The main legal point established in the judgment is the requirement to consider the facts and circumstances leading to the forfeiture of a bond before imposing a penalty on the sureties.

A Hariprasad, J.

1. Aggrieved by order passed by the Additional Sessions Judge-IV, Kollam in M.C.No.29 of 2017 in S.C.No.6 of 2016, imposing a penalty of Rs.one lakh each on the appellants, they are before this Court. Appellants stood as sureties for the accused in the above Sessions Case. They could not produce the accused as agreed to in the bond. Learned Sessions Judge imposed penalty finding that the bond was forfeited.

2. Heard the learned counsel for the appellants and the Public Prosecutor.

3. At the outset, I must observe that the order passed by the court below is not only harsh, but also legally unsustainable. Section 446 Cr.P.C. 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.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

4. It is to be borne in mind that Section 440 Cr.P.C. says that the amount of every bond executed under Chapter XXXIII shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. deals with bond of accused and sureties. On a reading of Section 446 Cr.P.C., it is clear that forfeiture of a bond is automatic in case the accused and the sureties commit a breach of the conditions. No act or intervention of the court is required for forfeiting a bond. It has been held in a catena of decisions that on forfeiture of the bond, the court shall not impose penalty mechanically. The facts and circumstances leading to forfeiture of the bond should be considered. It is also submitted by the learned counsel for the appellants that despite making a request before the court below for some more time to produce the accused, the court below took stringent action against the appellants. It is also submitted that the entire bond amount has been forfeited without application of mind. All these aspects are legally unsupportable and therefore, this Court has no other option, but to interfere with the order.

In the result, the appeal is allowed. Imposing penalty on the appellants is confirmed. However, the penalty amount is reduced to Rs.5,000/- (Rupee