentencing
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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.
Important Sub-Sections Explained
Section 446(1)
This sub-section lays down the initial procedure for bond forfeiture, mandating the Court to record reasons for such forfeiture and subsequently issue a notice to the person bound by the bond, calling upon them to pay the penalty or explain why it should not be paid.
Section 446(2)
This crucial sub-section details the recovery mechanism for the forfeited penalty, treating it akin to a fine. It further stipulates that if the penalty remains unpaid and unrecoverable, the surety may be liable for imprisonment in civil jail for a term extending up to six months.
Landmark Judgements
Mohammed Kunju v. State of Karnataka (2000):
This landmark Supreme Court judgment clarified that proceedings under Section 446 CrPC are penal in nature, requiring strict compliance with the prescribed procedure. It underscored the necessity for the Court to record grounds for bond forfeiture and provide the surety with an opportunity to show cause before directing recovery of the penalty.
Draft Format / Application
IN THE COURT OF THE [Designation of Court, e.g., CHIEF JUDICIAL MAGISTRATE / SESSIONS JUDGE], [City], [State]
Criminal Misc. Application No. ______ of 20XX
IN THE MATTER OF:
[Name of Applicant/Surety], Son of/Daughter of/Wife of [Father’s/Husband’s Name], Aged about [Age] years, Residing at [Address]
…APPLICANT
VERSUS
THE STATE OF [State Name]
…RESPONDENT
APPLICATION FOR REMISSION OF PENALTY UNDER SECTION 446(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH:
1. That the Applicant stood surety for [Name of Accused/Principal Debtor] in [Case/FIR No. and Year, e.g., FIR No. XXX/YYYY P.S. ZZZZ] before this Hon’ble Court.
2. That a bond for appearance/production of property was executed by the Applicant, which was subsequently forfeited by an order dated [Date of Forfeiture Order].
3. That this Hon’ble Court was pleased to impose a penalty of Rs. [Amount]/- upon the Applicant vide order dated [Date of Penalty Order] under Section 446 CrPC.
4. That the Applicant states that due to [state genuine reasons for non-compliance or forfeiture, e.g., unforeseen circumstances, genuine mistake, financial hardship, the accused has since appeared etc.], the conditions of the bond could not be fulfilled/the penalty could not be paid.
5. That the Applicant is a person of modest means and imposing the full penalty would cause undue hardship. The Applicant tenders an unconditional apology for the non-compliance.
6. That the Applicant undertakes to abide by any further directions or conditions imposed by this Hon’ble Court.
7. That in light of the above, it is just and expedient that a portion of the penalty imposed be remitted.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
a) Remit such portion of the penalty imposed under Section 446 CrPC as deemed fit and proper by this Hon’ble Court;
b) Pass any other order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.
Date: [Date]
Place: [Place]
(Signature of Applicant/Counsel)
[Name of Applicant/Counsel]