BOND & ITS FORFEITURE

Sec.446 mentions the procedure for forfeiture of the bond. It applies to all bonds
taken under the Code. If a Magistrate takes a bond from the accused to appear
before another Magistrate, the bond is not invalid, and can be forfeited under this
Section. Steps to be followed in cases of breach of bond/ bail bonds

(i) The wording in the bond be constructed strictly. Regarding forfeiture is

concerned, once there is a breach by the accused by not appearing
before the court, the forfeiture is not automatic. The court has to pass a
clear cut order of forfeiture of bail bond and cancellation of bail
followed by notice to the sureties.
(ii) Notice has to be issued under Sec.446after forfeiture calling upon the
surety to pay the penalty or to show cause why penalty not be imposed
on him. What the Section requires is that the Magistrate satisfies himself
that the conditions of the bond having been violated, the bond stands
forfeited.
(iii) There is no need to issue notice before the forfeiture and the notice need
be sent under Sec.446only after forfeiture of the bond. Subsequent to
service of notice distress warrants for the realization of sum forfeited
from the surety can be issued. Once the surety is produced before the
court on the strength of distress warrant with an execution report that
the surety has no sufficient means to pay the forfeited amount which is
mentioned as a penalty in Sec.446, the court can proceed as per
provision under sections 421 or 431 of the Cr.P.C. If the bond amount
is not recovered by the above process the surety shall be liable to
imprisonment in civil jail for a term which may extend to six months
under Sec.446(2). It may be clarified that in a police case since state is
the party therefore any amount to be deposited for civil imprisonment
 shall be made by the government. In case of insolvency or death of the
surety recourse can be taken to section 447.
(iv) The records of the court must reflect the satisfaction of the judge about
the absence of the accused. Forfeiture of the bond without formal order
about the satisfaction of the court that bond has been forfeited is bad in
law. Before forfeiture the court has no jurisdiction to issue notice.
(v) The satisfaction of the court must be based upon some proof. If the
accused executed bond for his appearance, non-appearance itself is
sufficient proof about the forfeiture.
(vi) On the next day of the forfeiture of the bond surety produces the accused
still it is a breach of condition of the bond. But the court may, in such
cases take a lenient view in the matter of recovery of the bond amount
from the accused and sureties.
(vii) Before imposing penalty it is mandatory that the sureties are heard. The
notice issued itself is for paying the penalty or to show cause why it not
be paid. If the sureties are present in pursuance of notice they be heard
and order has to be passed.
(viii) If the accused is arrested in connection with some other crime and the
sureties are unable to produce the accused that may be a ground not to
forfeit the bond. In other words, if the accused is in a jail then the
sureties can plead their inability to produce the accused.
(ix) Once bond is forfeited, it is no longer valid and if the accused is to be
released on bail again, a fresh bond has to be executed. It cannot be
argued that the liability of the sureties is co-extensive with that of the
accused. Such a principle is not applicable in criminal cases.
(x) The Magistrate can impose penalty on the accused as well as sureties
for the breach. Bond of accused and sureties are independent and
therefore, when the bail is cancelled and the bond is forfeited, logically
the accused is also supposed to pay the forfeited amount on his
 subsequent surrender or arrest unless it is remitted under
Sec.446(3).(Ramlal v. UP AIR 1979 SC 1498).
(xi) As discussed above it may be pointed out further that the court has the
power not only to realize the bond amount from the surety but also from
the accused on whose non appearance the bail has been cancelled. The
is abundantly clear from Form number (M81) of the Criminal Court
Rules Vol. II of Hon‘bleHigh Court of Jharkhand wherein the accused
and the sureties separately undertake and bind themselves under the
bond to forfeit to government the sum of rupees for which they have
stood surety. Meaning thereby the court can practically ask the accused
when he reappears before the court after the cancellation of his earlier
bail to deposit the amount of earlier bond which had been forfeited on
account of his nonappearance / misuse.
(xii) The court has ample power to remit the penalty, penalty here means the
bond amount, which was forfeited. There is no rule that entire bond
amount be imposed as penalty. But remitting of penalty can be done
only at the time of imposing the penalty. Subsequently penalty can be
remitted only by the appellate court. (Jameela v. State of Kerala 2004
Cri LJ 3389 :2004 SCC OnLine Ker 436)
(xiii) As per Sec.446A of the Code, if the bond is for appearance of a person
in a case and it is forfeited for breach of condition, the bond executed
by the accused as well as sureties, if any, shall stand cancelled.
Thereafter such a person cannot be released on personal bond, if the
court is satisfied that there is no sufficient cause for non-compliance
with the condition.
(xiv) Even if the bond is executed as per the direction of any superior court,
this provision is applicable. In case of the sureties becoming insolvent
or dead the accused be given an opportunity to produce sufficient
solvent sureties.
(xv) The court has power to initiate prosecution for offence punishable under
section 229A of IPC for failure by person released on bail or bond to
appear in court