Critical analysis on forfeiture of bail bonds and bonds under Cr.P.C
M. KARUNANITHI, B.Sc., M.L., Advocate, Senior Panel Counsel, Union of India – High Court, Madurai Bench Former Special Public Prosecutor ‘Q’ Branch CID
Introduction:-
Since, there is no provision regarding the procedure to forfeit the bail bond nor there is any definition for the term forfeiture of bail bond, the study on forfeiture of Bail Bond has got its own importance.
In chapter XXXIII, from Sections 436 to 450 the provisions for bail and bail bonds has been arranged, whether it is bailable offence or non bailable offence, an accused has to execute a bond with or without sureties. The bail granted under Section 167(2)(a)(ii) is deemed to be an order under Chapter XXXIII Cr.P.C. So, an accused enlarged on default bail has also to execute bail bond. It is also to be remembered that provision for disposal of property and chapter VIII Cr.P.C also speak about bond. So, study about bail bond and other bonds has become necessary. Hence, I intend to discuss the topic with the help of decided cases.
Forfeiture meaning
The bond has been forfeited - “Meaning”
The word ‘forfeit’ as per Black’s law dictionary – to lose, lose the right to, by some error, fault, offence, or crime, to incur a penalty to become liable to pay the payment of a sum of money, as the consequence of a certain act.
Types of bond and forms under Cr.P.C
1) Form No 3 is for bond and bail bond after arrest under a warrant.
2) Form No 12 is bond to keep the peace.
3) Form No 13 is bond for good behavior.
4) Form No 28 is for bond and bail bond on a preliminary enquiry before a police officer.
5) Form No 45 is the bond and bail bond for attendance before the officer in charge of police station or court.
6) Form 48 is notice to surety of forfeiture of bond for good behavior.
7) Form No 49 is notice to surety of forfeiture of bond for good behavior.
8) Form No 52 is bond notice to principal of forfeiture of bond to keep the peace.
It is pertinent to point out here that in the code of criminal procedure, 1973 schedule and forms have also been appended. The form No 3,12,13,28 and 45 are the form regarding bail bonds and form No 48,49 and 52 are the notice to surety and principal for breach of bond for peace and for good behavior.
Forfeiture of bond- applicability of Sec. 446 of Cr.P.C
It is relevant to state that section 446 Cr.P.C. speaks about procedure to be followed after the forfeiture of bail bond but code of criminal procedure, 1973 is silent to the effect that how and when a bond is said to be forfeited or which action of the learned judge would amounts to forfeiture of bond. Since, code of criminal procedure is silent, we have to go through the decided cases by the Hon’ble Apex court and Hon’ble high courts in this regard. Section 446 is relevant to the topic and so the same is extracted hereunder.
Section 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.”
According to section 446 Cr.P.C. the court has to satisfy that the bond has been forfeited and then call upon the person bound by such bond to pay the penalty under the bond.
(i) Now, the core question is whether accused and sureties are entitled for notice before coming to a conclusion that the disobedience is willful and bond has been forfeited?
(ii) Whether on the single non appearance the bond can be forfeited?
(iii) Are the mere issuance of NBW would mean that the bond has been forfeited?
(iv) Whether accused and surety is entitled for notice before forfeiture of bail bond?.
In order to bring home the applicability of section 446 Cr.P.C we have to prove that there is a proof that that too to the satisfaction of the court that the bond has been forfeited.
It is to be seen that section 446 Crl.P.C has been so clearly coined that “proved to the satisfaction of the court” has been used in Sec. 446 of Cr.P.C, that means the court has to hear the parties and then come to a conclusion that the non appearance is willful or not. So, the accused and surety is entitled for notice and another point is that the principle of Audi Alterm Partem is also applicable to criminal court so also notice is to be issued to accused and surety, because on such a finding parties has to all directed to pay penalty. So there must be a show cause notice to parties under the bond otherwise the forfeiture of bond will be challenged as unlawful.
It is pertinent to point out here that as per sec.446 (2) Crl.P.C if sufficient cause is not shown or penalty is not paid the court may proceed to recover the same as if such penalty were a fine imposed by it under the code of criminal procedure. The form No 48 is also states that “you are hereby required to pay the said penalty or show cause, within ….days” from this day why payment of the said sum should not be enforced against you”.
Since, form also is speak about show cause and it is termed as penalty so it is recoverable as a fine hence before passing penalty that is finding fault against a person definitely he must be given a reasonable opportunity of being heard. The Hon’ble Orissa high court in Jaganath Rout Vs state of Orissa reported in 1975 Crl.L.J 1684 and Hon’ble Delhi HC in Sham Sundar Vs state of Delhi in 1990 Crl.L.J 2370 held that on the failure of accused to appear before the police officer or court no further enquiry is necessary to forfeiture of bail bond.
Whether forfeiture of bail bond is automatic on the very absence of accused or failure of accused to appear before the police officer or court on one occasion leads to forfeiture of bond is a vital and million dollar question, that has been answered by the Hon’ble Madras High Court in three decision;
(i) Crl.O.P. (MD) No. 1439/2010 dated 25.01.2010 Prabakaran Vs. State by Inspector of Police, Kovindapadi Police Station.
(ii) 2018 (2) MLJ Crl 502 – Pillapan @ Ravikumar Vs. State.
(iii) 2019 (3) MLJ Crl 351 – Palanivel Vs. State.
In Prabakaran Vs. state Hon’ble Madras High Court has held as follows;
“Para 10 .... “On receipt of notice, if the accused satisfies the court that he was prevented from appearing before the court due to sufficient reason, like the one, illustrated above, the court may not record such satisfaction holding that the accused had committed a breach of bond. The language “ proved to the satisfaction” needs to be underscored, which clears doubt, if any, that the term “Proof” held within it “disproof” by the accused/surety also. Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused/surety. Such opportunity shall satisfy the principles of natural justice “Audi Alteram Partem” which is not alien to criminal law s it has the sanction of the Constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the learned magistrate has to get satisfied himself on proof as to whether there was any breach of the terms of the bond”
In Pillappan @ Ravikumar Vs. State Hon’ble Madras High Court has held as follows;
“The order of forfeiture of bond that has been recorded by the court will not automatically have any consequence on the sureties U/s. 446 Crl.P.C because a seperate notice is required to be given to the sureties to show cause as to why penalty should not be paid by them and only if they are not able to show cause can the court proceed to recover the penalty….”
2019 (3) MLJ Crl 351- Palanivel Vs. State
“ It is important to understand that cancellation of bail is not synonymous to cancellation of bail bond.”
AIR 1960 SC 1185 – Ghulam Mehdi Vs. State of Rajasthan
“Before a surety become liable to pay the amount of the bond forfeited, it is necessary to give notice and if the sureties fail to show cause only then can the court proceed to recover money. Where no opportunity has been given to show cause why, he should not be made to pay, the proceedings should be quashed…”
1997 (1) Crimes 326 Madras – Chander Mowleeswaran Vs. State of Tamilnadu
“Where show cause notice not issued to the sureties, the forfeiture is not sustainable.”
Whether surety bond is a contract?
1972 (3) SCC 85 – State of Maharstra Vs. Dadamiyc Babumiya
“…A surety bond is a contract and it is a question and to how far its terms can be considered to have been varied by any unilateral act….”
1974 Crl LJ 1075 - Mahadeo Amrut Gajbhiye Vs. State of Maharashtra
“It is no doubt true that the matter relating to the grant of bail is governed by the provisions of the Code of Criminal procedure, but that does not rule out the nature of the legal relationship between the state and the person to be released on the one hand and the state and the surety on the other, which must on the terms of the surety bond itself be governed by nothing more than the general principles relating to the enforcement of a contractual liability….”
Conclusion
Thus, as per the discussions made above before proceeding to forfeit the bond and bail band, prior notice has to be given to the accused as well to the sureties otherwise the proceedings will be declared as unsustainable, before proceeding U/s. 446 of Cr.P.C, the court has to come to a conclusion that there is proof that the bond has been forfeited, So, in order to arrive at such conclusion, the notice to parties is necessary.