This appeal arises from the order passed by the court below under Section 446 of the Code of Criminal Procedure (‘Code’, for short) directing the appellant to pay penalty of Rs.3,000/- and in default of payment of penalty and on exhausting the steps contained in Section 421 of the Code to undergo imprisonment in civil jail for a period of two months each.

2. The appellants are the sureties of an accused in a sessions case. They had executed a bond for Rs.25,000/- for appearance of the accused before the sessions court. On one particular day, the accused failed to appear and hence the court issued non-bailable warrant and notice against the sureties. A case was also registered against them and after giving sufficient opportunity to show cause, the appellants were directed to pay penalty. They were also directed to undergo imprisonment in civil jail for a period of two months. The said order is under challenge in this appeal filed under Section 449 of the Code.

3. On going through the order under challenge, I find that the order is per se illegal. It is seen from the order under challenge itself that there was no “default” on the part of the accused, which resulted in forfeiture of bond. The court below has written in the order itself that the day on which the warrant was issued against the accused, through the accused did not appear, his counsel had filed an application stating that the accused was present before the court in the morning, but he left the court since he had stomach pain. But the said application was rejected without assigning any reason. It can also be seen from the proceedings that the accused had appeared before the court on the very next posting. In such circumstances, it cannot be said that the accused forfeited the bond as contemplated under Section 446 of the Code.

4. A bond for appearance can be said to be forfeited, only if there is a willful default on the part of the accused in not appearing before the court. It is needless to say that an accused can be absent in court due to various reasons on a particular occasion. When the counsel files an application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot be said to have forfeited the bond by reason of any willful default. It is only in cases where there is willful default on the part of the accused to appear in court, forfeiture of bond will follow and penalty will incur.

5. In the above circumstances, there is absolutely no proof, before the court to show that the accused had forfeited the bond. In the absence of any such proof that the bond has been forfeited, the court shall not proceed under Section 446(1) of the Code against the accused or the sureties. It is also evident from the order under challenge itself that the court has not recorded any ground of proof of satisfaction that the bond has been forfeited. The mere fact that the accused failed to appear in court once, and despite filling of an application warrant was issued, will not suffice to hold that bond is forfeited.

6. It is not the failure of the sureties in producing the accused before the court which will incur penalty. It is the willful default on the part of the accused in not appearing before the court which would lead to forfeiture of bond and incurring of penalty. But the sureties have been directed to pay penalty, since they failed to produce the accused before the court. This is not proper. It is also seen from the order under challenge that the accused had entered appearance on the very next day and offered fresh sureties and executed fresh bond. Still the court has proceeded against the sureties for which the reason are not satisfactory.

7. The court below called upon the sureties to show cause whether there is any reason for the failure of the accused in appearing in court or in producing the accused in court on a particular day. Section 446(1) of the Code does not provide for issuance