IMPORTANT POINT
The main legal point established in the judgment is the requirement to adhere to the prescribed procedure under Section 446 CrPC for the forfeiture of surety bonds, including issuing show cause notices, affording opportunities for explanation or production of the accused, and ensuring proper satisfaction before imposing penalties.

JUDGMENT :

Virender Singh, J.

Appellant-Bir Singh has filed the present appeal, under Section 449 (ii) of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), against the order, dated 11th April, 2023, passed by the Court of learned Special Judge, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the trial Court’) in Cr.MA No. 193 of 2023, titled as State of H.P. versus Bir Singh.

2. The order impugned herein has been passed in proceedings, under Section 446 CrPC, in Sessions Trial No. 10 of 2021, titled as State of H.P. versus Melwin Benny Aarons. These proceedings were initiated in FIR No. 197 of 2020, registered at Police Station Aut, District Mandi, H.P.

3. According to the appellant, accused-Melwin Benny Aarons, in case FIR No. 197 of 2020, dated 21st January, 2020, moved the application, under Section 439 CrPC, which was allowed and thereafter, the appellants stood as surety for him. When, accused-Melwin Benny Aarons failed to appear before the learned trial Court, on 18th March, 2022, non-bailable warrants were issued by forfeiting his surety bond to the State of Himachal Pradesh. Thereafter, the proceedings were initiated under Section 446 CrPC.

4. Since, the prescribed procedure is stated to have not been followed, as such, the present appeal has been filed, before this Court.

5. Perusal of the record shows that on 30th December, 2022, the learned trial Court has passed the order to initiate the proceedings, under Section 446 CrPC, when sureties-Dile Ram and Bir Singh (appellant) were unable to produce the accused. On that day, the surety bonds were ordered to be forfeited to the State of Himachal Pradesh.

6. In pursuance of the said notice, the appellant filed his reply.

7. On 11th April, 2023, when the main case was listed, the respondent therein (appellant) could not appear, nor, he could produce the witness, as such, the learned trial Court has considered his reply and imposed the penalty of Rs. 1,00,000/-.

8. This order has been assailed before this Court, by way of the present appeal.

9. The proceedings were initiated under Section 446 CrPC. By way of the impugned order, the learned trial Court has passed the order to impose the penalty of Rs. 1,00,000/-, upon the appellant. To the considered opinion of this Court, the procedure, as prescribed under Section 446 CrPC has not been adhered to, by the learned trial Court, as, on 30th December, 2022, without issuing any show cause notice to forfeit the bail bonds, the bail bonds were ordered to be forfeited and thereafter, the proceedings were initiated. Even, on 11th April, 2023, the case was fixed for evidence of the appellant and on account of his non-appearance, penalty was imposed upon him, merely on the basis of the stand, as taken by him, in the reply.

10. The provisions of Section 446 CrPC are reproduced as under:

“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 8 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 may subsequently be transferred.

(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