Bail Bonds--Forfeiture of--Mere failure to appear before the court, in absence of any willfulness, would not amount to “a breach”
Bail--Cancellation of--Notice--Magistrate is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled.
Bail--At the time of dealing with the bail and cancellation of bail, a Judge has to adopt a humanitarian approach.

JUDGMENT

Mr. Raj Shekhar Attri, J.:- The present petition has been filed under Section 438 Code of Criminal Procedure for grant of anticipatory bail to the petitioners in case FIR No.18 dated 03.04.2017 registered for the offences punishable under Sections 498-A/406/506/34 IPC at Police Station Women Narnaul, District Mahendergarh.

2. Learned counsel for the petitioners submits that the petitioners were on bail but on 04.02.2019, they could not attend the Court, instead, moved an application seeking exemption from personal appearance which was supported by their affidavit but the learned trial court declined the said application without assigning any reason. Consequently, the bail granted to the petitioners was cancelled and their bail bonds were forfeited to the State and they were ordered to be summoned through non-bailable warrants of arrest.

3. I have heard the learned counsel for the parties and gone through the material available on record.

4. At the time of dealing with the bail and cancellation of bail, the court has to keep in mind the following principles of criminal jurisprudence:-

a) accused shall be presumed innocent unless he is proved guilty beyond reasonable doubt

b) he is a human being and may be subject to various constraints beyond his control;

c) a Judge has to adopt a humanitarian approach.

5. In criminal matters, generally, the bail orders are cancelled and bail bonds are forfeited to the State immediately on the absence of the accused. Neither a show cause nor an opportunity of being heard is afforded to him with regard to his absence. His absence may or may not be willful or may be result of any circumstances beyond his control.

6. Although, under the provisions of Section 437(5) of the Code of Criminal Procedure, a magistrate has got power to cancel the bail yet it is well settled law that before passing such an order, the learned magistrate is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled but such course has not been adopted by learned magistrate in the case in hand, therefore, it is on this ground alone, the impugned order to the extent of cancellation of bail deserves to be set aside.

7. At this juncture, it should be noticed that forfeiture of bond as indicated in Section 446 of the Criminal Procedure Code is by the act of the accused, who has committed breach of the condition imposed. Such forfeiture originates from the conduct of the accused and there is no need or occasion for the Court to pass any order to forfeit such bond. Section 446 of the Code which deals with forfeiture of bonds reads 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, (Emphasis supplied)

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, (Emphasis supplied)

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 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 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, th