The Himachal Pradesh High Court has clarified that the forfeiture of a surety bond under Section 446 of the CrPC is automatic upon the accused's failure to appear in court, and no prior notice to the surety is required for such forfeiture. The Court emphasized that the obligation to issue a show-cause notice arises only at the subsequent stage of penalty recovery, not at the stage of bond forfeiture.
Background & Facts
The Dispute
The appellant, Ravi Kumar, executed a bail bond as surety for the accused, Ravi Kumar (S/o Parveen Kumar), in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The bond stipulated that if the accused failed to appear before the Court, the surety would pay ₹1,00,000 to the State of Himachal Pradesh. The accused failed to appear on 09.07.2024, prompting the Trial Court to cancel the bail bonds and initiate proceedings under Section 446 of the CrPC.
Key Facts
- The accused failed to appear before the Special Judge, Chamba, on 09.07.2024
- The Trial Court issued bailable warrants against the accused on 09.07.2024
- The accused was declared a proclaimed offender on 10.07.2024
- A notice dated 09.07.2024, returnable on 20.07.2024, was served upon the appellant as surety
- The appellant failed to appear on 20.07.2024; bailable warrants were issued against him
- The appellant appeared before the Court on 07.09.2024 and submitted that he became aware of the accused’s non-appearance only on that date
- The appellant claimed the accused had sold his house and relocated, possibly in police or judicial custody
- No formal order of forfeiture of the bond was passed by the Trial Court prior to issuing the show-cause notice
- On 17.09.2024, the Trial Court ordered the appellant to pay ₹1,00,000 and directed the District Collector to recover the amount as arrears of land revenue
Procedural History
- 09.07.2024: Accused fails to appear; bail bonds forfeited; proceedings under Section 446 CrPC initiated
- 09.07.2024: Notice issued to appellant, returnable on 20.07.2024
- 20.07.2024: Appellant fails to appear; bailable warrants issued
- 07.09.2024: Appellant appears before Court, submits reply explaining inability to produce accused
- 17.09.2024: Trial Court orders payment of ₹1,00,000 and issues warrant for recovery under Section 421 CrPC
- 22.09.2024: Appellant files appeal before High Court (Cr. Appeal No. 561 of 2024)
- 19.06.2024: Matter referred to larger Bench in Madan Verma v. State of H.P. (Criminal Appeal No. 344 of 2023)
- 17.03.2026: Appeal heard finally by Division Bench without awaiting reference decision
- 04.05.2026: Judgment delivered by Justice Rakesh Kainthla
Relief Sought
The appellant sought quashing of the order dated 17.09.2024, setting aside the recovery warrant, and declaration that no penalty could be imposed without prior notice before forfeiture of the bond.
The Legal Issue
The central question was whether Section 446 of the CrPC requires a show-cause notice to be issued to the surety before the forfeiture of a bail bond, or whether forfeiture occurs automatically upon the accused’s non-appearance, with notice being required only for the subsequent recovery of the penalty.
Arguments Presented
For the Appellant
The appellant’s counsel contended that the Trial Court’s order was illegal because no formal order of forfeiture was passed before issuing the show-cause notice. He relied on Dhanvir v. State (1975 Cr.L.J. 1347) and Narata Ram v. State of H.P. (1994 Cr.L.J. 491), arguing that forfeiture and penalty recovery are two distinct stages under Section 446 CrPC, and that notice to show cause cannot precede forfeiture. He further argued that the notice served was not in Form 48 of Schedule II, violating natural justice, and that the appellant was not given a meaningful opportunity to produce the accused before penalty imposition.
For the Respondent/State
The State contended that the accused’s non-appearance on 09.07.2024 automatically triggered forfeiture of the bond under Section 446 CrPC. The notice issued on 09.07.2024 was sufficient to initiate proceedings, and the appellant had ample opportunity to explain his failure to produce the accused. The State relied on Jagannath Rout v. State of Orissa (1975 Cri LJ 1684), Sham Sunder v. State (NCT of Delhi) (1990 Cri LJ 2370), and Thundichi v. State of Kerala (2009 SCC OnLine Ker 6527), asserting that no prior notice is required for forfeiture, only for penalty recovery.
The Court's Analysis
The Court undertook a comprehensive review of Section 446 CrPC and a series of precedents from the Supreme Court and various High Courts. It examined the statutory language, the structure of the provision, and the distinction between the two stages of proceedings under Section 446: (1) forfeiture of the bond, and (2) recovery of the penalty.
The Court observed that Section 446(1) provides that when a bond for appearance is forfeited, the Court shall record the grounds of such proof and may call upon the surety to pay the penalty or show cause why it should not be paid. The Court emphasized that the phrase "it is proved to the satisfaction of the Court" refers to the fact of non-appearance, which is a matter of judicial observation and requires no additional evidence.
"The very fact that the accused had absented himself is sufficient to constitute a breach of the condition and therefore for the forfeiture of the bond."
The Court rejected the appellant’s reliance on Narata Ram v. State of H.P., clarifying that while that case held that an opportunity to produce the accused cannot be granted after forfeiture, it did not hold that notice must precede forfeiture. The Court applied the inversion test to determine the ratio decidendi of Narata Ram and concluded that the issue of pre-forfeiture notice was neither raised nor decided in that case, rendering any observation on the point obiter dicta.
The Court further held that the notice dated 09.07.2024, though not in Form 48, was sufficient to apprise the appellant of the forfeiture and the requirement to show cause. The appellant’s own reply dated 07.09.2024 confirmed his awareness of the forfeiture and his inability to produce the accused, thereby waiving any procedural defect.
The Court cited Ghulam Mehdi v. State of Rajasthan (AIR 1960 SC 1185) and Fatehchand Wadhumal v. Emperor (AIR 1940 Sind 136) to affirm that notice is required only for the recovery of the penalty, not for forfeiture. It also relied on Thundichi v. State of Kerala (2009 SCC OnLine Ker 6527), which held that in bonds for appearance, mere absence of the accused is sufficient for automatic forfeiture, and no inquiry into the reason for absence is required at that stage.
The Court concluded that the Trial Court’s procedure was legally sound: forfeiture occurred automatically on 09.07.2024, and the subsequent notice and order were valid steps toward penalty recovery.
The Verdict
The appeal was dismissed. The Court upheld the order dated 17.09.2024, directing the appellant to pay ₹1,00,000 to the State of Himachal Pradesh. The recovery warrant issued to the District Collector was affirmed. The Court found no illegality in the procedure followed and held that the appellant’s failure to produce the accused, coupled with his casual attitude, justified the imposition of the full penalty. No reduction in the penalty was warranted.
What This Means For Similar Cases
Forfeiture Is Automatic, Not Discretionary
- Practitioners must advise sureties that non-appearance of the accused triggers automatic forfeiture under Section 446 CrPC - no formal order is required
- Any argument that forfeiture requires a prior judicial order or notice is legally untenable
- Courts need only record the fact of non-appearance from the court record; no additional evidence is necessary
Notice Is Only for Penalty Recovery, Not Forfeiture
- A show-cause notice under Section 446(1) must be issued after forfeiture, not before
- The notice must clearly state that the bond has been forfeited and invite explanation for non-payment
- Failure to issue such notice before recovery renders the penalty order void, but does not invalidate the forfeiture itself
Procedural Compliance in Notices Is Critical
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Notices must conform to Form 48 of Schedule II CrPC to satisfy natural justice
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Mechanical or generic notices lacking specific reference to the bond terms and accused’s non-appearance are vulnerable to challenge
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Even if the surety responds, a defective notice may still invalidate the penalty recovery process
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Practitioners should file applications under Section 446(3) to request remission of penalty if the surety can prove genuine efforts to produce the accused
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Courts retain discretion under Section 446(3) to remit part of the penalty - this should be argued proactively
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In NDPS and other serious cases, sureties must be warned that their liability is absolute upon the accused’s default - no excuse for non-appearance is accepted at the forfeiture stage
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Courts may consider the surety’s conduct during the show-cause stage - failure to cooperate or provide credible information may result in full penalty imposition
