K. Hema, J.

It is noticed that different criminal courts adopt different procedure in a proceedings under S.446 of the Code of Criminal Procedure ('the Code' for short). Quite often, courts commence proceedings under S.446 of the Code, even without being satisfied of the pre-requisites. Orders are seen passed which may not reflect the grounds of "proof" of satisfaction of the court that 'the bond has been forfeited'. Courts also do not advert to in the orders, anything regarding such 'proof', though recording of the grounds of "proof" of satisfaction is mandatory under the section.

2. On the mere failure of accused in appearing in court either for a day of more, certain courts pass orders 'to forfeit' the bond under S.446 of the code, as though 'forfeiture' is an event to follow the court's order. In many cases, courts also order 'penalty', as if it is a punishment awarded by the court under S.446 of the Code for breach of terms of bond. It is also noticed that when an accused appears, court puts certain questions to him and record the questions and answers, and immediately proceed to forfeit the bond and impose a penalty, without giving sufficient opportunity to show cause.

3. A cluster of questions therefore, shoots up before me. Under what circumstances can a court initiate proceedings under 446 of Code of Criminal Procedure (the Code, for short)? What is the most essential pre-requisite for commencing proceedings under S.446 of the Code? What is meant by the expression 'the bond has been forfeited' under S.446 of the code? Who forfeits the bond? Can a court issue order 'to forfeit' a bond under S.446? What does the term 'penalty' used in S.446 of the Code mean? Can a court award a penalty, as a punishment for breach of condition of bond under S.446 of the Code? How much time a court is expected to give to the accused to show cause? In short, what are the essentials to be borne in mind while proceeding under S.446 of the Code?

4. Before considering these questions, I shall briefly narrate the facts in this case: Petitioner is an accused in a case for offence under S.138 of the Negotiable Instruments Act before a Magistrate's court. He was released on bail on his executing bond for Rs.10,000/- with two solvent sureties each for like sum on his undertaking to appear before the court on all dates of posting. But on a particular day when the case was posted for evidence petitioner and his counsel were absent. No application was also filed to excuse his absence. Though witnesses were present they could not be examined. Trial court cancelled the bail bond since condition in the bail bond was violated. But, petitioner appeared before court on the fifth day of passing of the order cancelling bond.

5. Learned Magistrate put certain questions to him regarding his absence and recorded the questions and answers. Petitioner submitted that he was not in station as he was away in Bangalore. The court held that there was no satisfactory and convincing reason for his absence and hence it was wilful. It was also found that petitioner wilfully violated condition of bail. The court observed that though it granted sufficient time to offer reason, for his absence. he did not give satisfactory reasons. Hence the court immediately ordered to forfeit the bond and also imposed penalty of Rs.9,000/­- simultaneously. The balance of Rs.1,000/-was remitted. Trial court further ordered thus: "if the petitioner fails to remit penalty and if coercive steps which are taken to realise the said amount go futile the petitioner was ordered to undergo imprisonment in civil jail for a term of six months".

6. The said order was challenged before sessions court, but it was confirmed in appeal and hence, this revision. Sri. Alan Pappali, learned counsel appearing for Petitioner strongly assailed the order of the court below on the ground that the trial court committed, an illegality by not giving an opportunity to petitioner to show cause. Though it is possi