S.R. Bannurmath, C.J.

Doubting the correctness of the law declared by the learned Single Judge in the case of Usman v. State of Kerala (2005 (4) KLT 348) and Geetha v. State of Kerala (2006 (3) KLT 960), this matter has been referred to the Division Bench.

2. Since the question before us is as to the requirement of the procedure to be followed in respect of forfeiture of bond as per S.446 of the Code of Criminal Procedure, it is not necessary to go into the facts of the case.

3. Under S.446 Cr.P.C., there are two types of bonds to be executed - (i) a bond under the Code for appearance or for production of property and (ii) any other bond under the Code. Both stand on the same footing so far as forfeiture is concerned. A bare reading of the section shows that it lays the procedure on forfeiture of such bond on the ground of violation of the conditions therein. It is not much in dispute that the object of taking surety/bond is for the purpose of ensuring availability of an accused before the Court by the surety whenever the date of the trial is fixed. The surety solemnly undertakes before the Court to keep the accused present on all the trial dates. If such an undertaking is broken, the law itself provides for taking stringent steps against the surety as if he is instrumental in allowing the accused to remain absent/abscond.

4. Considering the scope and object of S.446 Cr.P.C., the learned Single Judge in the aforesaid judgments, in the cases of Usman v. State of Kerala and Geetha v. State of Kerala (supra), held that proof of forfeiture of bond is an essential pre-requisite for commencing the proceedings under S.446 Cr.P.C. It is further held that to arrive at a satisfaction that 'the bond has been forfeited', a mere finding that the accused was absent and that his absence is not wilful or wilful may not be sufficient. It is laid down that the Court must satisfy itself that the absence was not only wilful, but such absence was with a view to hinder the course of a smooth trial and to defeat the purpose of bond and as such before holding that the bond is forfeited, the Court must record not merely how and on what basis it arrived at the satisfaction that the bond has to be forfeited, but to record the grounds of such proof and only thereafter the Court can proceed to take further steps under S.446 Cr.P.C. According to the learned Single Judge in the aforesaid judgments, failure to comply with these mandatory requirements, i.e., recording the finding as to the wilful default and non-recording the proof and consideration thereof before forfeiture of bond is an illegality as it contravenes the mandatory provisions of S.446 Cr.P.C.

5. Doubting the aforesaid dictum, another learned Single Judge has, as already noted, referred the matter to the Division Bench for consideration.

6. In our view, no elaborate discussion is required so far as the requirements and the procedure under S.446 of the Code are concerned. The section, which reads thus -

"446. Procedure when bond has been forfeited.--(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred; that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation.-- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case