Section 446 CrPC | Separate Orders Are Required To Be Passed At The Time Of Cancellation Of Bail Bonds & Imposition Of Penalty: Himachal Pradesh High Court
The Appeal before the Himachal Pradesh High Court challenged the order of the Trial Court imposing a penalty of Rs 50,000 on the appellant, and issuing a recovery warrant, under Section 421 of the CrPC.
Justice Virender Singh, Himachal Pradesh High Court
The Himachal Pradesh High Court explained that as per Section 446 CrPC, separate orders are required to be passed, firstly at the time of cancellation of the bail bonds and secondly, when the penalty is imposed.
The Appellant had preferred an appeal, under Section 449 of the Code of Criminal Procedure (CrPC), against the order of the Trial Court imposing a penalty of Rs 50,000 on the appellant, and issuing a recovery warrant, under Section 421 of theCrPC.
The Single Bench Of Justice Virender Singh explained, “Bare reading of the provisions of Section 446 Cr. P.C. makes out a case, according to which, separate orders are required to be passed by the Court, firstly at the time of cancellation of the bail bonds and; secondly, when the penalty is imposed.”
Advocate S. Kainthla represented the Appellant, while Advocate H.S. Rawat represented the Respondent.
Factual Background
One Kamal Kumar (accused) was arrested by the Police in connection with a case FIR registered under Sections 354-A and 506 of the Indian Penal Code (IPC) and Section 8 of the Protection of Children from Sexual Offences Act (POCSO Act). The Accused filed an application under Section 439 CrPC before the Trial Court. He was released on bail subject to his furnishing personal bond, in the sum of Rs. 50,000. Consequently, the application for acceptance of personal bond and surety bond was allowed by the JMFC.
While releasing the accused Kamal Kumar on bail, the appellant herein stood surety by giving a solemn undertaking to produce the accused before the trial Court, on every date of hearing. However, the accused had not put appearance before the trial Court, where a charge sheet against him was filed. Efforts were made to secure his presence by issuing bailable warrants, but his presence could not be secured. The Trial Court imposed a penalty of Rs. 50,000 upon the appellant, and recovery warrants were issued to recover the said amount. The appellant filed the appeal on the ground that the Trial Court had failed to appreciate the fact that he had made sincere efforts to produce the accused.
Reasoning
Referring to Section 446 CrPC, the Bench said, “Bare perusal of the aforesaid provision shows that Legislature, in its wisdom, has provided civil and penal consequences, in case of forfeiture of the bond. Once, the orders passed in those proceedings culminated into civil, as well as penal action, against the person who has violated the solemn undertaking, then the person who will be affected by the order must get ra easonable opportunity to contest those proceedings.
The Bench also referred to the judgment of the Apex Court in Ghulam Mehdi versus State of Rajasthan (1960) wherein it has been held that before forfeiting the surety bond, show cause notice is essential. “Hearing of the affected party, i.e. the appellant, is mandatory, as non-affording of such opportunity of hearing would be gross violation of principle of natural justice. Even after forfeiting the surety bond to the State of H.P., the learned trial Court has failed to issue show cause as to why the amount of bail bond not be realised from him, by way of penalty”, it said.
As per the Bench, separate orders were required to be passed by the trial Court, firstly, at the time of cancellation of bail bonds and secondly, at the time of imposing penalty. “The legislature, in its wisdom, has used the words “if sufficient cause is not shown for imposing penalty”, then hearing of the person, affected by the said order”, is mandatory”, it added.
Noting that a composite order had been passed by the trial Court by depriving the appellant (surety) of putting forward his plea, concerning non-production of the accused, the Bench set aside the same. "Consequently, this Court is left with no option, but to set aside the impugned order dated 25.5.2023, passed by the learned trial Court, and remand the matter back to the learned trial Court to decide the proceedings, under Section 446 Cr. P.C. afresh, after issuing notice, as observed above”, it concluded.
Cause Title: Bihari Lal v. State of H.P. & others (Neutral Citation: 2025:HHC:13602)
Appearance:
Appellant: Advocate D.S. Kainthla
Respondent: Advocates H.S. Rawat, Additional Advocate General Mohinder Zharaick
