The Rajasthan High Court has reaffirmed that bail forfeiture under Section 446 of the Cr.P.C. cannot be triggered by a single unexplained absence without affording the accused an opportunity to justify non-appearance. This ruling reinforces the principle that procedural safeguards must precede punitive measures, even in cases involving financial bonds.
Background & Facts
The Dispute
The petitioner, Tarun Upadhyaya, was granted bail in a case under the Negotiable Instruments Act. On the date fixed for recording his statement under Section 313 Cr.P.C., he failed to appear before the trial court. Without any inquiry into the reason for his absence, the court forfeited his bail bond and issued an arrest warrant under Section 446 Cr.P.C., initiating proceedings against his sureties.
Procedural History
- 2021: Criminal Case No.756/2021 initiated against the petitioner for cheque dishonour
- Prior to 2025: Petitioner had been regularly appearing in court
- 09.12.2025: Trial Court forfeited bail bonds and issued arrest warrant under Section 446 Cr.P.C. without hearing the petitioner
- 27.01.2026: Petitioner filed criminal miscellaneous petition before the Rajasthan High Court seeking quashing of the order
Relief Sought
The petitioner sought quashing of the forfeiture order and restoration of his bail bonds, arguing that the trial court acted arbitrarily without considering his consistent compliance or providing any opportunity to explain his absence.
The Legal Issue
The central question was whether Section 446 Cr.P.C. permits immediate forfeiture of bail bonds and issuance of arrest warrants upon a single unexplained absence, or whether the court must first afford the accused an opportunity to show cause.
Arguments Presented
For the Petitioner
Counsel relied on the court’s own prior order dated 22.10.2024 in Tarun Upadhyay v. State, where the same petitioner’s bail forfeiture was quashed on identical facts. He argued that Section 446 Cr.P.C. is procedural in nature and requires a reasonable inquiry into the cause of absence before forfeiture. He emphasized that the petitioner had appeared regularly for over four years and that the non-appearance was due to lack of communication, not wilful defiance.
For the Respondent
The Public Prosecutor conceded that the petitioner had been regularly appearing and could not dispute the factual context. However, he defended the trial court’s action as a routine measure to ensure compliance, asserting that the court had inherent power to enforce bail conditions.
The Court's Analysis
The Court examined the language and purpose of Section 446 Cr.P.C., noting that it is not a punitive provision but a mechanism to enforce appearance. The Court held that forfeiture is not automatic and must be preceded by an opportunity to explain. It distinguished between mere non-appearance and wilful default, observing that the trial court had not recorded any reason for the absence or considered the petitioner’s long-standing compliance.
"The provision under Section 446 Cr.P.C. is not meant to be invoked as a first resort for a single lapse, especially when the accused has been consistently present. The court must satisfy itself that the absence was deliberate and without reasonable cause."
The Court further relied on its own precedent in the earlier order, emphasizing consistency in judicial application. It noted that initiating proceedings against sureties without inquiry violated the principles of natural justice and rendered the order arbitrary.
The Verdict
The petitioner won. The Court held that Section 446 Cr.P.C. cannot be invoked summarily for a single absence without affording the accused an opportunity to explain. The forfeiture order and arrest warrant were quashed, the bail bonds were restored, and the trial court was directed to proceed with the case on the next date fixed.
What This Means For Similar Cases
Bail Forfeiture Requires Prior Inquiry
- Practitioners must now argue that Section 446 Cr.P.C. mandates a hearing before forfeiture, even if the accused is absent
- Courts cannot rely on mechanical application of the provision; absence must be evaluated contextually
- Failure to record reasons for forfeiture renders the order liable to be set aside on writ petition
Consistent Compliance Is a Material Factor
- A history of regular appearances must be pleaded and proved as a mitigating circumstance
- Courts must distinguish between inadvertent lapses and deliberate defiance
- Petitioners should file affidavits detailing prior appearances to support applications for bail restoration
Precedent Binding Within Same Court
- Orders passed by co-ordinate benches on identical facts are binding unless overruled by a larger bench
- Practitioners should cite prior rulings from the same court to challenge arbitrary bail forfeitures
- This judgment reinforces the doctrine of stare decisis within High Court jurisdictions
